IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. 115 of 2012

BETWEEN

ABDUL LATIFF of Korovutu, Ba, Fiji.

PLAINTIFF

AND

MOHAMMED HAKIM of Korovutu, Ba, Fiji, in his personal capacity and as sole Executor and Trustee of the Estate of Kunjal Bi, late of Korovutu, Ba, Fiji.

DEFENDANT

Counsel	:	(Ms). Janet Nitika Raman for the plaintiff
		:	Mr. Benjamin Jaymesh Ram for the defendant

Hearing	:	Thursday, 20th February, 2020

Ruling		:	Friday, 28th February, 2020

R U L I N G

[A]	INTRODUCTION

(01)	On 25th October, 2019, this Court entered judgment in favor of the plaintiff and made the following orders;

(i)	The defendant is ordered to pay the plaintiff the estate monies in the sum of $6,556.79.  The estate monies should be paid within 14 days from the date of this judgment.

(ii)	The defendant is removed from his position as the executor and trustee of the estate of Kunjal Bi. The Grant No. 43163 appointing the defendant as the executor and trustee of Kunjal Bi’s estate is hereby cancelled.
(iii)	The plaintiff is appointed as the executor and trustee of the estate of Kunjal Bi.

(iv)	The defendant is ordered in his personal capacity to pay the plaintiff’s costs of this action summarily assessed in the sum of $2,500.00.  The cots should be paid within 14 days from the date of the Judgment.

(02)	On 19th November, 2019, the defendant appealed against the judgment to the Fiji Court of Appeal.

(03)	This is an application for a Stay execution of the judgment of this Court pending the determination of the appeal by the defendant to the Fiji Court of Appeal.

[B]	BACKGROUND

(01)	The plaintiff (Latiff) and the defendant (Hakim) are siblings.  They had nine (09) other siblings.  Their father, Kunjal Bi, dies testate on 15th September 2004.  The estate property comprises, Crown Lease No: - 14722 (Sugar Cane Farm No:- 1370) which would have been the only real property that the late Kunjal left behind.

(02)	Latiff, Hakim and the other brother Jamal are heirs or beneficiaries to the estate of Kujnal.  Pursuant to the Will, Latiff and Hakim are beneficiaries of approximately 1 ½ acres of estate farm.  Their other brother, Mohammed Jamal is the beneficiary of two acres of estate farm.  Mohammed Jamal is residing in United States since 2004.

(03)	Pursuant to Kunjal’s Will and Testament, probate was granted to Hakim. Hakim became the trustee of Kunjal’s estate on 04th March 2005.

(04)	On 23rd May 2012, Latiff filed a Writ of Summons and Statement of Claim alleging that;

9.	The Defendant has unlawfully and without any colour of right interfered and/or stopped the use, occupation and cultivation of the Plaintiff’s share of the cane farm.

10.	The Defendant has further interfered with the occupation and enjoyment of the Plaintiff’s house.

11.	Between the year 2006 and 2011, the Defendant has in breach of his duties as Executor and Trustee refused and/or neglected to pay the plaintiffs share of cane proceeds in the sum of $6,556.79.

12.	Despite several demands by the Plaintiff the Defendant has neglected or refused to pay the said amount or any other amount.

13.	The Defendant further on or about the 6th February 2010 caused damage to the dwelling house occupied by the Plaintiff.

14.	The Estate of Kunjal Bi owned a tractor registration no. E 3792 which the Plaintiff has been using for his own purpose and has been refusing to account for to the Plaintiff.

15.	The defendant has failed, neglected and/or refused to account to the plaintiff for the affairs of the Estate of Kunjal Bi or to pay or transfer to the plaintiff any of his entitlements.

(05)	Latiff sought Orders that;

a.	Judgment in the sum of $6,556.79.

b.	Judgment in the sum of $13,800.00.

c.	An order that the Defendant furnish and verify full accounts of the Estate of Kunjal Bi.

d.	The Defendant do provide full accounts of all income from Sugar Cane Farm No. 1370 Koronubu Sector, situated in Crown Lease Reference No. 14722, from 2006 to the date of judgment.

e.	The Defendant to furnish an update account of all Estate properties sold and money received by him and refund or compensates the Estate of Kunjal Bi for any such sum.

f.	The Defendant do transfer the Plaintiffs share of Crown Lease No. 14722 to the Plaintiff as provided in the last Will of Kunjal Bi and that the costs of any such transfer be paid from the Estate.

g.	The Defendant be restrained from threatening or interfering with the Plaintiff and/or his agents and/or servants or with the shares and entitlements of the plaintiff.

h.	The Defendant be removed as the Executor and Trustee of the Estate of Kunjal Bi and the Plaintiff be appointed the Executor and Trustee of the Estate of  Kunjal Bi.
i.	An injunction restraining the Defendant from uplifting any future cane proceeds in respect of farm No. 1370 Koronubu Sector or alternatively all the proceeds be held up by FSC until further orders of the court.

j.	Costs.

(06)	In his statement of defence, the defendant pleaded that; (reference is made to paragraph (6) and (7) of the statement of defence filed on 12.06.2012);

6.	That the defendant admits the content written therein and further says that the Plaintiff was given his share of the cane proceeds and which he has signed and says that it is the Plaintiff who are uncooperative and have not performed or cultivated and still not performing their duties as trustees who are inconsistent with the duties imposed under the Will and Testament of ESTATE of KUNJALIBI

7.	That the defendant denies the contents and further says that during the life of ESTATE OF KUNJALBI and after his death the defendant cultivated, managed and looked after the Estate farm and devoted all his time, energy, monies therein.

(07)	 Before the commencement of the trial, Counsel for the plaintiff and the defendant informed court that the issue in relation to the distribution of the share and subdivision of the land has been resolved amicably.

(08)	Therefore, the plaintiff claimed only prayer (a), (h) and (j) in the plaint.  They were;

(a)	Judgment in the sum of $6,556.79.

(h)	 The Defendant be removed as the Executor and Trustee of the Estate of Kunjal Bi and the Plaintiff be appointed the Executor and Trustee of the Estate of Kunjal Bi.

(i)	Costs.

(09)	Therefore, the issues to be tried were;
1.	Whether the Defendant has unlawfully interfered and/or stopped the use, occupation and cultivation of the Plaintiff’s share of the cane farm?
2.	Did the Defendant refuse and/or neglect to pay the Plaintiff his share of the cane proceeds (amounting to $6,556.79) from 2006 to 2011?
3.	Whether the actions of the Defendant between years 2006 to 2011 in breach of his duties as Executor and Trustee of the Estate of Kunjal Bi?

[C]	THE SUMMONS AND AFFIDAVITS

(01)	The summons for the Stay of execution was filed on 02nd December, 2019 and supported by an affidavit of the defendant sworn on 27th November, 2019.

(02)	The summons for the Stay of execution was vigorously opposed by the plaintiff.  It should be noted that the plaintiff did not file an answering affidavit, a course which he was entitled to take.

(03)	As the Stay of execution of the judgment was necessarily an urgent application, both parties presented oral submissions.

[D]	THE JURISDICTION

(1)	The right of appeal is not a substantive right but one that is conferred by statute rather than common law.

	See; * Attorney – General v Sillem

	*Victoria Stevedoung and General Contracting Co. Pty Ltd v Digham 

(2)	There is provision in the High Court Rules, 1988, a jurisdiction given to the High Court to stay execution of its judgments pending an appeal to the Court of Appeal.

(3)	Order 45, rule 10 of the High Court Rules, 1988 provides;

Matters occurring after judgment: stay of execution, etc. (O.45.r10)

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.

[E]	THE PRINCIPLES TO BE APPLIED

(A)	The Court of Appeal of Fiji in Native Land Trust Board v Shanti Lal had set out the law on stay pending appeal.  His Lordship Chief Justice Gates  (as His Lordship was then) in the said Court of Appeal case stated that a Court considering a stay should take into account the following questions:

(a)	Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory.
(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 interests in the proceeding.
(g)	The overall balance of convenience and the status quo.

(B)	The principles laid down by the Court of Appeal in the above case is used and cited in various cases for stay application.

The Fiji Court of Appeal in “Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd ” held thus;

“The principles to be applied on an application for stay pending appeal are conveniently summarized in the New Zealand text, McGechan on Procedure (2005):”On a stay application the Court’s task is carefully to weight all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful.” Duncan v Osborne Building Ltd (1992) 6  PRNZ 85 (CA), at p.87.  

The following non comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission;

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 interests in the proceeding.
g)	The overall balance of convenience and the status quo.

The basic factors are summarised below;

(a).	The basic rule is that a litigant is entitled to enjoy the fruits of its success but however the Court has unfettered discretion to impose a stay of execution if the justice of the case so demands (BMW AG v Commissioner of HM Revenue and Customs).

(b). 	A stay of the proceedings will be granted to protect the status quo and not to render the appeal nugatory.
 [F]	DISCUSSION

(01)	The granting of a Stay of execution of any judgment pending an appeal is always a matter for discretion of the Court and can be given either absolutely or for such period and subject to such conditions as the Court thinks fit.

(02)	The defendant contends that the application should be granted because; (Reference is made to paragraph (8), (9) and (10) of the affidavit in support of the defendant sworn on 27/11/2019).

(8)	The if stay is not granted, the Plaintiff will execute the judgment and I will be really prejudiced in the sense that I will have to pay the plaintiff the estate monies in the sum of $6,556.7 and most importantly I will be removed as the trustee of the estate as I have been the caretaker of the estate for fourteen (14) years and there was no misbehavior, dishonesty and misconduct on part in the management of the estate.

(9)	That no prejudice will be caused to the plaintiff if the Order sought by the Defendant is granted based on the reasoning that the matter is the judgment was delivered on 25th day of October and the appeal is filed on time.

(10)	I seek a Stay of proceeding upon the grounds that I have filed an appeal against the said decision and I have a meritorious grounds appeal.

(03)	The plaintiff’s opposition to the application is as follows:

(*)	The defendant has failed to meet the criteria and the principles laid down in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [supra].

(*)	The interests of justice are against the grant of a Stay.

(*)	The plaintiff has been waiting for this matter to be finalized from 2012 and needs to have benefit of the judgment.

(*)	The appeal does not deal with any serious questions of law.

(*)	The defendant has breached paragraph (ii) of the order.

(*)	The appeal will not be rendered nugatory and will not prejudice the defendant if Stay is refused.

Counsel for the plaintiff relied on the following decisions;

(1)	Edmund March v Bank of Hawaii, John Howard and Puran Sundarjee, Murjee Sundarjee, Pravin Sundarjee & Hasmukh Sundarjee, (in consolidation with) Puran Sundarjee, Murhee Sundarjee, Pravin Sundarjee, Hasmukh Sundarjee v Edmund March

(2)	NBF Asset Management Bank vs Taveuni Management Services Limited & The Registrar of Titles & The Attorney General of Fiji 

(3)	Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd 

(04)	The defendant carries the burden of establishing by affidavit evidence that if a stay is not granted his appeal would be rendered nugatory.  I bear in mind the general rule that the Court does not “make a practice of depriving a successful litigant, the fruits of litigation and locking up funds to which prima facie he is entitled” pending appeal. [‘The Annot Lyle; Monk v Bertram].  The Court may grant a stay of execution where the defendant demonstrates that his appeal will be rendered nugatory or substantially so if a stay is not granted.

Will the appeal be rendered nugatory?
[This is not determinative]

(05)	It was said in John Fong v John T Polotini and Another  at page (18) that the only ground, as a general rule, for a stay of execution, is an affidavit showing that if the appeal were successful then there would be no possibility of getting back any costs or damages which had been paid to the other party.  There is not a word about this in the defendant’s supporting affidavit.

(06)	The relevant factor which this Court must consider is in a matter such as this is whether if the appeal is successful, it will turn out to be nugatory because of the plaintiff’s financial inability to repay to the defendant the estate monies in the sum of $ 6,556.79 which the Court of Appeal might subsequently direct him to repay.  The defendant has not adverted to this question in the supporting affidavit. In my view, he should have.  There is virtually no evidence in affidavit form to support that the plaintiff would not be financially capable of returning the estate monies in the sum of $ 6,556.79 paid to him if the appeal is successful. Thus, I am not satisfied that declining a stay would render the appeal nugatory.

The bona-fides of the application

(07)	An applicant for a Stay must satisfy the Court that he is acting in good faith in making the application. The judgment was delivered on 25th October, 2019.  The summons for the Stay of execution was filed on 02nd December, 2019.  Turning to the period of delay, it is, at least (01) month and eight (08) days, which, on any view of it is substantial.  The length of the delay is long and is not excusable.  These delays cause great hardships, amounting to very real injustice to the plaintiff.

(08)	Turning to the second issue, that is the reason for the failure to file an urgent application for stay of execution, no reasons for it are put forward in the Affidavit of the defendant.  The explanation given by Counsel for the defendant from the bar table is not evidence.

	No explanation for the delay has been given by affidavit evidence.

(09)	As stated that the defendant has not offered any explanation by affidavit evidence for late application for Stay execution of the judgment.  I therefore deduce that the appeal appears not to be bona fide. It is safe to infer that the appeal is merely for purposes of delay of pay-out. What is more damaging is that the defendant has breached paragraph E(ii) of the judgment which provides;

“The defendant is ordered to pay the plaintiff the estate monies in the sum of $6,556.79.  The estate monies should be paid within 14 days from the date of the judgment”.

(10)	The judgment was delivered on 25-10-2019, which means that the defendant was to pay the estate monies in the sum of $6,556.79 to the plaintiff by 08-11-2019.The defendant did not pay the estate monies to the plaintiff by 08-11-2019.  If he was not so minded to pay, he should have applied for a Stay execution of the judgment before 08-11-2019. The defendant on his own volition chose not to do so.  This is the conduct of the defendant applying for Stay execution of the judgment.  This does not leave a good impression.  The conduct of the party applying for relief is always an important element for consideration.

(11)	I bear in mind what was said in Wilson v Church 
“Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in ordinary cases to make such orders for staying proceedings under a judgment appealed from, as would prevent the appeal, if successful, from being nugatory.  But the Court will not interfere if the appeal appears not to be bona fide, or there are other sufficient exceptional circumstances.”
            								(Emphasis added)

(12)	It has long been recognised that an application for stay should be filed promptly after judgment.  An appellant wishing to stay execution should not wait until execution steps are taken.  Our interruption of the business of the Court to hear the stay application should not be taken as condoning late applications.
	
The effect on third parties

(13)	There are no third parties involved in the matter.

The novelty and importance of questions involved

(14)	In my view, there is no novelty in this matter.  It is hard to perceive any novel and important questions to be decided in this matter.  There is no novelty in this matter as it involves a question of:

		(i)	Whether the Defendant has unlawfully interfered and/or stopped 
the use, occupation and cultivation of the Plaintiff’s share of the cane farm?

		(ii)	Did the Defendant refuse and/or neglect to pay the Plaintiff his 
share of the cane proceeds amounting to $6,556.79 from 2006 to 2011?

		(iii)	Whether the actions of the Defendant between years 2006 to 2011 in 
breach of his duties as Executor and Trustee of the Estate of Kunjal Bi?
	
	The public interest in the proceeding

(15)	The present case is between two parties and would affect only them.  The grounds of appeal lack novelty and importance other than to the respective parties.  The grounds do not fit into the category of ‘far reaching questions of law’ or ‘a matter of great general public importance’.

	The balance of convenience

(16)	The test here is a determination of which of the two parties will suffer greater harm from granting or refusal of an interim stay pending a determination of the appeal on merits, balancing of conflicting consideration is required, between the underlying principle that a litigant, is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal will render the appeal nugatory or substantially nugatory.

(17)	In Stephen Patrick Ward v. Yogesh Chandra it was stated:

“[25]	In Atul Kumar Ambalal Patel v. Krishna Murti (unreported) Civil Action HBC 022.99L in ruling against the grant of a stay, the High Court stated at pages 2-3;

“Once successful, the litigant should not lightly be deprived of the fruits of his successful litigation: The Annot Lyle (1886) 11P.D. 114 at 116 CA; Monk v. Bartram (1891) 1 AB 346.  The Power of the Court to grant a stay is discretionary.  The Attorney-General v. Emerson and Others (1890) 24 QB 56; and it is “an unfettered discretion” Winchester Cigarette Machinery Ltd v. Payne and Anor (No.2) (1993) TLR 647 and 648.

If a stay was not granted by the Court at the time of making the order now appealed against, the applicant must show that special circumstances exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy Tuck v Southern Countries Deposit Bank (1889) 2 TLR 400; Barker v. Lavery (1885) 14 QBD 760. In the Winchester Cigarette Case (supra) at 648 Lord Justice Hobhouse put it “The Appellant has to show some special circumstances which took the case out of the ordinary.”

[26]	That summary was cited with approval by this Court in Prem Singh v. Krishna Prasad and Anor. CBV0001.02S, 25th April, 2002.

(18)	Barker v. Lavery  was in a property dispute.  The defendant against whom a costs order had been made appealed to the House of Lords.  He then applied to the Court of Appeal for a stay in respect of the costs order.  He offered payments into Court of the full amount and expected a stay to be granted on these terms.  The Lord Chancellor, the Earl of Selborne at page 769 asked in argument:

“….Are there any circumstances in evidence to show that the plaintiff, if he is defeated in the House of Lords, will be unable to pay back the money levied by execution against the defendant?”
	
(19)	Then Lord Selborne gave a succinct judgment at page 770:

“……the defendant is not entitled to have the application granted as a matter of course.  Evidence ought to have been adduced to show, that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords.  As to the request for time to make an affidavit about the plaintiff’s means, we cannot accede to it; those, who apply for a stay of execution, must come before us prepared with all necessary materials.”

(20)	Atkins v. Great Western Railway  was most likely was a personal injury case.  A civil jury had awarded the plaintiff 350 pounds against the Great Western Railway.  

Counsel for the railway company’s grounds for a stay were:

“that a great deal of prejudice had been imported into the case and that these were the strongest grounds of appeal.”

(21)	Lord Esher M.R. dismissed the application, followed Barker v. Lavery and dismissed the applications robustly (at page 400):

“The Master of the Rolls said that he would not undertake to say that the Court of Appeal would never listen to what happened at the trial in order to see whether they would grant a stay of execution, but, as a general rule, the only ground for such a stay was an affidavit showing that if the damages and costs were paid there was not reasonable probability of getting them back even if the appeal succeeded.  He would not say that the Court would not interfere for some other reason, but that there were strong grounds for an appeal was no reason, for no one ought to appeal without strong grounds for doing so.  In Barker v. Lavery (14 QBD, 769) the Court enunciated that rule when Lord Selborne, then Lord Chancellor, was present, and he was precisely of the same opinion.  The application should be refused.”

(22)	I have already formed the view that declining a stay would not render the appeal nugatory. [See, paragraph (06) above]. The plaintiff was deprived of his share of sugar cane harvest proceeds from 2006 to 2011. The action was instituted in 2012.  The plaintiff has been waiting for the last seven (07) years to reap the fruits of litigation.  The defendant took one month and eight days to apply for Stay of execution.  The defendant did not show any urgency to apply for Stay, so what prejudice might be suffered by the defendant must be questioned.  

(23)	As noted in paragraph (06) above, I proceed on the assumption that declining a stay would not render the appeal nugatory.  There is virtually no evidence in affidavit form to show that if a stay is not granted, the defendant will face irretrievable loss.  I am far from satisfied that the grounds of appeal raise an arguable issue (See paragraph (31) to (37) below)  and so, even if a stay is granted, the defendant will still have to pay out the estate monies and will be removed from his position as the Executor and Trustee.  I also note that the defendant has, by his actions, been able to hold up execution of this judgment for four (04) months.

(24)	As stated in paragraph (06) above, there is virtually no evidence in affidavit form to support that the plaintiff would not be financially capable of returning the estate monies paid to him if the appeal is successful.  

(25)	As stated above, the plaintiff was deprived of his share of sugar cane harvest proceeds from 2006 to 2011. I do not consider that the plaintiff after already having waited for (07) years to obtain relief should be required to wait for another year.  Any delay in obtaining the fruits of judgment is prejudicial. In my view, the overall balance of convenience favours the plaintiff.  The Court finds that the factor of the degree of prejudice to the plaintiff does count against the defendant’s application for stay.  I have come to the clear conclusion that the plaintiff will suffer greater prejudice (if the application is allowed) than the defendant (if the application is refused).
            
 Grounds of Appeal

(26)	The defendant says that he has meritorious grounds on appeal. Counsel for the plaintiff takes issue on this point and says that the defendant has no meritorious grounds and the appeal is designed to delay the plaintiff in enjoying the fruits of the judgment.

(27)	It is not my function to assess the actual merits of the appeal.  This Court is required to consider the bona fides of the defendant in the prosecution of the appeal and whether the appeal involves a novel question of some importance.  It would be wrong for this Court, on this application, to say anything that indicates any view on to the merits of the appeal, because the judgment is the subject of appeal to the Court of Appeal, and will have to be heard and dealt with. The issue of ‘novelty’ is not crucial.

(28)	In the illuminating judgment of Resident Justice of Appeal, William Marshall, in A.G. of Fiji and Ministry of Health v Loraina Dre, contained the very significant passage following;

The heading of note 59/13/1 is “When will a stay of execution be granted”.
	I set out only the parts of this note that are relevant to the present discussion.

“An appeal does not operate as a stay on the order appealed against, except to the extent that the Court below, or the Court of Appeal (or a single Judge of the Court of Appeal otherwise directs (O.59, r.13(1) 9a); see also World Trade Centre Group Ltd & Another v. Resourceful River Ltd & Another [1993] H.K.L.Y. 847; and Re Schindler Lifts (H.K.) Ltd v. Dickson Construction Co. Ltd [1993] H.K.L.R. 45). It follows that service of notice of appeal and setting down the appeal does not, by itself, have any effect on the right of the successful party to act on the decision in his favour and to enforce the order of the Court below.  If an appellant wishes to have a stay of execution, he must make an express application for one (see further Para. 59/13/5 (below)).  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: World Trade Centre Group Ltd & Another v. Resourceful River Ltd & Another; Civ. App No. 70 of 1993, May 12, 1993.  That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted. See also Asha Harskishin Premsingh v. Harskishin Isarsingh Premsingh Kishinani M.P. No. 3436 of 2000, November 12, 2000, unreported.  Neither the Court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so.  Unless a stay can be justified by good reasons, one will not be ordered (Star Play Development Ltd v. Bess Fashion Management Co. Ltd, unreported, HCA No. 4726 of 2001, May 28, 2002: and see Wenden Engineering Service Co. Ltd v. Lee Shing Yue Constructions Co. Ltd, unreported, HCCT No. 90 of 1999, July 17, 2002, [2002] H.K.E.C. 1059).  The Court does not “make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled”, pending an appeal (The Annot Lyle (1886) 11 P.114 at 116, CA; Monk v. Bartram [1891] 1 Q.B.346]….

…..Where the appeal is against an award of damages, the long established practice is that a stay will normally be granted only where the appellant satisfies the court, that, if the damages are paid, then there will be no reasonable prospect of his recovering them in the event of the appeal succeeding (Atkins v. Great Western Ry Co. (1886) 2 T.L.R. 400, following Barker v. Lavery (1885) 14 Q.B.D. 760, CA; this rule applies equally to Admiralty cases, see:  The Annot Lyle, above, at 116). ……”

        (Emphasis added)

(29)	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 for considering whether leave to appeal should be granted.

(30)	The grounds of appeal upon which the defendant relied on are;

The learned Trial Judge his Lordship Jude Nanayakkara erred in law and in fact as follows:

(a)	His Lordship held at paragraph 8 of his judgment that the plaintiff claimed only prayer (a), (h) and (j) in the plaint when in fact the plaintiff also claimed prayer (b) of the Statement of Claim;

(b)	His Lordship failed to give consideration to the fact that the plaintiff failed to prove his claim in respect of the prayer (b) of the Statement of Claim;

(c)	His Lordship wrongly found at paragraph 10 of the judgment that the suggestion made to the plaintiff did not deny in his evidence that he was in outside employment and consequently the Lordship failed to give aspect sufficient or any weight.

(d)	His Lordship wrongly found at paragraph 11 of the Judgment that Jalil and Isan’s evidence lends credence to the plaintiff’s claim that the defendant did not allow him to cultivate on his share in the estate farm from the year 2010 as there is nothing in the evidence of Jalil and Isan that exhibit that they had the knowledge whether the defendant disallowed the plaintiff to cultivate his portion of the land.  This finding does not logically follow the evidence.
(e)	His Lordship was wrong in finding that the Defendant had admitted the paragraphs 11 and 12 of the Statement of Claim, particularly when both the counsel at the start of the trial informed the court that issue to be tried included whether the sum claimed in prayer (a) was owed to the Plaintiff and on this basis the court case was run;

(f)	His Lordship failed to give consideration to the fact that the plaintiff failed to put evidence before the proving that the amount claimed prayer (a) was owed to him.

(g)	His Lordship did not give sufficient consideration of the fact that the plaintiff did not produce in court evidence of amount of cane he cultivated in each of the year that he claimed not to have been made proceeds that he was entitled to.

(h)	His Lordship wrongly found at paragraph 20 to 24 that the Defendant was in breach of his duties as the trustee of the Will and guilty of misconduct and dishonesty.

(i)	His Lordship failed to give consideration to the fact that the Estate Accounts had been filed into court prior to the trial.

(j)	His Lordship wrongly found at paragraphs 27 and 28 that there was misbehaviour, dishonesty and misconduct on part in the management of the Estate, particularly when his Lordship failed to give any consideration at all that Estate accounts that had been filed in court;

(k)	His Lordship wrongly awarded costs against the Defendant and did not consider that the Plaintiff did not fully prove his claim and/or any part of it all;

(l)	His Lordship wrongly removed the Defendant as a trustee of the Estate without carrying out proper enquiry by considering the amount of the Estate as whether the Defendant had discharged his duties towards the Estate.

(m)	His Lordship wrongly appointed the Plaintiff as a trustee of the Estate without first carrying out an enquiry as to the suitability of the plaintiff for the roles of the Trustee.

(31)	The grounds of appeal c, d, h and j are based on findings of fact by this Court.  They are not based on any serious questions of law or on some misunderstanding on law. Pursuant to Section 12 (1) (c) of the Court of Appeal Act, an appeal in a civil case to the Court of Appeal shall lie on any ground which involves a question of law. Besides, it is very well settled law that an appellate court will seldom interfere with findings of fact by a trial judge having seen and heard the evidence of witnesses. See (1).  Benmax v Austin Motor Co. Ltd.   (2)  Bebe v Telecomm Fiji Ltd [Unreported, Fiji Court of Appeal] (3) South Pacific Academy of Beauty Therapy v Coral Surf Resort Ltd [Unreported, Fiji Court of Appeal]  (4)  Mahadeo Singh v Chandar Singh.

(32)	It was contended that I failed to give consideration to the fact that the plaintiff failed to prove prayer (b) of the statement of claim.

	There was no need for this Court to give consideration to the prayer (b) of the claim because before the commencement of the trial, counsel for the plaintiff informed Court that the plaintiff claims only prayer (a), (h), and (j) in the plaint.

(33)	It was also contended that I failed to give consideration to the fact that the plaintiff failed to establish by evidence that the defendant neglected/refused to pay the plaintiff’s share of cane proceeds in the sum of $6,556.79.

	With respect, I cannot accept this.

(34)	In paragraph (11) and (12) of the statement of claim, the plaintiff made the following allegations of fact against the defendant;

(11)	Between the years 2006 to 2011 the defendant has in breach of duties as Executor and Trustees refused and/or neglect to pay the plaintiff share of cane proceeds in the sum of $6,556.79

(12)	Despite several demands by the plaintiff the defendant has neglected or refused to pay the said amount or any other amount.

(35)	The above allegation of fact is not specifically traversed by the defendant in his pleading. The defendant in his statement of defence does not deal with paragraph (11) and (12) of the plaintiff’s statement of claim. Therefore, by virtue of the provisions of Order 18, rule 12, the defendant has admitted the allegation of fact made by the plaintiff in paragraph (11) and (12) in the statement of claim by not traversing them.  
(36)	It was contended that I failed to give consideration to the fact that the estate accounts had been filed in court prior to the trial. With respect, it does not matter. Counsel for the defendant misses the point. The defendant did not render accounts of the trust estate when called upon to do so by the plaintiff. The refusal to render accounts is the subject of the case.

(37)	The plaintiff has indisputably testified that he has asked the trustee for the accounts but the trustee failed to give any account of the estate.  The trustee was under a common law duty to provide accounts to the beneficiaries.  The Halsbury’s Laws of England, 4th edition, Volume 17, paragraph 1551 clearly stipulates that it is the duty of a personal representative to keep accounts and render them to the beneficiaries when called upon to do so.  It states;

“It is the duty of the personal representative to keep clear and accurate accounts always to be ready to render such accounts when called upon to do so.  It is no excuse that they are inexperienced in keeping accounts, for in that case it would be their duty to employ a competent accountant to keep them.  When they are required by the beneficiaries to furnish accounts, they may demand to have the costs of doing so paid or guaranteed before complying with the request.”

(38)	For the reasons which I have endeavoured to explain, I am far from satisfied that the grounds of appeal raise an arguable issue.

[G]	CONCLUSION

(39)	In this case, for the reasons I have given, I am not satisfied that the execution of the judgment should be stayed.  In the circumstances, the application is refused.

[H]	ORDERS

(1)	The application for Stay of execution of the judgment is refused.
(2)	I make no order as to costs.

.……………………..
Jude Nanayakkara
[Judge]

At Lautoka
Friday, 28th February, 2020