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Land Transport Authority v Shahid Logging Supplies [2018] FJHC 1140; Civil Action 283 of 2018 (30 November 2018)

bIN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 283 of 2018

BETWEEN : THE LAND TRANSPORT AUTHORITY a statutory body

established under the Land Transport Act 1998, having its registered office at Lot 1 Daniva Road, Valelevu, Nasinu.

PLAINTIFF

AND : SHAHID LOGGING SUPPLIES of Laucala Beach Estate, Suva.

1^ST DEFENDANT

AND : THE SHERIFF OF FIJI of Nausori Magistrates Court.

2^ND DEFENDANT

AND : THE CHIEF REGISTRAR established under the Justice Decree

2009 having its office at Government Building, Old Wing, Victoria Parade, Suva.

3^RD DEFENDANT

AND : ATTORNEY-GENERAL OF FIJI of established under the

Constitution of Fiji having its office at Suvavou House, Victoria Parade, Suva.

4^TH DEFENDANT

Counsel : Ms Dauvere E. for the Plaintiff
: Mr Nand A. for 1^st Defendant
: Ms Narayan B. for 2^nd, 3rd and 4^th Defendant

Date of Hearing : 6^th and 29^th November, 2018
Date of Ruling : 30 November 2018

JUDGMENT

INTRODUCTION

1. The Plaintiff filed originating summons in terms of Order 47 rule 1(a) , Order 47 rule 3 and rule 5. The Plaintiff was ordered to pay an amount of money in the Magistrate’s Court after a trial. The judgment creditor obtained a writ for the recovery of money since the Defendant did not comply with the order for payment. In the execution of writ of fiery facias a property was seized. The Plaintiff appealed against the decision of the Magistrate, and property seized was not sold and money was not recovered at that time. The Plaintiff’s appeal was struck off in 2012. The property recovered was sold only in 2018, and it was found insufficient to fulfill the judgment sum. So another writ was issued for the remaining judgment sum which was yet to be recovered. The Plaintiff filed originating summons, in High Court for the revocation of the second writ issued by Magistrate’s Court for the recovery of the remaining amount.
   

LAW

2. The Plaintiff had filed this originating summons seeking revocation of writ of fieri facias dated 15.7.2018 issued by the Magistrate’s Court.
   
3. Primarily, Magistrates’ Court Act 1944 and Magistrates Court Rules 1945 applies to the matters in the Magistrate’s Court.
   
4. Order 36 of the Magistrates’ Court Rules deals with execution of writ of fiery facias, but it is silent on the issue of stay of execution.
   
5. Order 37 rule 6 of the Magistrates Court Rules deal with stay of execution pending appeal and that provision states that even during the pendency of the appeal execution can take place, unless an order contrary to that being made by the same court or by High Court.
   
6. There is no provision in the Magistrates Court Act or Magistrates Court Rules that deal with stay of writ of fiery facias when there is no appeal.
   
7. Order 47 of the High Court Rules of 1988 deals with stay of execution of writ of fiery facias and Order 47 of the High Court reads;

WRITS OF FIERI FACIAS

“Power to stay execution by writ of fieri facias (O.47,r.1)

1. (1) Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution-
   • (a) That there are special circumstances which render it inexpedient to enforce the judgment or order, or
   • (b) That the applicant is unable from any cause to pay the money, then, notwithstanding anything in rule 2, the Court may by order stay the execution of the judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court thinks fit.
2. An application under this rule, if not made at the time the judgment is given or order made, must be summons and may be so made notwithstanding that the party liable to execution did not acknowledge service of the writ of originating summons in the action or did not state in his acknowledgment of service that he intended to apply for a stay of execution under this rule pursuant to Order 13, rule 9.
3. An application made by summons must be supported by an affidavit made by or on behalf of the applicant stating the grounds of the application and the evidence necessary to substantiate them and, in particular, where such application is made on the grounds of the applicant’s inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.
4. The summons and a copy of the supporting affidavit must, not less than 4 clear days before the return day, be served on the party entitled to enforce the judgment or order.
5. An order staying execution under this rule may be varied or revoked by a subsequent order.

Separate writs to enforce payment of cost, etc. (O.47,r.2)

2. (1) Where only the payment of money, together with costs to be taxed, is adjudged or ordered, then, if when the money becomes payable under the judgment or order the costs have not been taxed, the party entitled to enforce that judgment or order may issue a writ of fieri facias to enforce payment of the sum (other than for costs) adjudged or ordered and, not less than 8 days after the issue of that writ, he may issue a second writ to enforce payment of the taxed costs.

(2) A party entitled to enforce a judgment or order for the delivery of possession of any property (other than money) may, if he so elects, issue a separate writ of fieri facias to enforce payment of any damages or costs awarded to him by that judgment or order.”

8. From the above High Court Rule, it is evident that a writ of fiery facias can be stayed for a period or absolutely.
   
9. Such an application must be made to the court by way of summons supported by an affidavit. There should be ‘special circumstances which render it inexpedient to enforce the judgment’ or the ‘applicant is unable from cause to apply the money’.
   
10. Such an application is not limited to a person who had acknowledged the writ or originating summons. There is no need to state that stay of execution will be sought at the time of acknowledgment. (See O.47 r.2).

ANALYSIS

11. The writ of fiery facias issued by the Magistrates Court on 15.7.2018 for the recovery of the remaining judgment sum.
    
12. The Plaintiff cannot invoke the jurisdiction of High Court to seek a stay of the said writ in terms of Order 47 of the High Court Rules of 1988.
    
13. High Court Rules can be applied in the Magistrates’ Court when there is a lacuna in the Magitrates Court Rules 1945 in terms of Order 3 rule 8 of the said rules.
    
14. This provision cannot be used to make a direct application to High Court, but utilization of the said High Court Order in the Magistrate Court, when it is slient.
    
15. The Plaintiff’s counsel said that she is filing this application in the High Court as the application for stay needs to be by way of Originating Summons and such an application cannot be filed in the Magistates Court.
    
16. This is not the correct position. Such an application for stay of the writ ‘must be made’ by summons.
    
17. So this application for Originating Summons is struck off since the writ of fieri facias was issued from the Magistrates court.

FINAL ORDERS

1. The Originating Summons struck off.
   
2. The cost is summarily assessed $1000 for the 1^st Defendant.
   

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Justice Deepthi Amaratunga

High Court, Suva