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Silimaibau v Minister for Sugar Industry [2004] FJHC 530; HBC155.2001L (5 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC155 OF 2001L

SILIMAIBAU & ANOR

V

MINISTER FOR SUGAR INDUSTRY & 2 Others

Gates J.

Mr S. Krishna for 3rd Defendant Applicant [Sugar Cane Growers Council]
Mr J.J. Udit for the 1st and 2nd Defendants [Minister for Sugar Industry & A-G]
Mr G.P. Lala for the 1st and 2nd Plaintiffs [Silimaibau and NFU]

5 March 2004

RULING

Application for stay pending appeal; inherent jurisdiction of High Court; Section 20(1)(k) and section 20(1)(e) Court of Appeal (Amendment) Act 13 of 1998; "to prevent prejudice to the claims of any party pending an appeal"; does jurisdiction to order stay extend to a party not a party to appeal; or to ancillary or incidental matters dependent on appeal; tardiness of application, effect of.

[1] This application is concerned with whether a party who is not a party to an appeal to the Court of Appeal can yet be granted relief by way of stay from the consequences of the High Court orders.

[2] The original orders, declaratory orders, held that the appointment of the Minister for Sugar Industry was null and void since it had been made contrary to the provisions of the 1997 Constitution. The Sugar Industry (Amendment) Decree 1992 was also held to be invalid and of no legal effect. Lastly, the exercise of powers by the purported Minister for Sugar in nominating 8 members to the Sugar Cane Growers Council was held to be null and void and of no legal effect.

[3] The orders sealed on 25 August 2003, were made in a judgment of the Lautoka High Court delivered on 19 July 2003. The 1st and 2nd defendants [Minister for Sugar Industry and Attorney-General] filed an appeal with the Court of Appeal on 2 September 2003. The present applicant, the Sugar Cane Growers Council, the 3rd defendant in this court, is not an appellant in the appeal process.

[4] On 3 March 2004 the applicant filed with this court a summons for interim stay of execution pending determination of the appeal. Mr Krishna for the Council submits the court has jurisdiction to grant such a stay by virtue of inherent jurisdiction and having regard to section 20(1)(k) of the Court of Appeal (Amendment) Act 13 of 1998.

[5] The applicant has filed one affidavit in support of the stay, that of Jagannath Sami, the Chief Executive Officer of the Council, sworn on 2 March 2004. Mr Sami states that the term of the present members of the Council expires on 5 May 2004. Fresh elections are scheduled tentatively for 24 April 2004.

[6] There is a set schedule of events that needs to be followed for those elections, notice of election to be gazetted, registration, objections, amendments, nominations, etc. A difficulty will arise for those elections if the High Court is reversed by the Court of Appeal. As the High Court’s order now stands an election will have to be held under the Sugar Industry Act Cap. 206 for a council of 114 members. But if the Decree is upheld the Council will need an election for 38 members only. For the elections to be held twice would prove a costly waste of Council funds. The application therefore has obvious merit.

[7] Mr Krishna asks for an order in these terms:

"1. That the Triennia Council Elections to be held by the Sugar Cane Growers Council under the Sugar Industry Act be stayed pending the determination of this Appeal."

I believe the correct order is for my orders to be stayed not for the elections to be stayed, though the effect will be the same.

[8] He submits that the court has sufficient jurisdiction under section 20(1)(k) of the Court of Appeal Act 13 of 1998 which reads:

"(k) generally, to hear any application, make any order or give any direction that is incidental to an appeal or intended appeal."

Mr Krishna argues that his application is "incidental to an appeal or intended appeal".

[9] At this stage it appears, surprisingly, that no approach has been made to one of the parties to the appeal for consent to this application. The parties to the appeal oppose the application, at least at this stage.

[10] The application comes very late in the day, nearly 8 months after the High Court judgment. The delay has not been satisfactorily explained.

[11] Since the application has been made so late in the day and the appeal is already listed for hearing before the Court of Appeal on 17 March 2004, both Mr Udit and Mr Lala urge me to put off the matter to the Court of Appeal.

[12] There has been short service and the other litigants have not had sufficient time to file affidavits in opposition or to prepare proper arguments. Quite inappropriately the applicant had at first attempted to bring an ex parte application for stay with the Court of Appeal, by-passing the High Court. This was not a suitable application for ex parte relief, specially since the applicant was not a party to the appeal. The appellants and the respondents would need to be heard about any stay matter.

[13] Whilst the tardiness of application might not defeat an application in a suitably pressing and compelling case, it does not make for a hearing that can produce a full, fair, and swift result.

[14] The phrase "to prevent prejudice to the claims of any party pending an appeal" in section 20(1)(e) though no doubt contemplating the claims of those parties enjoined in an appeal, does not specifically exclude prejudice that might arise to litigants who are not parties to the appeal. I am therefore prepared to give the phrase an extended meaning to allow a party, not involved in the appeal, to make an application to protect its lower court claims.

[15] In section 20(1)(k) the phrase "that is incidental to an appeal or intended appeal" should be interpreted narrowly so that the court could only deal with matters ancillary to an appeal which was afoot. The applicant does not come into this category, nor does the section deal with stay which is separately provided for by section 20(1)(e). Section 20(1) (k) does not apply in this application.

Conclusion

[16] I have found that a jurisdiction does arise for me to hear the applicant’s application under section 20(1)(e) to prevent prejudice to the applicant’s claims in the High Court. What of the merits? The application is made 8 months after my decision. The applicant should have brought this application immediately after the appellants filed their appeal, so that the application might be heard in full and with due process.

[17] In addition I note that the Council failed to call fresh elections following the declaratory orders. It did not obey the orders and now it seeks a stay so as not to hold the elections which are shortly due.

[18] After weighing the loss of the fruits of success for the plaintiffs in the remaining days till the Court of Appeal decides this appeal after 17 March 2004 hearing, with the prejudice to the applicant in not granting the order sought to stay the orders granted in the judgment, I refuse the application.

[19] If the appellants succeed, then the elections can proceed thereafter on the basis of the Decree unless the Court of Appeal orders a stay. If the Court of Appeal supports the High Court orders, it will again be for that Court to rule whether there is merit in ordering a stay till further order of the Supreme Court.

[20] My order would only have stayed the period up to the result of the Court of Appeal’s decision. Owing to the lateness of this application and the fact that there has been no obedience by the Council to the orders hitherto, in spite of its stated neutral stance in the appeal, I am disinclined to grant a stay at this stage.

Application refused.

A.H.C.T. GATES
JUDGE

Solicitors for 3rd Defendant Applicant: Messrs Krishna & Co., Lautoka
Solicitors for the 1st and 2nd Defendants: Office of the Attorney-General
Solicitors for the 1st and 2nd Plaintiffs: Messrs G.P. Lala & Associates