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Ali v Ambalal [1995] FJHC 141; HBC0593d.94s (5 September 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC 593 OF 1994

BETWEEN:

MOHAMMED ESHAQ ALI
(father's name Razak Ali) and
ZAHEERUN NISHA ALI
(father's name Wali Mohammed) both
of Nadi in Fiji, Airport Manager
and Domestic Duties respectively
- Plaintiffs

AND

ROHIT TARUN KUMAR AMBALAL
- Defendant

R. Patel for the Plaintiffs
M.B. Patel for the Defendant

Date of Hearing: 30th August 1995
Date of Ruling: 5th September 1995

RULING

The Plaintiffs apply for a Stay of Execution of a judgment which I gave in favour of the Defendant on the 6th of July 1995. The brief facts are that the Plaintiffs claim that on the 6th of May 1994 the Defendant entered into an Agreement to sell a commercial property at Martintar at Nadi for a price of $180,000.00. They later claimed that the price was reduced to $170,000.00 although the price on the Agreement remained at $180,000.00. The Plaintiffs claim that the document constituting the Agreement is a letter dated 6th May 1994.

The Defendant alleges that it was expressly agreed between himself and the First-named Plaintiff that after the 31st of May 1994 the dealing was to be rescinded if no settlement was made. Because no settlement was effected by 31st May 1994 the Defendant has entered into an Agreement for the sale of the property to a third party for the sum of $220,000.00.

Although as I stated on page 6 of my judgment there was a certain conflict in the affidavits which have been filed on behalf of the parties which at first glance might be thought to raise some triable issues, I came to the conclusion that the matter could be resolved at this stage because in my judgment it raised two questions of law which I resolved in favour of the Defendant.

It was not disputed that the Defendant had written to the Plaintiffs on 6th May 1994 stating that he had agreed to sell the property to them for $180,000.00 and that this Agreement would be no longer binding on the Defendant if the Plaintiffs had not paid the purchase price by the 31st of May 1994 in which event the Defendant reserved the right to sell the property to any other interested parties in Nadi.

The other issue not contested was that the Defendant had uplifted a Transfer from the office of the Plaintiffs' former solicitors but despite a letter written by those solicitors to the Defendant on the 8th of September 1994 requesting him to execute the transfer document, the Defendant ignored this request.

It was also agreed that two weeks later the Defendant also failed to reply to a letter from the Plaintiffs' present solicitors and the Plaintiffs claim that these failures showed that the Defendant had not made time the essence of his contract and that he was not insisting on settlement by the 31st of May 1994.

The Defendant denies that the Plaintiffs had any caveatable interest in the land, a caveat against which had been lodged by the Plaintiffs' solicitors on the 15th of September 1994.

The questions of law which I held were raised by the agreed facts were:

(1) Had there been part performance of the Agreement by the Plaintiffs?

(2) Did the Plaintiffs have any Caveatable interest in the land?

I answered both questions in favour of the Defendant.

The principal ground argued before me by counsel for the Plaintiffs for granting a stay was that if I refused to grant one the Plaintiffs' appeal to the Court of Appeal would be nugatory. Notice of Appeal was lodged by the Plaintiffs on or about 17th July 1995.

The second ground was that the Plaintiffs had a right to test my judgment and that if oral evidence had been called the result would have been totally different. Counsel for the Plaintiffs also stated that they need show only an arguable cause for them to be given a Stay of Execution.

For the Defendant Mr. M.B. Patel argued that I should not grant a stay on the ground that a successful litigant ought not to be deprived of the fruits of his judgment and that no special circumstances had been alleged by the Plaintiffs in support of their application for a stay. Mr. Patel stated that to grant a stay would prevent the Defendant from dealing with the property in any way either by selling, leasing or mortgaging it and this would be unjust.

In reply to these submissions counsel for the Plaintiffs first gave an undertaking in damages on their behalf and then submitted that if I refused a stay the Plaintiffs' appeal would be rendered nugatory.

The law on whether to grant a stay pending an appeal is now well settled. I considered several of the authorities in Civil Action No. 462 of 1991 Stinson Pearce Limited v. Jamnadas Sports (Fiji) Limited, unreported judgment of the 30th of November 1992 and they have been considered more recently in two judgments of Pathik J. in Civil Action No. 389 of 1993 Tradewinds Marine Limited and Oceanic Developers (Fiji) Limited v. Tevita Fa, unreported judgment of 20th October 1994 and Civil Action No. HBC0377 of 1994 Chan Lum and Wong Chow Lan v. Raymond Stoddart and Patricia Stoddart, unreported judgment of 11th November 1994. Some of the authorities cited by Pathik J. in Tradewinds Marine Limited and Oceanic Developers (Fiji) Limited v. Tevita Fa included The Annot Lyle (1886), 11 P.D. at p.116 C.A. where it appears the phrase "depriving a successful litigant of the fruits of his litigation" was first coined.

In the earlier case of Wilson v. Church (No. 2) (1879) 12 Ch.D. 458 at 459 the Court of Appeal held 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".

Of course on the other side of the coin is the fact that prima facie my judgment is at the moment at least correct and the Defendant is entitled to say that he should not be deprived of the fruits of his victory.

In Tradewinds Marine Limited and Oceanic Developers (Fiji) Limited v. Tevita Fa it seems the principal reason why Pathik J. refused to grant a stay pending appeal to the Defendant was that if the Defendant's appeal was successful the Plaintiffs would obviously have to give possession back to him of the premises which he was occupying under a sub-lease or compensate him.

In the instant case the facts are different. The Defendant, having been successful before me, wants to sell the property to his agreed purchaser as soon as possible. If this were done and the Plaintiffs' appeal were successful obviously the appeal would be nugatory.

As the Plaintiffs have only to show an arguable case I consider that on the material they have established this. In my view they should at least be given a chance to test my judgment in the Court of Appeal.

I appreciate that it would probably not be possible for the appeal to be held before the February sittings next year of the Court of Appeal and that the delay will probably cause the Defendant loss.

To some extent I think this can be alleviated by the Plaintiffs' undertaking in damages. The parties may be well advised to attempt to obtain an early hearing in the Court of Appeal. The notes of argument before me when I heard the case on the 22nd of March are fairly short and will not take long to transcribe.

The orders I therefore make are that execution of my judgment of 6th July 1995 is to be stayed until the Plaintiffs' appeal is determined by the Court of Appeal and that the Plaintiffs' Caveat No. 365428 registered against the land comprised in Certificate of Title No. 13196 being Lot 39 on Deposited Plan No. 2069 be extended until further order of the Court of Appeal.

JOHN E. BYRNE
JUDGE

List of authorities referred to in judgment:

The Annot Lyle (1886), 11 P.D. at p.116.
Wilson v. Church (No. 2) (1879) 12 Ch.D 458 at 459.
Chan Lum and Another v. Raymond Stoddart and Other, Civil Action No. HBC0377 of 1994, unreported judgment of Pathik J. dated 11th November 1994.
Stinson Pearce Limited v. Jamnadas Sports (Fiji) Limited, Civil Action No. 462 of 1991, unreported judgment of Byrne J. of 30th November 1992.
Tradewinds Marine Limited and Another v. Tevita Fa, Civil Action No. 389 of 1993, unreported judgment of Pathik J. of 20th October 1994.

No other cases were cited in argument.

HBC0593D.94S