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Bhan v Motilal [2016] FJHC 695; HBC217.2014 (2 August 2016)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 217 of 2014

BETWEEN

Chandar Bhan of Pacific Harbour, Navua in Fiji,

Retired Businessman.

PLAINTIFF

AND

MOTILAL of Nakaulevu, Navua, Shopkeeper.

DEFENDANT

COUNSEL : Ms. R. Naidu for the Plaintiff.

Mr. S. Singh for the Defendant.

Date of Hearing : 21^stJuly, 2016.

Date of Ruling : 02^nd August, 2016.

RULING

(On the summons for stay of execution and leave to appeal and stay pending appeal.)

[1] This action was filed by the plaintiff on 05^th august, 2014 seeking the following reliefs;

1. For an order that the defendant do give the plaintiff immediate vacant possession of Lot 1 on DP No. 3575 and contained in Certificate of Title No. 4053.
2. For an order that the defendant pay mesne profits and occupational charges.

100. Damages for breach of terms and conditions of the Lease No. 115612.

4. Damages for illegal occupation of the premises in question.
5. Costs of the action.

[2] On 18^th April, 2016 the parties arrived at a settlement and the following are the terms of the settlement;

1. The defendant to purchase the freehold property comprised in Certificate of title No. 42396 for the price of $250,000.00 plus VAT with settlement on the purchase to be affected within 45 days of the date hereof.
2. The Defendant to pay the sum of $12,000.00 to the plaintiff on account of arrears of rent and mesne profits within 45 days of the date hereof.
3. If the defendant is unable to complete the settlement referred to in paragraph 1 above and payment referred to in paragraph 2 above then the defendant will immediately give vacant possession in respect of Lease No. 115612 which in respect of Certificate of Title No. 42396 and the plaintiff has leave to file writ of possession.
4. Each party to pay their own legal costs of this action.

[3] Since the defendant did not comply with the terms of settlement within 45 days as agreed the plaintiff filed writ of possession. The defendant through the holder of his power of attorney, on 21^st June, 2016 filed notice of change of solicitors and inter-parte summons seeking to stay the execution of the consent order dated 18^th April, 2016 for 60 days. The court by its ruling dated 06^th July, 2016 struck out the summons and refused the application for stay. The defendant through his attorney on 6^th July, 2016 filed another summons seeking to stay the execution of the consent order dated 18^th April, 2016 pending the hearing and determination of the Civil Action No. 158 of 2016. The court on 15^th July, 2016 fixed the summonses for leave to appeal and stay of execution fixed for 21^st July, 2016 and the learned counsel for the defendant sought a temporary stay of execution until these matters are heard and concluded which was refused by this court. The attorney of the defendant filed an affidavit in the course of the hearing on 21^st July, 2016 wherein he has averred that the Court of Appeal has granted a stay until this matter is heard and concluded.

[4] The plaintiff filed this action in the year 2014 for the ejectment of the defendant on the following grounds;

(i) The defendant has not been paying rental from 2011.
(ii) The defendant has not complied with the consent order made on 30^th august, 2006 in the High Court Civil Action No. 482 of 2005.

[5] According to the statement of claim of the plaintiff in terms of the consent order made in the earlier action the plaintiff has agreed to extend the lease for a period of 30 years and the defendant has agreed to pay $2000 per annum from 01^st January, 2000 to 2010 and the rent was to be reviewed in the years 2010, 2015 and 2025. In the statement of defence the defendant states that he negotiated with the plaintiff to purchase the property and any outstanding rentals was agreed to be included in the purchase price, which means he indirectly admits that the rent was not paid to the plaintiff.

[6] It appears from the documents available on record that the defendant had been in the habit of entering into settlement with the plaintiff and not complying with the terms of settlement.

[7] At the hearing the counsel made submission in respect of the following applications before court. They are;

(a) Application for the stay of execution of the consent order pending the hearing and determination of the High Court Civil Action No. 158 of 2016.
(b) Leave to appeal from the ruling dated 06^th July, 2016.
(c) Stay pending appeal.

[8] I will first deal with the objection raised by the learned counsel for the plaintiff that since there is no appeal preferred the application for stay pending appeal does not arise. The question arises here is whether the orders sought to be challenged by the defendant by way of an appeal are final or interlocutory. The substantive matter was finally disposed upon the entering of the terms of settlement. All the subsequent applications made thereafter, such as applications of stay of execution, are interlocutory in nature.

[9] In the case of Gounder v Minister of Health [2008] FJCA 40; ABU0075.2006S (9 July 2008) it was held:

Every other application to the High Court should be considered interlocutory and a litigant dissatisfied with the ruling or order or declaration of the Court needs leave to appeal to that ruling order or declaration. The following are examples of interlocutory applications:

1. an application to stay proceedings;
2. an application to strike out a pleading;
3. an application for an extension of time in which to commence proceedings;
4. an application for leave to appeal;
5. the refusal of an application to set aside a default judgment;
6. an application for leave to apply for judicial review.

In view of the principles enunciated in the decision cited above I hold that the order sought to be challenged by the defendant is an interlocutory order and the objection of the learned counsel for the plaintiff is without merit and accordingly overruled.

[10] The affidavit in support of the summons for stay of execution pending the determination of the Civil Action No. 158 of 2016 has been filed by the attorney of the defendant who states that at the time he agreed to purchase the property within 45 days he was not aware of the Bank’s processing time of his loan application. He states further that he runs a shop on the property and has no other place to go if he is evicted.

[11] This court, except for the statement made by the counsel for the defendant from the bar table that the said action has been instituted challenging the settlement between the parties, there is no materials tendered to the court indicating the nature of the cause of action and on what basis the defendant is seeking to challenge the validity of the settlement.

[12] From the affidavits tendered along with various summonses filed on behalf of the defendant it appears the only ground on which he seeks to have the settlement vacated is that the bank took more time to process the loan and that he was not aware of it.

[13] In the affidavit filed by the same person who claims to be the holder of a power of attorney of the defendant on 26^th June, 2016 it is stated thus;

6. My loan has been approved in principle by the Fiji Development Bank and I am now in a position to settle with the plaintiff for a transfer of the subject property.

8. I am now ready, willing and able to effect a settlement.

[14] The identical averments are found in the affidavits filed by the same person on 06^th July, 2016 and 07^th July, 2016. On the day of the hearing the counsel for the defendant sought permission to tender another affidavit with some documents which was allowed by the court with the consent of the counsel for the plaintiff.

[15] Along with the said affidavit Rajesh Narayan filed a copy of an e-mail dated 21^st July, 2016, sent by one Rajnesh Remal, who from the senders e-mail address given in the e-mail appears to be an officer of the Fiji Development Bank, addressed to Mr. Shelvin Singh, the solicitor for the defendant stating as follows;

Whilst the loan has been approved, we would like to clarify the Court Order will affect the Bank’s position. We do not want to be in contempt of the orders as Mr. Moti Lal is specifically named as the purchaser.

In our view, even if Rajnesh is POA holder for Mr. Lal, our documents would still be in Mr. Lal’s name with POA Provisions.

If you can confirm there is no contravention of the order, it will be appreciated. Your client’s former solicitor was to have obtained specific consent from Mr. Lal to have the purchase under his name.

[16] From this e-mail and from the affidavit deposed to by Rajnesh Narayan is appears that facts deposed to by him in the affidavits show his position and his difficulties and not of the defendant. It is Rajnesh Narayan who is planning to buy this property in the guise of purchasing it on behalf of the defendant and not the defendant.

[17] Along with the same affidavit Rajnesh Narayan filed an affidavit of one Edward John Fisk and a loan agreement entered into between him and Rajnesh Narayan as the holder of power of attorney of the defendant for $285,000. Both these documents have been executed on 20^th July, 2015, the day before the day of the hearing. It is the position of Rajnesh Singh that by 26^th June, 2016 and he was in a position to buy the property. His own evidence referred to above proves that this position is incorrect. If it is correct there was no reason for him to enter into a loan agreement with Edward John Fisk on the day before the hearing.

[18] A party to an action can always be represented by an attorney. However, when the attorney swears an affidavit he must deposed to the facts relating to the matters in dispute between the parties to the action and not on his personal matters.

[19] It is also important to note, as pointed out by the learned counsel for the plaintiff, that in the loan agreement signed between Rajnesh Narayan and Edward John Fisk, Rajesh Narayan has agreed to mortgage the property in question as security for the loan to which he or the defendant has no title to transfer or mortgage.

[20] It is therefore clear that even at the time these applications were taken up for hearing the defendant had not found money to execute a transfer of the property.

[21] The defendant is seeking a stay of execution of the settlement under and in terms of Order 45 rule 10 of the High Court Rules 1988.

Order 45 rule 10:

Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.

[22] The above provisions confer upon the court a discretion to stay the execution of judgment or order on the grounds of matters which occurred after the date of such judgment or order. I have in my previous ruling and also in this ruling, said that there is no judgment or order in this matter. All what is there before the court is the terms of settlement entered by the parties. The court always gives such settlements the effect of a judgment or order of the court but still such terms remain as a voluntary settlement between the parties.

[23] Settlement is a speedy and cost effective mode resolving disputes which is encouraged in almost every jurisdiction. If parties are simply allowed without any valid reason to resile from the settlements of this nature, the entire purpose of settling a dispute would be negated and it would have been more convenient for the plaintiff to go through the full trial and obtain a judgment from the court. This court is therefore, of the view that Order 45 rule 10 has no application to settlements between the parties.

[24] As I have stated in my earlier orders in respect of the same matter the terms of settlement entered between the parties are not a judgment pronounced by a court of law. A judgment is pronounced by a court of law after adjudicating the matters upon which the parties are at variance. In the instant case there is no adjudication by the court. What the court has before it is not a decision of the court but an agreement between the parties.

[25] It must also be pointed out that once the terms of settlement are entered of consent of the parties, the court cannot interfere with them unless parties or anyone of them sought assistance of the court in giving effect to it or if it is alleged by any one of the parties that the consent for the settlement was obtained to it by misrepresentation or a fraud has been perpetrated on that party in obtaining his consent or any such other ground which is acceptable to law.

[26] Even if it is assumed that Order 45 rule 10 can be applied to settlements, the question then arises as to what are changes which have occurred after the settlement. After entering the terms of settlement nothing has changed. The defendant should have known that he had to obtain financial facility to purchase this property. When the defendant agreed to purchase the property within 45 days he knew very well that he had to obtain a loan and if he was not certain that he could obtain the loan in less than 45 days he should not have agreed to purchase the property within that time. After agreeing to complete the transaction within a particular period the defendant cannot now be heard to say that he could not obtain the loan. For these reasons it cannot be said that any changes as contemplated in Order 45 rule 10 have occurred since the entering of the terms of settlement, warranting the stay of execution.

[27] Since there are no materials before the court to ascertain the basis on which the defendant is seeking to have the settlement set aside the court is not in a position to ascertain the plaintiff’s possibility of success in that case. He must at least tell this court on what grounds he is seeking to set aside the settlement. Without such information this court cannot grant a stay of the execution of the settlement until the final determination of that case.

[28] The learned counsel for the defendant relied on the decision in the case of Native Land TrustsBoard v Lal [2012] FJSC 1; CBV0009.11 (20 January 2012) where it was held:

The court considering 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 18^thMarch 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 Philip 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.

[29] In this case the defendant has not appealed against the judgment of this court and there is no judgment in this case. The defendant failed to honour his part of the agreement and now through the holder of his power of attorney making every possible application under various provisions of the High Court Rules 1988 to prevent the plaintiff from exercising his rights under the settlement. It is absolutely clear from the facts stated above that the defendant, from the time the settlement was entered into, has been making various attempts to make the court compel the plaintiff to transfer the property in his name which the court has no power to do. If the plaintiff was at fault or if he had acted in violation of the terms of settlement, the situation would have been different. In this case it is the defendant who has acted in violation of the terms of the settlement but it is the plaintiff who suffers without any income from the land.

[30] In refusing the application for stay of the execution for 60 days from the date of the application, the court considered all these matters. It is against the said ruling that the defendant is seeking leave to appeal. I am not inclined to the argument of the learned counsel for the defendant that he can rely on any of the grounds set out in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji)Ltd (supra). In my view, if leave is not granted the defendant’s right of appeal will not be rendered nugatory for the reasons stated above.

[31] Since the defendant has no right or title over the land and the time agreed upon by the parties has lapsed the overall balance of convenience lies with the plaintiff and not with the defendant. If the stay of the execution of the settlement is granted, the plaintiff will be deprived of his property and from the facts averred by the attorney of the defendant it does not show that the defendant has a case which he can successfully maintain. For these reasons the court is of the view that the stay of execution of the settlement should not be granted.

[32] On the question of extension of time the learned counsel relied on Order 3 rule 4 of the High Court Rules which provides as follows;

(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.
(2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
(3) The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.

[33] These rules have no application to the case before this court for reason that Order 3 rule 4 confers discretion on the court to extend the time period prescribed by the Rules to do some act required or authorised by the Rules to do. The period of 45 days within which the defendant agreed to purchase the property is not an act required to do by these rules.

[34] The defendant also relied on the inherent powers of the court. Inherent powers are exercised by the court in the interest of justice when the law does not provide for a remedy. No court would exercise its inherent powers to negate a settlement entered into between the parties and in favour of a person who is making every attemp to abuse the process of the court to the detriment of the other party to the settlement.

[35] I therefore, see no valid ground for the court to grant leave to appeal against the order dated 06^th July, 2016 and therefore the application for leave to appeal is refused. Since the court decides not to grant leave to appeal the question of stay pending appeal does not arise for consideration.

[36] For reasons aforementioned I make the following orders.

ORDERS.

1. The Application for leave to appeal from the order dated 06^th July, 2016 is refused.
2. The application for the stay of execution of the settlement dated 18^th April, 2016 until the hearing and determination of the Suva High Court Civil Action No.158 of 2016 s refused.
3. Application for stay pending appeal is refused.
4. The defendant shall pay the plaintiff $3000.00 (summarily assessed) as costs of these applications
   

Lyone Seneviratne,

JUDGE.

02^nd August, 2016.