In the High Court of Fiji at Labasa
Civil Jurisdiction
Civil Action No. 36 of 2007

Between:

Viliame Sogari
Plaintiff

And:

Shiu Rajamma
1st Defendant

And:

Native Land Trust Board
2nd Defendant

And:

Registrar of Title
3rd Defendant

And:

Attorney General of Fiji
4th Defendant

Appearances: Mr N.Vere for the plaintiff
 Mr C. Tuberi for the second defendant
Date of hearing: 17th February, 2014

JUDGMENT

1.	This application for stay of execution of judgment arose out of proceedings filed by the plaintiff in the High Court at Labasa. The plaintiff claimed that the NLTB, the second defendant had breached its statutory and trusteeship duties by issuing to the first defendant, a lease of a land which the Board had already leased to the plaintiff. The plaintiff claimed that he suffered "damages and loss of past and future proceeds of his sugar cane proceeds for 30 to 50 years". 

2.	The defendant filed statement of claim denying liability. At the pre-trial conference, the second defendant admitted liability in issuing two leases over the same land. The second defendant agreed to pay the plaintiff, damages that he may have incurred by reasons of the double leasing.The matter proceeded to hearing on the assessment of damages.

3.	On 19th June, 2012, the High Court awarded the plaintiff damages, as follows:-

General damages – Loss of past and future income - $456,527.36.
Loss of house - $30,000.00.
Special damages - $2,300.00.
Aggravated damages - $4,000.00.
Exemplary damages - $10,000.00; and
Interest on special and general damages at 4% per annum from the date of filing of the action until the date of payment.

Finally, it was ordered that costs be taxed on indemnity basis in view of "the nature of the action and in particular the conduct of the 2nd defendant".

4.	In an affidavit in support of the summons for, stay,Joreti Dakuwaqa, Manager, North of the NLTB states that:

1)	At the hearing, the Board had called Mr S.K. Toronibau, a registered valuer to testify.In his valuation report, Mr Toronibau had assessed the valuation of standing crops which the plaintiff could have harvested within the term of the lease and the market value of the dwelling to be in a sum of $30,000 for loss of past and future earnings. This differs quite substantially from the assessment report of the official from the Ministry of Agriculture,(who was called by the plaintiff).

2)	The Learned High Court Judge had not fully explained or taken into consideration the valuation report of Mr Toronibau.

3)	The second defendant has demonstrated that its grounds of appeal have merits and reasonable prospects of success.

5.	The plaintiff filed affidavit in opposition followed by a supplementary affidavit stating the second defendant's witness.Mr Toronibau did not possess the expertise that the plaintiff's witness,Mr Kanito Matagasau had "to predict or estimate future value of crops". Mr Kanito Matagasau had produced a valuation report on behalf of the plaintiff. The plaintiff refers to a paragraph in the report of Mr Toronibau which states that his report was relevant "to the circumstances prevailing at the time".He also states that it was likely that Mr Toronibau would favour the second defendant, as he was a former employee of the iTLTB.

6.	On 17th August, 2012, an interim stay was granted by Wati J.

7.	The proposed grounds of appeal of the second defendant reads as follows:

1)	That the Learned Judge erred in law in not properly taking into account the evidence adduced in Court by the parties and appropriately applying the relevant principles of evidence as to the weight of each party's evidence.

2)	The Learned Judge erred in law in not giving any weight to the Appellants evidence in the lower Court when such evidence was tendered through an expert.

3)	The Learned Judge erred in law in not applying the relevant principles of the assessment of Special Damages, as all sums claimed pursuant to this head, is to be strictly proven by the claimant which in this case was not at all proved and with no evidence adduced.

4)	The Learned Judge erred in law and in fact when it contradicted its Judgment at paragraph 13 and 15 when claim for Special Damages were not proved, however award was granted in the sum of $2,300.00.....

5)	The Learned Judge erred in law and in fact at paragraph 18 of the said Judgment by confusing what the 1stRespondent (Original Plaintiff) had to prove to that of the Appellant (Original 2nd Defendant) from the lower Court.

6)	The Learned Judge erred in law in awarding special damages in the sum of $2,300.00..and of which contradicted reasoning at paragraph 20 of the Judgment.

7)	The Learned Judge erred in fact at paragraph 21 in stating that the 1st Respondent (Original Plaintiff) called two (2) witnesses at the lower Court, when in fact three (3) witnesses were called by the 1st Respondent (Original Plaintiff) in the lower Court.

8)	The Learned Judge erred in law in awarding the total quantum of $456,527.36 ...which were too exorbitant.

9)	The Learned Judge erred in law and in fact in failing to consider the evidence by the Appellant's witness in the lower Court who is a qualified valuer and an expert witness.

10)	The Learned Judge erred in law and in fact in awarding such an excessive sum in the lower Court when evidence adduced by the 1st Respondent (Original Plaintiff) in the lower Court were challenged by the Appellant (Original 2nd Defendant) in the lower Court.

11)	That the Learned Judge erred in fact and in law in not accepting evidence of the Appellant's (Original 2nd Defendant) witness in the lower Court as to the value of the subject lease-hold land together with the improvement as per the valuation report tendered by the Appellant (Original 2nd Defendant) in the lower Court.

12)	That the Learned Judge erred in fact and in law in arriving at the conclusion that the 1st Respondent's (Original Plaintiff) value of lost income for a period of over 30 years would amount to $456,527.36...

13)	The Learned Judge erred in law and in fact in not considering the Appellant's (Original 2nd Defendant) evidence in the lower Court as per valuation report of subject property and land in the sum of $30,000.00...

14)	The Learned Judge erred in law and in fact when it failed to consider that the only loss that the 1st Respondent (Original Plaintiff) would have incurred would be within the three (3) year period of which the latter did not have access to farm the subject land.

15)	The Learned Judge erred in law and in fact when it contradicted its reasoning at paragraph 28 of the Judgment in that the calculations as relied upon by the 1st Respondent (Original Plaintiff) in the lower Court were on a presumption that proper management is adhered to, which was a hypothetical situation in that regard.

16)	The Learned Judge erred in fact when it failed to consider the reasoning at paragraph 29 which was a hypothetical situation, where it stated, '...production for the next 30 years could have remarkably increased if the land continued to be fertilised as advised by the Fiji Sugar Corporation Ltd field officers.

17)	The Learned Judge erred in law and in fact at paragraph 33 of the Judgment in dismissing the Appellant's (Original 2nd Defendant) evidence as not credible and in not taking into consideration the Appellant's evidence adduced in Court.

18)	The Learned Judge erred in law and in fact at paragraph 34 of the Judgment, when an expert was indeed called by the Appellant as its witness to counter the calculation method compiled by the Ministry of Agriculture.

19)	The Learned Judge erred in law and in fact at paragraphs 36, 37 and 38 of the Judgment when it failed to consider that the 1st Respondent (Original Plaintiff) is a police officer by profession and that this factor would affect the calculation of potential future economic loss.

20)	The Learned Judge erred in law and in fact in not taking into account that the 1st Respondent (Original Plaintiff) had no farming experience nor did the latter have any practical experience in farming.

21)	The Learned Judge erred in law and in fact in assessing aggravated damages in the sum of $4,000.00 which is excessive, as at paragraph 43 of the said Judgment.

22)	The Learned Judge erred in law and in fact in awarding exemplary damages in the sum of $10,000 which is excessive as at paragraph 48 of the said Judgment.

23)	The Learned Judge erred in law and in fact in incorrectly interpreting the Appellant's (Original 2nd Defendant) valuation report at paragraph 49 of the Judgment, to solely refer to the improvement when in fact the whole report is a compilation of both the value of the improvement and estimation of the income collected during the period of the lease.

24)	The Learned Judge erred in law and in fact when it solely relied on the 2nd Respondent's (Original Plaintiff) oral evidence and there being no mention of the Appellant's (Original 2nd Defendant) oral evidence in the Judgment.

25)	The Learned Judge erred in law and in failing to consider the qualification of the 1st Respondent (Original Plaintiff) in the lower Court and that the latter not being a registered sugarcane grower.

26)	The Learned Judge erred in law and in fact in failing to consider that the 1st Respondent's (Original Plaintiff) occupation in the lower Court was that of a police officer and not solely as an everyday farmer.

27)	The Learned Judge erred in law and in fact when it failed to take into account the factors on natural disasters occurring within the period of the lease and that this would have impeded the revenue collection for any cane farmer.

28)	The Learned Judge erred in law and in fact in failing to take into account all relevant matters to the case and all evidence adduced during the hearing of the assessment of damages.

8.	The second defendant's appeal, as elaborated in grounds of appeal 1,2, 5,7,8,9,10,11,12,13,14,17,18,23,24 and 25 is centrally concerned with the failure of the Learned High Court Judge to consider the valuation report produced by the second defendant's witness and placing reliance entirely on the valuation report produced by the plaintiff's witness.

9.	The Learned High Court Judge, in his judgment, has quite correctly stated that the second defendant had tendered a valuation report. But having said that, it was unfortunate that he did not consider the contents of that report. At paragraph 33 and 34 of the judgment, he states:

The only available and reliable evidence before this court which could be taken into account in assessing the future economic loss is the document marked as PE 3 tendered by the plaintiff's witness. The defendants failed to lead any evidence to counter PE 3. In the absence of any other evidence, court has no other option but to rely on PE3 in assessing the future economic loss.
 
The 2nd defendant failed to challenge the above method of calculation and also failed to present any expert opinion which could help to assess the loss of future income.

10.	Grounds 3,4,5,6,21 and 22 take issue with the award of special, aggravated and exemplary damages. The second defendant contends that the award of exemplary damages was excessive. I note that the Learned High Court Judge has elucidated the principle that exemplary damages is awarded where a defendant's conduct is particularly wilful, wanton, malicious or vindictive. He then, awarded exemplary damages to the plaintiff, on the basis that the second defendant waited almost 3 years to admit its liability. 

11.	 The remaining grounds of appeal contend that the Learned High Court Judge did not make allowances for contingencies that arise in the ordinary course of things. Grounds 15 and 16 state that the valuation report relied on by the Learned High Court Judge was based on a presumption that proper management would be adhered to. Grounds of appeal nos 19, 20, 26,27 and 28 urge that the Learned High Court Judge had also failed to consider three matters that have a bearing on the calculation of future economic loss, namely (a) the plaintiff was a retired police offer with no farming experience, and (b) contingencies arising from natural disasters.

12.	 I find that the judgment does raise arguable points. Rule 22 (3) of the Court of Appeal Rules,( cap. 12):-

The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other orders as the case may require.

13.	The law on stay pending appeal was stated by His Lordship Gates CJ in Native Land Trust Board v Shanti Lal,[CBV0009.11, January,2012] as follows:

 The court considering a stay should take into account the following questions. They were the principles set out by the Court of Appeal and approved subsequently and applied frequently in this court. They were summarised in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd,Civil Appeal ABU0011.04S 18th March 2005. They are:

(a)	Whether, if no stay is granted, the applicant's right of appeal will be rendered nugatory (this is not determinative). See Phillip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

(b)	 Whether the successful party will be injuriously affected by the stay.

(c)	The bona fides of the applicants as to the prosecution of the appeal.

(d)	The effect on third parties.

(e)	The novelty and importance of questions involved.

(f)	The public interest in the proceeding.

(g)	The overall balance of convenience and the status quo. (emphasis added)

14.	The first test reiterates the general principle that the court must consider if no stay is granted, namely, whether the applicant's appeal will be rendered nugatory, albeit this factor "is not determinative".

15.	In Wilson v. Church,[1879] 12 Ch.D 454 it was held that where an unsuccessful party is exercising an unrestricted right to appeal, it is the duty of the Court ordinarily, to stay the proceedings of the lower court, in order not to render the appeal, if successful, from being nugatory. 

16.	If a stay is not granted in this case, the second defendant would have to pay the damages awarded. In the event the appeal is successful, the plaintiff will have to repay the monies. The plaintiff, in the opening paragraph of his statement of claim states that he is a farmer. The defendant contends that he would not be able to repay the adjudged amount, if the appeal is successful. 

17.	In my judgment, the second defendant's appeal will be rendered nugatory, if a stay is not granted. On the other hand, the plaintiff, the successful party in the High Court would not be injuriously affected by the stay. If the appeal is unsuccessful, the plaintiff will receive the judgment sum together with interest and costs.

18.	 The second defendant has proffered the appeal. I am satisfied as to the bona fides of the appeal.

19.	In my view, the grounds of appeal raise important questions on the assessment of damages, in cases where lessors renege on promises made to prospective lessees. Such matters perennially come up before our Courts. It is a matter is of public interest and importance. In my view, the overall balance of convenience favours the grant of the stay and maintaining the interim stay order, until the determination of the appeal.

20.	The FCA in AG and Minister of Health v Loraine Die (Misc. No 13 of 2010 ) stated: 

The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal:.. That hurdle is higher than that of chances of success. (emphasis added) 

21.	In Linotype-Hell Finance Ltd v Baker,(1992) 4 All ER 887 Staughton LJ stated that where an unsuccessful defendant seeks a stay of execution, he must satisfy court that his appeal has some prospect of success.

22.	 In my judgment, the second defendant's appeal has strong prospects of success. I grant the stay.

23.	Orders

a)	The second defendant's application for stay of execution of the judgment of the High Court dated 19th June, 2012 is allowed.

b)	The costs of this application shall be costs in the cause.

30 July, 2014

A.L.B.Brito-Mutunayagam
Judge