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Naidu v Boladuadua [2013] FJCA 5; ABU014.2011 (25 January 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CIVIL APPEAL NO. ABU014 OF 2011
[High Court Civil Appeal No. HBC 189 of 2007]

BETWEEN:

KRISHNA SAMI NAIDU
Appellant

AND:

AMITAI BOLADUADUA
1st Respondent

NATIVE LAND TRUST BOARD
2nd Respondent

Coram : Chandra RJA
Counsel : Mr. N. Nawaikula for Appellant
Mr. K.Vuataki for 1st Respondent
Ms. L. Komaitai for 2nd Respondent

Date of Hearing : 4 November 2012
Date of Ruling : 25 January 2013

RULING

1. This is an application for stay of execution of the orders made by the High Court in Civil High Court Action No.189 of 2007L on 24th March 2011.
   
2. The Appellant has filed an affidavit in support of his application and has stated therein that his claim had been dismissed by the learned High Court Judge, that he has lodged a Notice of Appeal, that he seeks an order for stay of the High Court proceedings until the appeal is heard and determined, that he verily believes that his grounds of appeal have merits and has reasonable prospects in succeeding in his appeal.
   
3. The grounds of appeal set out in the notice of appeal are as follows:
   
   • (1) That the leaned Judge erred in fact and law in law in finding that the claim must fail for total failure of consideration.
     
   • (2) That the learned Judge erred in law and in fact in finding that the contract must fail for fundamental breach of contract.
     
   • (3) That the learned Judge erred in law and in fact in failing to acknowledge that the 1st Defendant has received $10,000.
     
4. The parties filed their written submissions and the 1st and 2nd Respondent had also filed their objections regarding the application for stay by way of affidavits.
   
5. The Appellant is seeking stay of the orders of the High Court dismissing his claim and awarding costs to be paid to each of the Respondents. The Appellant had in his statement of claim in the High Court sought an injunction, an order for specific performance, general damages, special damages, exemplary damages and costs.
   
6. Both parties have in their submissions relied on the principles to be applied in an application for stay pending appeal.
   
7. It is a general rule that an appeal does not operate as a stay of execution of orders and therefore there has to be substantial reasons which have merit to grant a stay.
   
8. This Court has a statutory right to entertain an application for stay and S.13 of the Court of Appeal Act & Rules (Cap.12) provides the statutory basis. Abhay Kumar Singh v Chief Registrar, Civil Appeal No.ABU3/2010.
   
9. The Appellant in his written submissions has listed out a number of instances where a stay has been allowed by Court, which when considered have been based on the particular circumstances of each and every case.
   
10. The Appellant further has submitted that the following general principles would apply in an application for a stay:
    
    1. The Court has a statutory right to entertain an application for a stay.
       
    2. The general rule is that an appeal does not operate as a stay.
       
    3. It is the general policy that the courts will not deny a successful litigant the fruits of his decision.
       
    4. The Court may in a special case grant a stay of the orders below.
       
    5. The court's power to grant a stay is discretionary.
       
    6. Money orders do not generally entitle a stay which may be granted in very exceptional cases.
       
    7. The parties may consent to a stay order being made.
       
    8. A stay will be granted to prevent prejudice to a party.
       
    9. The likelihood that an appeal will succeed is a consideration that will merit a stay.
       
11. In Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited [2005] FJCA13 the principles on a stay application were stated as follows:
    

"[7] The principles to be applied on an application for stay pending appeal are conveniently summarized in the New Zealand text, McGecahn on Procedure (2005):

"On a stay application the Court's task is "carefully to weight all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful": Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at p.87.

The following non-comprehensive list of factors conventionally taken into account by a court in considering a stay emerge from Dymocks Franchise Systems (SW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13PRNZ 48, at p.50 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (12993) 7PRNZ 200:

(a) Whether, if no stay is granted, the applicant's right of appeal will be rendered nugatory (this is not determinative). Phillip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2NZLR 41 (CA).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo."

12. In his statement of claim to the High Court the Appellant had sought injunctive relief, an order for specific performance and also damages including exemplary damages. It is a basic principle that once a claim for specific performance is sought there cannot a claim for damages also.
    
13. The learned High Court Judge in dismissing the claim of the Appellant has gone into the evidence both oral and documentary and arrived at his conclusion against which decision the Appellant has filed his appeal.
    
14. Since the Appellant has claimed damages in his original claim, his claim for injunctive relief or specific performance cannot succeed. His claim for damages can be proceeded with by the Appellant without a stay regarding the orders for payment of costs to the Respondents. . The Appellant's affidavit does not set out any grounds which address the basis on which a stay could be granted by Court.
    
15. Since the Appellant can pursue his claim for damages, his right of appeal will not be rendered nugatory, nor will it injuriously affect him, if a stay is not granted.
    
16. Further, on the question of the prosecution of the appeal being bona fide, the learned High court Judge had not accepted the evidence of the Appellant regarding the payment of monies (which of course is a matter to be gone into at the appeal) and therefore casts doubts as to the Appellant's bona fides.
    
17. Since the 1st Respondent had entered into a transaction with a third party and much progress had been made regarding same, if a stay order is granted it would adversely affect the interests of the third party.
    
18. In the matter before Court there is no novel or important question involved, as it is based purely on the fundamental principles of a contract of sale.
    
19. At the time that the Appellant made his claim, the 1st Respondent had already entered into a contract with a third party who has not been made a party to his action by the Appellant. In such a situation the balance of convenience cannot be said to lie with the Appellant who is seeking a stay order.
    
20. A further aspect that would necessitate consideration is as to the likelihood of success of the Appellant's appeal. In Attorney General of Fiji v Dre [2011] FJCA 11, Justice Marshall having analysed the law applicable in England and in Fiji regarding the granting of stay orders stated that the fact of an Appellant having low to non-existent chance of success in his appeal must determine his application. In the present case there is a strong finding of fact by the learned High Court Judge which would be material in determining the likelihood of success of the appeal of Appellant and which make the chances of success of the Appeal of the Appellant to be low to non-existent.
    
21. In the above circumstances, the application of the Appellant for a stay order is refused.
    
22. The orders of the Court are:
    
    • (a) That the costs ordered by the High Court to be paid to the 1st and 2nd Respondents;
      
    • (b) That the Appellant pay costs of $1500 each to the 1st and 2nd Respondents being costs in this application.
      

Suresh Chandra
Resident Justice of Appeal