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Hamid v Prasad [2003] FJHC 251; HBC0031d.2002S (31 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 31 OF 2002

Between:

ABDUL HAMID
f/n Ahmed Ali
Plaintiff/Respondent

and

HARDEO PRASAD f/n Badal
by his Executor and Trustee
SARVEEN DUTT f/n Ram Dutt
Defendant/Appellant

Mr. S. P. Sharma for the Plaintiff/Respondent
Mr. S. Chandra for the Defendant/Appellant

DECISION
(Stay of Execution pending Appeal)

This is the defendant’s/appellant’s application for stay of execution of judgment delivered by me on 1 August 2003 ordering the defendant to give immediate vacant possession of the land in question to the plaintiff on an application made under s169 of the Land Transfer Act, Cap. 131 with costs to be paid by the defendant to the plaintiff’s solicitor the sum of $400.00.

The defendant filed a Notice of Appeal to Court of Appeal on 12 August 2003 setting out the grounds of appeal.

As ordered both counsel filed written submissions.

Appellant’s submission

In his submission the learned counsel for the appellant sets out a chronology of events commencing from 2 March 1994 when a Writ of Summons was filed by the appellant against the respondent. This action is still pending and has got to the stage when on 11 November 2002 an order in terms of Summons for Direction has been made. What steps had been taken since (almost a year now) is not known.

The appellant in effect says that if he were to dismantle the portion of the house which is on respondent’s portion of the land he will suffer great loss. He says that the portion of his dwelling-house which is on the respondent’s land was constructed with the approval of ‘Town Planning Board’ and ‘Suva Rural Local Authority’. He said that there was ‘assurance and understanding’ from the Director of Lands so he built the house, latrine and put up a fence.

The appellant’s argument is why can’t the respondent wait for appeal to be heard in about 5 or 6 months when he has waited for about 9 years now. In that action (C.A. 89/94) there is allegation of fraud.

Because of the alleged fraud the respondent has not acquired an indefeasible title to the land under section 41 of the Land Transfer Act, Cap. 131.

His first argument is that the appeal will be rendered nugatory if the appeal is decided against the respondent. He says that there are a number of triable issues against the registered lease such as fraud, inapplicability of the indefeasible principle, and error on the face of the registered lease. These triable issues need to be considered along with the issue of equitable interests of the appellant in the land.

On the grounds submitted by him counsel submits that there is a ‘highly likely chance’ of a success for appeal in the Court of Appeal.

Respondent’s submission

The learned counsel for the respondent submitted that this is not an appropriate case for grant of a stay. He referred the Court to a number of decisions involving possession cases wherein application for stay of execution was considered.

Counsel submits that there is no evidence that the Appeal if successful will be rendered nugatory. He said that if successful the applicant would be entitled to damages and compensation. There are no special circumstances in this case which would justify the grant of a stay.

It is submitted that the application be dismissed with costs.

Consideration of the application

I shall now consider the issue before me, namely, whether execution of the said judgment pending appeal to Court of Appeal ought to be stayed or not.

It is entirely a discretionary matter for the court whether to grant a stay or not. There are, however, two important matters which a Court would consider.

Firstly, 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 ‘stay’ in Halsbury’s Laws of England Vol. 17 4^th Ed. at page 455 it is stated:

“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.

(emphasis mine)

I do not find any special circumstances in this case. This was a proper case for the application of s169 of the Land Transfer Act.

Further on ‘staying proceedings’ it is stated in Wilson (supra) at p.454:

“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)

Again, on ‘stay of execution’ pending appeal in Linotype – Hell Finance Ltd v Baker [1992] 4 All ER 887 C.A. it was held:

“When 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”.

(emphasis mine)

Bulk of Mr. Chandra’s submission is more appropriate to the civil action (writ of summons) which has been pending since 1994 between the appellant (as the plaintiff) and the respondent and the Director of Lands as the defendants. In the said summons the appellant seeks an order for the Respondent to estop from evicting the appellant from the said land and an injunction to restrain the respondent from continuing to develop the said land and damaging the properties of the appellant.

One observation that I would make on the status of the writ action is that the appellant has been sleeping on it for about 9 years without any concrete progress except to say that only recently an order for summons for direction was made on 11 November 2002. At this rate it will be another 9 years before the action is heard. Surely, the respondent cannot be expected to wait indefinitely. The High Court Rules are there to be complied with or else suffer the consequences of non-compliance.

It is quite evident on the facts that if the appellant had any leg to stand on in his claim in that action he would have moved with diligence. He or his representative have only themselves to blame if they prefer to move at a snail's pace.

So much for that action. As far as this case for vacant possession is concerned the facts are very simple. The respondent is the last registered proprietor of the said land. The Director of Lands has transferred the land to him. There is no evidence that the appellant has a lease or has a tenancy at will of land adjacent to the respondent’s leased property. There is no basis on which the appellant is entitled to occupy the land.

The appellant has not established that he has a greater interest in the land than the respondent. He says that he will suffer greatly if he had to demolish his house. The respondent is prepared to relocate the portion of the house which is protruding on to the respondent’s land at his own expense but the appellant is not prepared to accept this offer. There is no evidence of how much this part of the building is worth but in any case this is not material in considering this application.

This is merely an appeal against the judgment for possession. I see no prospect of success on the evidence. Also I am not satisfied that the appellant will be ‘ruined’ if stay is refused.

To conclude, on the facts and circumstances of this case the appellant’s application for a stay of execution is refused with costs in the sum of $300.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
31 October 2003