IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 389 OF 1993

Between:

TRADEWINDS MARINE LIMITED and
OCEANIC DEVELOPERS (FIJI) LIMITED
Plaintiffs

- and -

TEVITA FA
Defendant

Mr. W. Morgan for the Plaintiffs
Mr. H. M. Patel for the Defendant

RULING

By a Motion dated 2 September 1994 the defendant has applied to this Court for an Order that execution of the Judgment given by this Court on 15 July 1994 for immediate vacant possession herein be stayed pending the hearing and determination of the defendant's appeal to the Fiji Court of Appeal of which Notice of Appeal was given on the said 2 September.

The grounds on which the defendant relies upon are set out in the Affidavit of DEWA NADAN, the defendant's the Chief Law Clerk, and filed herein.

On 12 and 20 September 1994 both counsel made their submissions.

The bulk of Mr. Patel's written submission consists of elaboration of grounds of appeal citing a number of authorities. This is done to show that the defendant has good grounds of appeal. Mr. Patel, whilst agreeing that the successful party should not be deprived of the fruits of its victory (MOUNTS v BARTRAM (1891) 1 Q.B. 346) states that here, "the application is in reality an application to the Court's inherent powers to do whatever is necessary to prevent injustice in relation to proceedings before the Court which will result from a loss of possession of the property (DWYER v NATIONAL COMPANIES & SECURITIES COMMISSION (1988 15 NSWLR 285)".

Mr. Patel further submits that the circumstances do not have to be exceptional but sufficient to warrant the exercise of discretion. He says that in this case unless the stay is granted the appeal will be nugatory and "further the utility of the proceedings in No. 563 of 1993 will be equally otiose" (item 3.6 of written submission).

Mr. Morgan opposing the application submits that the Court has dealt with the "issue in so far as it was necessary and that there was nothing wrong with that". He says that the defendant is trying to establish an equitable claim but that is not relevant to the application for stay. In this case there was no consent of the Director of Lands and before a stay is granted the circumstances of the case have to be considered.

In exercising the Court's discretion in considering an application for stay, there are two very important factors to be borne in mind. Firstly, that the Court does not "make a practice of depriving a successful litigant of the fruits of his litigation, ..." pending an appeal (THE ANNOT LYLE (1886), 11 P.D. at p. 116, C.A.). Secondly, that "when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory" (WILSON v CHURCH (No. 2) (1879) 12 Ch. D. at pp. 458, 459 C.A.).

On the grounds on which stay is granted, HALSBURY'S LAWS OF ENGLAND Vol. 17 4th Ed. at page 455 states:

"The Court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to in affidavit unless the application is made at the hearing ..."

This application has to be considered bearing in mind the essential facts of the case. These are covered in my said judgment herein but for the purposes of the present application the following are relevant considerations: this was an action for vacant possession and an order was made in favour of the Plaintiffs for the reasons given in my said judgment more particularly because the agreement to let the property out on rent (by the previous registered proprietors) was null and void as it was done without the consent of the Director of Lands, and the law in such cases being as clear as crystal. I considered the allegations such as that of 'fraud' and 'option to purchase' because they were raised by the defendant in his affidavit in reply in his attempt to show cause as to his right to possession, but these allegations although raised did not prevent me in my view from considering the section 169 application for vacant possession and my dealing with these matters did not in any way affect the issue in action No. 569/93. In Action No. 569/93 the defendant is not claiming a "right to possession" against the Plaintiffs (who are the second defendants in that action and who it is alleged acted in concert with the first defendant in the sale of the property in question thus constituting a 'fraud') and I made this quite clear on page 13 of my judgment when I said:

"In the said civil action which the defendant has instituted, he emphasizes the point that he was precluded by the previous owners from exercising the option and alternatively they acted in concert with the Plaintiffs to sell the property thus constituting a fraud. As I said before he is not claiming a right to possession of the property in that action but is merely seeking a declaration that the transfer of the property to the Plaintiffs be set aside. Here in the Summons before me as I said earlier I am concerned with determining only the defendant's right to possession of the property."

The defendant no doubt has a right of appeal and for this purpose he has given Notice of Appeal in which he is seeking a stay of my order and extension of time to lodge the appeal. He now realizes according to his counsel that he has to apply to this Court first for a 'stay'.

This is an application to the discretion of the Court. In the headnote to WILSON v CHURCH (1879 - 80) 12 Ch.D. p. 454 it is stated:

"Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in ordinary cases to make such order for staying proceedings under the judgment appealed from as will prevent the appeal, if successful, from being nugatory. But the Court will not interfere if the appeal appears not to be bona fide, or there are other sufficient exceptional circumstances ....." (underlining mine).

There is nothing on the evidence before me to suggest that the appeal if successful will be nugatory. The defendant himself has not said anything to show how it will be nugatory. As was said by DYKE J in a similar situation in KHAIRUL NISHA d/o Changa Mia and MOHAMMED ALIM KHAN & MOHAMMED AQIB KHAN v BA MEAT COMPANY (Action No. 114/80 West Div. cyclostyled judgment page 2) that "if the defendant's appeal is successful the plaintiff will obviously have to give possession back to the defendant, or compensate him", the same could be said in this case. In KHAIRUL NISHA (supra), DYKE J refused the application and I agree with his reasoning in doing so.

In this application the affidavit in support has been sworn by the defendant's Chief Law Clerk and not by the defendant himself who runs a law practice from the said property. All that I have before me is the Grounds of Appeal annexed to the Affidavit. Neither, the said annexure nor the Affidavit give any indication how execution of the order will affect him in so far as parting with possession is concerned, apart from stating that he has "good grounds upon which we could be successful" in this appeal.

This is not a special circumstance for if he is successful, as I said before, he can have possession back or be compensated.

In his grounds of appeal he has raised a number of matters; they do not amount to special circumstances for the purposes of an application of this nature for it has been held that allegations such as:

"that there has been misdirection, that a verdict or judgment was against the weight of evidence, or that there was no evidence to support the verdict or judgment, are not special circumstances in which the Court will grant an application" (MONK v BARTRAM 1891 QBD p. 346)

For the foregoing reasons, after considering both counsel's submissions and bearing in mind the principles governing an application of this nature, in the exercise of my discretion, I do not consider this to be a proper case in which to grant the stay sought pending the hearing and determination of the proposed appeal of which only Notice of Appeal has been given.

The application is therefore dismissed with costs which is to be taxed unless agreed.

D. Pathik
Judge

At Suva
20 October 1994
HBC0389D.93S