| Fiji Islands - Hoytte v Prasad - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. ABU0044 OF 1995S
(Lautoka High Court Action No. HBC0146 of 1995L)
BETWEEN:
BOB HOYTTE
of DRASA VITOGO, LAUTOKA
Appellant/Applicant
AND:
SAJEN PRASAD
(f/n Deo Narayan) of
WAIWAI, BA, LABOURER
Respondent
Mr P.Ar P.A. Cowey for the Appellant/Applicant
Mr H. Shah for the Respondent
DECISION
On 8 June 1995 Sadal J. ordered that the interim injunction he granted ex parte on 19 May 1995 be extended until further order of
the Court. The effect of his interlocutory decision is that vehicle No. E4777 which he ordered to be released to the Respondent (Original
Plaintiff) and which is now already in the custody of the Respondent is to remain in his safe custody during the pendency of Lautoka
High Court Action No. HBC0146 of 1995.
The Appellant/Applicant (Original Defendant) filed a Notice of Appeal against that decision on 24 August 1995. The grounds of appeal
are as follows:
"(a) The Learned Judge erred in law in extending the Injunction which was originally granted ex parte without hearing any submissions from the Defendant when the Defendant was opposing any extension thereto.
(b) The Learned Judge erred in law in extending the Injunction originally granted ex parte without considering Affidavits filed by the Defendant
in opposing any grant or extension of the Injunction.
(c) The Learned Judge erred in law in extending the Injunction originally granted ex parte on the basis that there was an application
by the Plaintiff to extend the Injunction while the Defendant did not have a proper written application to dissolve the Injunction.
(d) The Learned Judge erred in law in extending the Injunction which was originally obtained ex parte without considering or applying
the principles of law governing the extension of an Injunction originally granted ex parte."
The Appellant/Applicant is now seeking an interim order from a single judge of this Court "that execution and all further proceedings
on the decision of Mr S.N. Sadal (sic) dated 6 June 1995 be stayed."
This application is misconceived. There is nothing to stay as the vehicle in question is already in the custody of the Plaintiff as
an interim measure following the Court order. The substantive question as to who is entitled to the vehicle is still to be decided
by the High Court. The effect of filing an appeal against the interlocutory order and the making of the present application, is to
merely delay the resolution of the substantive issue by the trial Court. If the Defendant succeeds in the Court below he will either
get the vehicle back or be awarded damages. It is in his interest that the trial should proceed to finality as soon as possible.
No application is made to me that the vehicle should be returned to the Defendant in the meantime. If such an application were made
I doubt if a single judge would have jurisdiction to grant it bearing in mind the nature of appeal pending before the Court of Appeal.
To grant such an application would be to effectively overturn the interlocutory order made by the Court below and to pre-empt the
appeal. I am not sitting here in an appellate capacity. Adjudication of the appeal is the function of the Court of Appeal and not
of a single judge.
Even if I were to interpret the provisions of sections 20(f) and (g) of the Court of Appeal Act, as liberally as possible in order to do justice between the parties I would not have made any order in favour of the Appellant/Applicant
because -
(a) there are no exceptional circumstances.
(b) appeal is not likely to be rendered nugatory, the subject matter of dispute is in safe custody and damages is a possible remedy;
(c) the Applicant is not likely to be prejudiced and there is no injustice because the lower Court's order is only an interim measure
pending trial;
(d) there is no evidence that the vehicle is being used or misused,
(e) The Appellant/Applicant has made no application in the Court below to dissolve the injunction; only a stay application was made
and it was refused,
(f) the likelihood of the appeal succeeding is minimal.
It has been said time and again that appeals against interlocutory orders pending determination of the substantive issue will seldom
be allowed unless they are plainly wrong. To make any order upsetting the status quo would be to encourage unnecessary appeals against
interlocutory orders.
If the Appellant/Applicant has any evidence that the Respondent is using or misusing the vehicle instead of merely keeping it in safe
custody, it would be open to him to move the primary Court in the first instance to review its interlocutory order and dissolve the
injunction on the basis of changed circumstances or of defiance of a Court order.
Having considered the affidavits and submissions in the light of my concurrent jurisdiction I am satisfied that there is no merit
in this application.
The application is, therefore, dismissed with costs to the Respondent.
Sir Moti Tikaram
President, Fiji Court of Appeal
Suva,
18/12/95.
ABU0044D.95S
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