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Hussein v Prasad [2022] FJSC 7; CBV 15 of 2020 (3 March 2022)

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

Civil Appeal No. CBV 15 of 2020

[Court of Appeal No. ABU 2 of 2018]


BETWEEN:

SABIR HUSSEIN aka SABIR QAIYUM HUSSAIN; and

KHALIL HUSSAIN

PETITIONERS


AND:

GAYA PRASAD aka MUKESH PRASAD; and

PRAVEENA PRASAD

RESPONDENTS


Coram:

The Hon Chief Justice Kamal Kumar,

President of the Supreme Court


Counsel:

Mr. S. Kumar for the First named Petitioner/Applicant

Mr. S. Singh and Ms K. Saumaki for the Respondents


Date of Hearing: 15 December 2021

Date of Ruling: 3 March 2022


RULING

(Application for Stay of Execution)


Introduction

  1. On 5 October 2021, the Applicant (First named Petitioner) filed Application for Stay of Execution of certain Orders of the High Court in Civil Action No. 197 of 2014, pending determination of the Appeal.
  2. On 12 October 2021, the Applicant was granted Leave to file Amended Summons and parties were directed to file Affidavits.
  3. On 13 October 2021, the Applicant filed Amended Summons seeking following Orders:-

“1. An Order that interim stay granted until the determination of stay for execution of all other and further proceedings to enforce and/ or execute the Judgment of Justice Seneviratne dated 27th day of January 2017 pending the Petition for Special Leave to Appeal to the Supreme Court of Fiji is determined.


  1. An order that the High Court Judgment of Justice Seneviratne dated 27th day of January 2017 as well as the Court of Appeal Ruling of Justice Guneratne dated 18th day of September, 2020 be Stayed pending the determination of the Petition for Special Leave to Appeal to the Supreme Court of Fiji.
  2. An order that there be stay of execution of all other and further proceedings to enforce and/ or execute the Judgment of Justice Senevirante dated 27th day of January 2017 pending the determination of the Petition for Special Leave to Appeal to the Supreme Court of Fiji.
  3. An order that “Court Order” dated 16th day of September, 2021 placed by the Respondents Solicitors in due execution if the Judgment in Civil Action No. HBC 197 of 2014 against the Petitioner’s properties being State Lease No. 23012, State Lease No. 23013 and CROWN Lease No. 10267 be withdrawn and/ or removed and/ or cancelled and/ or set aside and SUCH ORDER be granted as the Honorable Court deems just in favour of the Respondents restricted to one property only that being on Crown Lease No. 10267 until the appeal is determined or otherwise.
  4. An order for review and/ or retrial with full compliance with the due process of law, especially Order 6 Rule 6 and Order 18 Rule 1 of the High Court Rules 1988.
  5. An order that leave be granted for the Petitioner to file Supplementary Affidavit Verifying Petition encompassing additional and/ or new proposed grounds of Appeal, Alternatively this Affidavit of Aitul Bi Hussain filed in support of this application be regarded as the Supplementary Affidavit to the Affidavit filed in Support of Affidavit Verifying Petition.
  6. That such further or other orders as this Honorable Court may determine.
  7. That the cost of this application be in cause.”

(“the Application”)


  1. On 16 November 2021, parties were directed to file Submissions and Application was adjourned to 15 December 2021, for hearing.
  2. The Application was heard on 15 December 2021, and adjourned for Ruling on Notice.
  3. Following Affidavits were filed on behalf of the parties:-

For Applicant:

(i) Affidavit of Atul Bi Hussain in Support of the Application sworn on 1st October 2021 and filed on 5 October 2021 (“Hussain’s 1st Affidavit”).

(ii) Affidavit of Atul Bi Hussain sworn and filed on 2 November 2021 (Hussain’s 2nd Affidavit).

For Respondents:

Affidavit of Shivagni Dutt sworn and filed on 26 October 2021 (“Shivagni’s Affidavit”).


Preliminary Issue

  1. It is noted that Respondents’ Affidavit in Opposition sworn on 23 October 2021, is annexed to Shivagni’s Affidavit.
  2. It is saddening to note that, the Respondents’ Solicitors chose this method of filing the Affidavit in Opposition which is totally unwarranted and unacceptable.
  3. This Court understands that in certain situations it would not be possible to file Opposing Affidavit with the prescribed time.
  4. In such situations the concerned party may seek leave of the Court to file the Affidavit by alternate means.
  5. Courts have on previous occasions granted leave for parties to file scanned copy of Affidavits, via facsimile or otherwise with the understanding that the original would be filed prior to the hearing date or any other date.
  6. No leave was sought to file the Respondents’ Affidavit in Opposition in the manner which the Respondents filed it.
  7. It is also noted that at paragraph 4 of Shivangi’s Affidavit she states as follows:-

“4. I am advised by the Respondent that the original document has been mailed and we will file this on receipt with the Supreme Court Registry”.


  1. Shivagni’s Affidavit was filed 52 days prior to the hearing date but no attempt has been made to file the Respondents Affidavit in Opposition in Court as per Shivagni’s undertaking.
  2. In view of what is stated at paragraphs 5 to 12, this Court will not take Shivagni’s Affidavit into consideration.

Application for Stay


  1. It is well established and undisputed that this Court have unfettered discretion to either grant or refuse stay of execution.
  2. His Lordship Justice Gates, the then President of Supreme Court in Ward v. Chandra [2011] FJSC8; CBV 0010 (20 April 2011) stated as follows;

“The issue for determination is whether the Petitioner’s case prior to the hearing is sufficiently exceptional to allow for some interlocutory relief. For at the Supreme Court, that is the final Court of Appeal stage, the hurdles to be overcome for the petitioner seeking leave are formidable. Sufficiently exceptional may be a stronger test than that favored in New South Wales where the hurdles was said to be overcome if “the applicant could demonstrate a reason or an appropriate case to warrant the exercise of its discretion in its favour...”


  1. Courts have over number of years identified various factors that needs to be considered in determining application for stay of execution of judgment.
  2. In Chand v. Lata [2008] FJHC; Civil Action No. 38 of 2011 (18 July 2008) identified the principles governing stay of execution as follows:-

“1. The grant or refusal of a stay is a discretionary matter for the Court: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson (1889) 24 QBVC, at 58, 59.

  1. The Court does not make a practice of depriving a successful litigant of the fruits of litigation by locking up funds to which prima facie the litigant is entitled, pending an appeal: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Supreme Court Practice 1979, p. 909; The Annot Lyle (1886) 11 PD, at 116 (CA); Monk v. Bartram (1891) 1 QBV 346.
  2. When a party is appealing, exercising an undoubted right of appeal, the Court ought to see that the appeal, if successful, is not nugatory: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Wilson v. Church (No. 2)(1879) 12 ChD, at 456, 459 (CA).
  3. If there is a risk that the appeal will prove abortive if successful and a stay is not granted the Court will ordinarily exercise its discretion in favour of granting a stay: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Scarborough v. Lew’s Junction Stores Pty Ltd [1963] VicRp 20; (1963) VR 129, at 130.
  4. In exercising its discretion the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson.
  5. A stay will be granted where the special circumstances of the case so require, that is, they justify departure from the ordinary rule that a successful litigant is entitled to the fruits of the litigation pending the determination of any appeal: Prasad v. Prasad [1997] FJHC 30; HBC0307d.96s (6 March 1997), citing Annot Lyle [1886] UKLawRpPro 31; (1886) 11 PD 114, at 116; Scarborough v. Lew’s Junction Stores Pty Ltd [1963] VicRp 20; (1963) VR 129, at 130; and see also Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union.
  6. In exercising its discretion the Court will weigh consideration such as balance of convenience and the competing rights of the parties before it: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing AG v. Emberson.
  7. As a general rule, the only ground for a stay of execution is an Affidavit showing that if the damages and the costs were paid there is not reasonable probability of getting them back if the appeal succeeds: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union, citing Atkins v. GW Ry (1886) 2 TLW 400.
  8. Where there is a risk that is a stay is granted and the assets of the Applicant will be disposed of, the Court may, in the exercise of its discretion, refuse the application: Fiji Sugar Corporation Limited v. Fiji Sugar & General Workers’ Union”.
  9. In Natural Water of Fiji Limited v. Crystal Clear Mineral Water (Fiji) Limited [2005] FJCA 13 ABU0011.2004S (18 March 2005) Fiji Court of Appeal stated as follows:-

“The following non-comprehensive list of factors conventionally taken into account by a court in considering a stay emerge from Dymocks Franchise Systems (SW) Pty Ltd v. Bilgola Enterprises Ltd (1999) 13PRNZ 48, at p.50 and Area One Consortium Ltd v. Treaty of Waitangi Fisheries Commission (12993) 7PRNZ 2000:


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


  1. In Murthi v. Patel [2000] FJCA 17; ABU0014.2000S (5 May 2000) his Lordship Justice Ian Thomson JA (as he then was) stated as follows:-

“A number of considerations have to be taken into account by a judge exercising his discretion whether or not to grant a stay of execution. Prima facie the party succeeding in the High Court is entitled to enjoy immediately the fruits of his success. However, if an appellant shows that he has a good arguable case to present on the hearing of the appeal and if refusal of the stay will cause detriment to the appellant which cannot be effectively remedied if his appeal succeeds, so that the appeal will be rendered nugatory, it may be appropriate for the discretion to grant a stay to be exercised in his favour.”


  1. His Lordship Justice Calanchini (as he then was) in New World Ltd v. Vanualevu Hardware (Fiji) Ltd ABU0076.2015 (17 December 2015) stated as follows:-

“The factors that should be exercised by this Court in an application such as is presently before the Court were identified in Natural Waters of Viti Ltd v. Crystal Clear Mineral Water (Fiji) Ltd (ABU 11 of 2004 delivered on 18 March 2005). Generally a successful party is entitled to the fruits of the judgment which has been obtained in the court below. For this Court to interfere with that right the onus is on the Appellant to establish that there are sufficient grounds to show that a stay should be granted. Two factors that are taken into account by a court are (1) whether the appeal will be rendered nugatory if the stay is not granted and (2) whether the balance of convenience and the competing rights of the parties point to the granting of a stay.”

  1. In view of what is stated in New World case, Courts when dealing with Application for Stay of Execution should:-

(i) Consider whether appeal if successful will be rendered nugatory; and

(ii) The balance of convenience.


  1. In assessing balance of convenience Court would take into account the factors stated in Natural Waters case which factors are not exhaustive.
  2. It must be understood that when Court is empowered to exercise discretion, it should do so judicially and in the interest of justice.
  3. The factors provided by Courts when dealing with certain Applications are to guide Court to reach a decision which is fair and just under the circumstances of each case and to ensure the decisions are consistent on such Applications based on similar set of facts.
  4. In exercising the discretion, the Court should consider the factors highlighted by superior Courts in addition to any other factors they think necessary to determine whether interest of justice lies in favour of granting the stay or refusing it.
  5. The Applicant submits that if stay is refused:-
    1. The Respondents will attempt to dispose of the Applicant’s real estate properties which Applicant will not be able to get back if appeal is successful;
    2. The Respondents are residing overseas and as a result it will be difficult to enforce any Judgment against them.
  6. This Court takes note of the following:-
    1. The Respondents are moving forward to enforce the High Court Judgment by disposing of the Applicant’s real estate properties.
    2. It is undisputed that the Respondents are residents of Canada.
  7. The Court finds that if the Respondents do dispose off the Applicant’s real estate properties the Applicant if successful, will not be able to recover those properties unless he can defeat the doctrine of indefeasibly of title and may have difficulty to enforce any monetary judgment if one is pronounced by the Court.
  8. Also if the Applicant is able to establish that he has suffered any loss or damage then it will be difficult for him to recover it from the Respondents who are residents of Canada.
  9. This Court therefore, holds that the appeal if successful will be rendered nugatory if stay is refused.

Whether the Respondent will be Injuriously Affected if stay is Granted

  1. At paragraph 42 of the Respondents’ Submission, they state that:-

“42. The Respondents will be doomed if stay is granted. The Petitioner wants to sell off his properties and lives overseas. He wants to use the security of one property which has a mortgage on it. This is wrong to suggest of the Petitioner = the Respondents do not have any control over the Petitioner’s Bank or his mortgage and it will be so easy to avoid the Judgment if the Petitioner were to abandon that loan and leave the Bank to carry out a mortgage sale.”


  1. There is no evidence before this Court to show how the Respondents will be “doomed” if stay is granted.
  2. Also the Respondents have registered Caveats and have charges registered agents the real estate properties of the Applicant.
  3. A conditional stay order will definitely protect the Respondents if stay is granted and the appeal is unsuccessful.
  4. This Court therefore holds that the Respondents will not be injuriously affected if stay is granted.

Bona-fide of Applicants as to prosecution of appeal

  1. Applicant has taken all steps to ensure that appeal is prosecuted diligently and all that is left is for this Court to give direction on filing of Submission and fix a hearing date.

Novelty and importance of question involved

  1. The Applicant submits that the main question that needs to be determined is whether the Respondents in High Court judgment obtained by the Respondents against the Applicant in Civil Action Number 197 of 2014 is regular or not.
  2. Facts of this case as stated in Hussain 1st Affidavit is as follows:-
    1. On or about 16 July 2014, the Respondents filed claim against the Applicant and his father Khalil Hussain in High Court Suva being Civil Action No. 197 of 2014.
    2. On or about 23 July 2014 Nands Law filed Acknowledgment of Service as Solicitors for the Defendants.
    3. On or about 22 August 2014, Nands Law filed Statement of Defence.
    4. On 11 May 2015, Tuifagalele Legal filed Notice of Change of Solicitors on behalf of the Appellant.
    5. On 23 June 2015, Tuifagalele filed Summons for Security for Costs with Affidavit in Support of the Applicant.
    6. The Applicant was not aware that the High Court Action would be heard on 9 and 10 November 2016.
  3. Applicant’s contention is that:-
    1. At the time of issuance of the Writ of Summons he was residing overseas and as such Respondent should have obtained leave of the High Court to issue Writ of Summons against him.
    2. He never instructed Nands Law or Tuifagalele Legal and had no dealings with them. This is confirmed by letter dated 25 February 2019, from Tuifagalele Legal (Annexure “ABH7” of Hussain’s 1st Affidavit).
    3. As for Nands Law, the fact that on 5 July 2021, they wrote to Applicant’s current Solicitors informing them that they need authority from representative of Khalil Hussain’s Estate (the Second named Petitioner (Deceased)) suggest that they also did not receive any instruction from the Applicant in the High Court proceedings (Annexure “ABH18” of Hussain’s 1st Affidavit). Annexure ABH18 is letter written after the Court of Appeal Ruling.
    4. The Applicant did not sign the Affidavit in Support of Security for Cost as he was overseas on the date the Affidavit was sworn in. Tuifagalele Legal, the Solicitors who prepared the Summons for Security for Cost and Affidavit in their letter dated 25 February 2019 to the Chief Registrar (Annexure “ABH7”) states as follows: “The complainant was always representing himself to us as Sabir Hussain not knowing that his real name and identity was Khalil Hussain ......”. The complainant was Khalil Hussain, the Second-named Petitioner and not the Applicant.
  4. This Court in Fiji Revenue and Customs Services v New India Assurance Co. Ltd. [2019] CBV 20 of 2018 (15 November 2019) stated in no uncertain terms that:-

“[10] It is well established this Court has unfettered discretion to grant or refuse Leave to Appeal out of Time. The factors which of course are not exhaustive that needs to be taken into consideration when dealing with such applications are:-


(i) Length of delay;
(ii) Reason for the delay;
(iii) Chance of appeal succeeding if time for appeal is extended or merits of the case; and
(iv) Degree of Prejudice to the Respondent if application is granted.

CM Van Stilleveldto B V v. E L Carriene Inc. [1983] 1 ALL ER 699 of 704; Norwich and Peterborough Building Society v. Steed [1992] 2 ALL ER 830 at 83; Ist Deo Maharaj v. BP (South Sea) Co. Ltd. Civil Appeal No. ABU0051 of 1994S – FCA as page J.


[11] Hence the Court must be given facts, in the form of evidence explaining and/or covering these four factors.


Latchmi & Anor v. Moti & Ors (1964) 10 FLR 138.


[12] It must be understood that when Court is empowered to exercise a discretion, it should do so judicially and in the interest of justice.


[13] The factors provided by Courts when dealing with certain Applications are to guide Court to reach a decision which is fair and just under the circumstances of each case and to ensure the decisions are consistent on such Applications based on similar set of facts.


[14] In exercising the discretion, the Court should consider the factors highlighted by Superior Courts in addition to any other factors they think necessary before reaching a decision which they consider will serve interest of justice in a particular case.


[15] Interest of Justice demands that the Courts take a holistic approach by considering all the factors mentioned at paragraph [10] in addition to any other relevant factors before reaching a decision rather than dismissing the application after considering only one or two factors.”


  1. This Court takes note of the fact that Mr. Tuifagalele appeared for the Applicant at the hearing of High Court Action when even though he was not instructed by the Applicant (First named Defendant in High Court Action).
  2. It appears that there is some merit in the Applicant’s Appeal as to whether or not, the Court of Appeal took a holistic approach by fully analyzing the factors identified by the Courts in determining the Application for Enlargement of Time to Appeal.

Public Interest

  1. The issue as to whether the Court of Appeal exercised it’s discretion judicially in the interest of justice is a question of public interest.
  2. If Petition for Special Leave is granted and Appeal is successful then issue relating to Order 6 Rule of High Court Rules 1988 which is a point of law and of public interest, will need to be determined by this Court.

Conclusion

  1. This Court after considering the Affidavit evidence and Submissions made, finds that:-
  2. Interest of justice dictates that stay be granted pending determination of Petition for Special Leave to Appeal and if Leave is granted then until determination of the Appeal.

Costs

  1. I take into consideration that the parties in addition to written submissions made oral submission.
  2. This Court finds that the Applicant has some merits in the Petition for Special Leave to Appeal.

Orders

  1. This Court makes following Orders:-

Hon. Mr. Justice Kamal Kumar

President of Supreme Court


Solicitors:

Sunil Kumar Esq. for the Applicant

Shelvin Singh Lawyers for the Respondents


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