Prasad v Sagayam [2019] FJCA 15; ABU82.2018 (22 February 2019)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU 82 OF 2018
(High Court HBC 46 of 2017)

BETWEEN:

RAJENDRA PRASAD
Appellant

AND :

DEO SAGAYAM
Respondent

Coram : Calanchini P

Counsel: Ms S Ravai for the Appellant
Mr K Maisamoa for the Respondent

Date of Hearing: 24 January and 5 February 2019
Date of Ruling : 22 February 2019

RULING

[1] This is a renewed application for a stay pending appeal. On 20 August 2018 the High Court delivered judgment in an appeal from a decision given by the Master on 13 October 2017. In proceedings commenced by Rajendra Prasad (the appellant) under Order 113 of the High Court Rules the Master ordered that Prasad be granted immediate vacant possession of the property contained within Crown Lease Ref. No. 4/7/2015 more particularly described as Lot 2 Plan LDSW 448 proposed S/D of Lot 4 ND 5014 at Vuda in Ba province with an area of approximately 2000m² (the property). The order was made against Deo Sagayam (the respondent) who was ordered to pay $500.00 costs.

[2] Deo Sagayam filed an appeal in the High Court against the Master’s decision. At the conclusion of the appeal hearing on 15 June 2018 the learned High Court Judge indicated that he would allow the appeal and set aside the Master’s decision and ordered costs summarily assessed at $2,500.00 with reasons in writing to follow later. The written judgment was delivered on 20 August 2018.

[3] Rajendra Prasad had commenced the proceedings by Originating Summons under Order 113 as the sole executor and trustee of the estate of Nokaiya (deceased) against the respondent Deo Sagayam seeking vacant possession of the property. The deceased, Nokaiya, passed away on 28 July 1980. Deo Sagayam deposed that he was occupying the property by reason of his marriage to the daughter of Prasad’s brother, in other words Sagayam was married to Prasad’s niece and that he had been staying on the property since 2008.

[4] The learned Judge noted that in summary proceedings under Order 113 Rule 3 a plaintiff must state in his supporting affidavit his or her interest in the land. The deponent must set out the circumstances in which the land has been occupied without licence or consent and in which his or her claim for possession arises. The Judge found that the Crown Lease Reference No.4/7/2015 on which Prasad relied for commencing the proceedings under Order 113 for possession was not a lease number by itself. The Judge noted that it was only a file number under which an approval to lease had been given. The approval appears to be dated 15 February 1989. The Court noted that the approval expressly prohibited occupation of the land approved to lease until the rent as estimated and the balance of the survey fee had both been paid. The Court was satisfied that there was no evidence to establish that Prasad had complied with those conditions. The Judge concluded that Prasad could not have occupied the land until he had paid the survey fee together with the estimated rent. In addition the approval was granted subject to the surrender of CL 5303 which expired in 2003. There was no evidence that CL 5303 had been surrendered. Under those circumstances the approval to lease was deemed to be cancelled without further notice. This had the effect of removing Prasad’s interest in the land and as a result he did not have the necessary interest in the land occupied by the respondent that was required to commence proceedings under Order 113. The Court also concluded that the respondent was not a trespasser as he had married Prasad’s niece and was living with her on the property.

[5] The effect of the decision of the High Court is that Sagayam should be permitted to resume occupation in the event that he had been evicted as a result of the Master’s order which had been set aside by the High Court. It would appear, although it is by no means clear from the affidavit material, that Sagayam may not currently reside on the property.

[6] The High Court concluded that Prasad did not have the necessary standing to bring an action under Order 113 of the High Court Rules and that Sagayam was not in occupation of the property as a trespasser. The appeal to this Court by Prasad can only be concerned with those two conclusions.

[7] It is at this point important to recall that this is an appeal from the High Court in the exercise of its appellate jurisdiction. As such under section 3(4) of the Court of Appeal Act 1949 (the Act), appeals to the Court lie on a question of law only.

[8] Being dissatisfied with the Judgment the appellant filed and served within time a notice of appeal relying on 10 grounds of appeal that are all stated to be based on errors in law and in fact by the trial Judge. Whether any of the grounds specified in the notice of appeal do involve a question of law only will be a matter that the Court of Appeal must consider as a jurisdictional issue. However the question of jurisdiction does have some relevance to the issue of stay pending appeal.

[9] Under Rule 34 of the Court of Appeal Rules (the Rules) an appeal does not operate as a stay of execution unless the court below or this Court otherwise orders. Pursuant to Rule 26(3) whenever an application, such as an application for stay pending appeal, may be made either to the court below or to the Court of Appeal, it is required to be made first to the court below. In a written Ruling delivered on 17 September 2018 pursuant to an interim ex parte application, the learned High Court Judge refused to grant an interim ex parte stay. On the inter partes hearing for a stay the learned Judge affirmed orally on 24 September 2018 his earlier written Ruling.

[10] This is the renewed application for a stay pending appeal. Pursuant to section 20(1) of the Act a justice of appeal may grant a stay of execution pending appeal. The application was made by summons filed on 25 September 2018 and was supported by an affidavit sworn on 24 September 2018 by Rajendra Prasad. The application was opposed. An answering affidavit sworn on 2 November 2018 by Deo Sagayam was filed on behalf of the respondent. A reply affidavit sworn on 12 November 2018 by Rajendra Prasad was filed on behalf of the appellant. Both parties filed written submissions prior to the hearing. An interim stay pending the determination of the substantive stay application was granted on 26 October 2018.

[11] The matters that should be considered by this Court in an application for stay pending appeal were discussed in Natural Waters of Viti Ltd –v- Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 13; ABU 11 of 2004, 18 March 2005. It is of course not always necessary to consider all seven matters as their relevance will often depend upon the nature of the proceedings and the orders made by the Court below.

[12] It should be noted at the outset that this is not an appeal against a money judgment. Nor is it an appeal against a judgment concerning a commercial property upon which a business is being actively carried on. The dispute in this matter is between family members over state land that is or was the subject of a crown lease to Prasad or to his deceased father. The dispute is between Prasad as the executor of the estate of Prasad’s father and Deo Sagayam who occupied the property and is related through marriage to Prasad. The effect of the High Court decision is that Sagayam is entitled to continue to occupy the premises because Prasad could not establish an interest in the property that was sufficient to comply with the requirement in Order 113 of the High Court Rules. It is Prasad who has sought the stay which would appear to indicate that he had taken possession of the property pursuant to the Master’s orders. It must therefore be concluded that he is seeking the stay to enable him to remain in occupation pending the appeal. If a stay is granted then Prasad who claims to be the registered proprietor of the lease would be at liberty to sell or otherwise encumber the property in the meantime. If, however a stay is not granted then Sagayam would be entitled to resume occupation. It appears that Sagayam does not claim any interest in the lease, the status of which seems to be in some doubt.

[13] As was noted the document upon which Prasad relied was a typed approval letter from the Director of Lands that appears to have been issued on 15 February 1989. There is no named addressee. However it could only be that the letter of approval was addressed to someone other than Nokaiya who had died in 1980. It also follows that the application for a lease could not have been made by Nokaiya. The reference to an application for a lease in the letter from the Director of Lands must have been an application from someone other then Nokaiya. It is clear that the letter of approval to lease was issued well after the death of Nokaiya. Therefore whatever may be the nature of the interest created by the approval to lease letter that interest only arose well after the death of Nokaiya and could not form part of his estate at the date of his death. The endorsement at the bottom of the approval to l ease letter is questionable in view of the much earlier death of Nokaiya that occurred years before the letter was issued. In that letter there is a notation to the effect the approval of lease is subject to the surrender of CL 5303. CL 5303 was not in evidence before the High Court. It was not made clear to the Court how or whether CL 5303 was connected to the land the subject matter of the approval to lease.

[14] The approval letter was issued by the Director pursuant to a power given under Regulation 5 of the State Lands (Leases and Licences) Regulations 1980. It is clear from a reading of the Regulations that an approval to lease is not a lease, the prescribed form of which is found as form 1 in schedule 1 to the Regulations.

[15] As to whether a stay should be granted two of the 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. In my opinion the appeal will not be rendered nugatory if a stay is not granted. The respondent Sagayam will be entitled to occupy the property until the appeal is determined. The competing interests of the parties will be protected by an order that neither party shall attempt to alienate the property or encumber the title till the appeal is determined.

[16] Finally, by way of a preliminary assessment I have some doubts about the appeal in relation to the jurisdictional issue and on whether the appellant has an arguable case.

[17] For all the above reasons I am inclined to refuse a stay pending appeal. However I do propose to make an order that will restrain either party from dealing with the property pending the appeal.

[18] The respondent is entitled to costs in the sum of $1,800.00 to be paid within 28 days of the date of this Ruling.

Orders:

1. Application for stay pending appeal is refused.
2. The Appellant and the Respondent are restrained from in any way dealing with the property until the determination of the appeal.
3. The appellant is to pay costs to the respondent in the sum of $1,800.00 within 28 days from the date of this Ruling.
   

   ____________________________________
   Hon Mr Justice W. D. Calanchini
   PRESIDENT, COURT OF APPEAL