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Chand v Shahim [2005] FJHC 685; HBC0300.2001L (3 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0300 OF 2001L

BETWEEN:

RAKESH CHAND
f/n Jagjiwandas
Plaintiff

AND:

MOHAMMED SHAHIM
f/n Imam Mohammed
Defendant

Mr. R. Chaudhary for the plaintiff
Mr. S. Maharaj for the defendant

Date of Hearing: 3 November 2005
Date of Ruling: 3 November 2005

EXTEMPORE RULING

This matter comes before the Court by way of a Summons filed on behalf of the defendant seeking a stay of execution of the judgment of this Court of the 26^th August 2005. The stay is sought pending an appeal by the applicant/defendant to the Fiji Court of Appeal. That appeal having been filed at the Fiji Court of Appeal on the 7^th September 2005.

In support of the Summons the applicant relies upon an affidavit of Thomas Naua filed on the 13^th October 2005.

The application is opposed and the respondent relies upon an affidavit of Rakesh Chand filed on the 19^th October 2005.

By virtue of judgment, the sum of $72,484.00 together with costs assessed in the sum of $2,000.00 is payable to the plaintiff.

The relevant provisions with respect to an application such as this have been considered at length and the authorities set forth in some detail in the decision of Mr. Justice Gates in Elsworthy v Yanuca Island. It is trite to say that the successful plaintiff is entitled to the fruits of this judgment.

In support of the Summons, the defendant has referred the Court to the decision of Mr. Justice Singh on the 27^th October 2004 in Matter No. 337 of 1993 – Navo Development Limited v Toyota Tsusuo Limited in which His Lordship granted a stay and declined an order that the funds to be paid in Court.

The Court is also referred by the applicant/defendant the decision of Mr. Justice Pathik in Carpenters Fiji Limited v Virendra Karan – Civil Action No. 247 of 1995 where His Lordship said that denying the plaintiff the fruits of its judgment could be cured by an award of interest at a later day and His Lordship there said there was no doubt the defendant would be able to meet an award of damages if unsuccessful on appeal.

Regrettably, in this country and elsewhere where insurers who have appeared to be in an extremely healthy state one day have been exposed to be in extremely unhealthy state the next day. There can be no assurance the defendant will in fact be able to pay should the plaintiff be successful on appeal.

As I indicated earlier, the starting point is the plaintiff is entitled to the fruits of his judgment. It is I think untenable that a situation be allowed to exist which will create even a slight possibility that the plaintiff would not be able to receive the fruits of his judgment at an appropriate point in time. There are two ways to my mind of ensuring that is so. The first is, the judgment debt is paid to the plaintiff and the defendant’s application is refused. The second is that the payment be made into Court. There are no other means in my mind of ensuring the plaintiff the fruits of his judgment.

The plaintiff in his submissions says that he is not opposed to a conditional stay, that is a stay requiring payment into Court. In the circumstances and for the reasons that I have given, I am of the opinion therefore that a stay should be granted and that stay should be conditioned upon the total amount of judgment debt and costs being paid into Court within 28 days.

JOHN CONNORS
JUDGE

At Lautoka
3 November 2005