IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 595 OF 1991

Between:

KINIJIOJI TUISAWAU
Plaintiff

- and -

1. ABRAHAM KARIM
s/o Abdul Karim
2. KAMRAL NISHA KARIM
d/o Abdul Satar Khan
Defendants

Mr. S. Parshotam for the Plaintiff/Applicant
Mr. A. Kohli for the Defendants/Respondents

DECISION
(Stay Application pending Appeal)

By Summons dated 10 April 1995 the applicant (the original Plaintiff) is praying for an order that execution and further proceedings on the Order of this Court dated 31 day of January 1996 may be stayed pending the hearing of the appeal therefrom, of which the Plaintiff has given notice by Notice of Appeal of even date.

The applicant is relying on the Affidavit sworn by him on the said 10 April in support. The Respondent through his attorney under a Power of Attorney had sworn an affidavit on 26 April 1996 in reply.

Both counsel made submissions before me and I have considered them in the light of the affidavits filed herein.

It is Mr. Parshotam's contention that if the applicant is evicted from the property in question his appeal will be rendered wholly nugatory and that "this will deprive him of pursuing his appeal for specific performance" of the alleged contract "and no amount of damages will adequately compensate him for the loss of what has been his home for the last 10 years". He said that the Court has found that no such contract existed and that the applicant should vacate the property. It is against this decision that the applicant has appealed.

Mr. Kohli for the Respondents submits, inter alia, that the Respondents who are the registered proprietors of the property should not be deprived of the fruits of the litigation when the claim for specific performance was dismissed and the order made on the Respondents' Counterclaim for payment of $33,600 for rent and mesne profits. He said that the Respondents have not received a single cent from the Applicant for the whole period (9 years) that he or his family has resided in the house on the said property.

He further submits that the Respondents will be greatly prejudiced if the application was granted as looking at the applicant's financial position with receiving order (in bankruptcy) against him there is no guarantee that the said judgment sum will ever be paid.

Mr. Kohli said that the applicant's claim in the writ was for specific performance and alternatively damages for breach of contract. Why cannot he be content with damages if he is successful he asks? He says that there is no special value attached to this property that he has to insist on remaining in the property while he pursues his appeal.

The principles governing the grant of stay of execution pending appeal are set out in the notes to Or.59 r13/1 (The Supreme Court Practice 1979 p.909). It states, inter alia, that:

'the Court does not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled", pending an appeal (THE ANNOT LYLE (1886) 11 P.D at p.116, C.A., MONK v BARTRAM (1891) 1 Q.B. 346)'.

Bearing in mind the facts of this case and the circumstances in which the applicant came to stay on the property, it does not entitle the applicant to remain there and not pay anything for occupying the house for so many years granted that he came there in the first place as a caretaker but then afterwards was required as I found and ordered that he pay rent and mesne profits for his occupation of the said property.

In this action the applicant failed in his claim for specific performance and on 31 January 1996 I made an order dismissing the action with costs. However, on the Respondents' Counterclaim I made an order for immediate vacant possession but granted stay of execution for 28 days and also ordered that applicant pay the sum of $33,600 for rent and mesne profits (for the period 1 July 1991 to 31 January 1996 i.e. 55 months at $600 per month). The applicant has not complied with the order for payment and has not vacated the premises. He did not appeal immediately but made the present application after the bailiff went to the property to execute the Writ of Possession although his appeal is within time. He wants to live there free of charge even after judgment and continues to live there free while his appeal is pending which could be for another twelve months. This type of conduct on the part of the applicant cannot be allowed to continue without prejudicing greatly the respondents who are the registered proprietors. His counsel, in answer to my question, said that no condition regarding deposit can be made in this case nor is there any offer at all to deposit any sum into Court.

I have perused the applicant's grounds of appeal as set out in the "Notice of Appeal". All I need say, that although they are matters for consideration by the appeal Court, my judgment speaks for itself; the Court would require "special circumstances" to be shown before stay is granted as stated in MONK BARTRAM (supra) where it was held:

"Where a stay of execution has been refused by the judge at the trial, an application made to the Court of Appeal for a stay pending an appeal must be supported by special circumstances, and allegations that there has been misdirection, that the 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 on which the Court will grant the application." (underlining mine for emphasis)

The alleged misdirection and judgment being "against weight of evidence" in the said grounds will be of no avail to enable the applicant to succeed in obtaining a stay. The fact that he has been in the property is no "special circumstance", if anything, the respondents have suffered great loss of income thereby.

A point has been made and which ought to be considered in this type of application is that "where a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory" (THE SUPREME COURT PRACTICE ibid p.909; WILSON CHURCH (No. 2)(1879), 12 Ch.D. at pp 458-459, C.A.). In this case there is no possibility of that happening for if the appeal is successful the Respondents will obviously have to give possession back to the applicant or compensate him (per DYKE J in KHAIRUL NISHA d/o Changa Mia & MOHAMMED ALIM KHAN & MOHAMMED AQIB KHAN and BA MEAT COMPANY (C.A. 114/80 Sup. Ct., Lautoka, Cyclostyled judgment p.2). It is just that in all the circumstances the applicant should be confined to his remedy in damages if he is successful.

At this juncture I would like to point out that, if the applicant was unsuccessful in his claim for specific performance if he was not in the property no question of him wanting to stay on the property will have arisen. Also, in this case, it was not part of any alleged agreement that he would remain in the property until the transaction is finalized so the question of occupation of the property has no bearing on the issue of specific performance. The judgment for immediate vacant possession is on the counterclaim and is not tied to the first limb of the action which is for specific performance. Hence what right has the applicant to forcefully remain there? None whatsoever I would say.

Now, as far as the appeal is concerned why cannot he still pursue it without wanting to stay on the subject property? Mr. Singh (the Attorney for the Respondent) made a very valid point in this regard in paragraph 10 of his Reply, which I uphold, when he stated:

That with reference in paragraph 16, I cannot agree that the appeal would be rendered nugatory if the stay is not granted, because the Plaintiff's action is for specific performance of an alleged contract for the Sale and Purchase of the said property and it is only on settlement that possession is given to a purchaser in normal situations. Therefore, the Plaintiff could pursue his appeal even if he is not in occupation of the said property."

One other point which has been laboured upon by the Respondents and that is that the applicant has a receiving order against him and that he will not be able raise finance to purchase the property despite the CMLA's letter given sometime ago to the effect that $55,000 is available.

I cannot place any reliance on the availability of the funds. No financier would advance any moneys to a man who is half way to bankruptcy with a substantial amount running into thousands of dollars owing to creditors. This is only throwing dust in Court's eye. To put in a nutshell this applicant is in no position to purchase the property for whatever sum even if he is successful in his appeal.

Mr. Parshotam referred the Court to the following paragraph from the headnote to LINOTYPE-HELL FINANCE LTD v BAKER (1992) 4 AER 887:

"Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success."

There is no question of him being "ruined" from what I have stated hereabove. He is already "in bankruptcy".

The Court has an absolute and unfettered discretion as to the granting or refusing a stay. LORD ESHER, M.R. in THE ATTORNEY-GENERAL v EMERSON and others 1890 24 QBD C.A. p. 56 at 58 said:

"... the Court has a discretion in each case. ... I feel certain that this Court has over and over again refused to say there was any established practice, but has said that it would exercise its discretion in each case."

Similarly, LINDLEY, L.J. (ibid p.59) said:

"It is not competent for any Court or judge to lay down a rule which shall limit the exercise of that discretion."

In all the circumstances of this case in exercising its discretion the Court does a balancing exercise. I have on the one hand the Respondents who are the registered proprietors of the property who had not derived any income whatsoever from the said property because of the applicant's unlawful occupation of it and at the same time they are successful defendants and fully entitled to the fruits of the victory, and on the other hand there is the unsuccessful Plaintiff (both in the claim and counterclaim) reaping all the benefits of living completely free of rent hoping that he will be successful in his appeal.

I must say that the Respondents as registered proprietors have greater interest in the property than the applicant. As stated already there is no reason for the applicant to remain in the property indefinitely, in any case in normal conveyancing practice, in the absence of any agreement to the contrary 'settlement' of transaction is effected when there is payment of purchase price etc and it is then that possession is given to the purchaser.

I am of the view that the applicant can still present his appeal without having to insist on remaining in possession.

Therefore in the exercise of court's discretion I have to consider all the factors that are necessary to meet the ends of justice and the interest of the parties. The scale tips in favour of the respondents and their interest need greater protection than those of the applicant as they would suffer greater prejudice if stay was granted.

For these reasons the summons is dismissed with costs to the respondents to be taxed if not agreed.

D. Pathik
Judge

At Suva
17 May 1996
HBC0595D.91S