Singh v Singh [2019] FJCA 165; ABU 49 of 2018 (16 August 2019)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI
CIVIL APPEAL NO. ABU 49 OF 2018
(High Court HBC 261 of 2006)

BETWEEN:

PYARA SINGH
Appellant

AND:

RANJIT SINGH
Respondent

Coram : Calanchini P

Counsel: Ms L Prasad for the Appellant

Mr A K Narayan for the Respondent

Date of Hearing: 9 July 2019
Date of Ruling : 16 August 2019

RULING

[1] This is a renewed application for stay pending appeal. On 7 May 2018 the High Court at Lautoka delivered judgment in favour of the respondent (Ranjit Singh) for the amount of FJ$678,389.16 together with interest at 13% per annum from 6 May 2015 to the 7 May 2018 (date of judgment). Costs were awarded to the respondent on the solicitor and client (indemnity) basis to be assessed by the Master in the event that the parties could not agree.

[2] The appellant and the respondent are biological brothers and both are now what may be described as elderly. In November 1974 the respondent (Ranjit) appointed Pyara to be his Power of Attorney. The respondent was the owner of a residential property in Lautoka. In February 1997 pursuant to the respondent’s request the appellant sold the property for the sum of $84,000.00. The respondent had by this time moved to Canada to reside. When the respondent asked for the funds, the appellant failed to pay the money to the respondent.

[3] The dispute between the parties was compounded by another transaction that involved the appellant selling shares owned by the respondent in a company called Lautoka General Transport Company Limited (the company). The parties subsequently signed three acknowledgment of debt agreements in 1997, 2001 and 2002 respectively, none of which was honoured by the appellant. Further reference to these agreements will be made later in this Ruling.

[4] On account of the appellant’s default the respondent commenced proceedings by writ in the High Court at Lautoka on 29 August 2006. On 12 May 2015 the respondent, with the leave of the Court, filed an amended statement of claim seeking recovery of $678,389.16. At the hearing of the renewed application for stay it appeared to be submitted by Counsel for the respondent that this amount was calculated on the admitted amount owing as at 2 July 2002 being $156,508.39 (inclusive of interest at 13.5% up to that date) and continuing from that date at the rate of 13% per annum.

[5] The trial was conducted over a two day period being 30 and 31 October 2017. Although there was an issue concerning the absence of the appellant due to illness on the second day and the refusal of the trial Judge to grant an adjournment, it does seem to me that the real issue between the parties is to be determined by reference to the undisputed signed agreements (acknowledgments of debt) and the undisputed facts.

[6] The learned Judge in his judgment based his findings on the contents of the documentary evidence adduced by the respondent and not disputed by Counsel for the appellant together with agreed facts.

[7] Being dissatisfied with the judgment the appellant filed and served a timely notice of appeal. The grounds of appeal raise issues concerning the failure to grant an adjournment at the request of the appellant due to illness and the method of calculating the amount owing (if any) to the respondent. Being an appeal against the final judgment of the High Court this was an appeal under section 12(1) of the Court of Appeal Act 1949 (the Act).

[8] 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 the present application for stay pending appeal, may be made either to the court below or to the Court of Appeal (i.e. where there is concurrent jurisdiction), it is required to be made first to the court below.

[9] It would appear that on 24 September 2018 the appellant filed in the High Court an application for stay that was heard inter partes on 22 November 2018. In an ex tempore ruling on the same day the High Court refused the stay and awarded costs of $600.00 to the respondent. A written Ruling has not been delivered.

[10] As noted this is the appellant’s renewed application for 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 27 November 2018 and was supported by an affidavit sworn on 27 November 2018 by Pyara Singh. The application was opposed. An answering affidavit sworn on 6 December 2018 by Ranjit Singh was filed on behalf of the respondent. A reply affidavit was sworn on 19 December 2018 by Pyara Singh. Both parties filed written submissions prior to the hearing. On 12 December 2018 an interim stay pending the determination of the substantive stay application was granted on condition that the appellant pay into court the sum of $942,960.93 by 27 December 2018. That condition was satisfied on 21 December 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. A stay should not be granted unless the Court is satisfied that there are good reasons for doing so. Whether there are good reasons established will be determined by reference to the principles set out by this Court in the Natural Waters of Fiji decision (supra)

[12] At the outset it should be noted that this is an appeal against a money judgment. Generally a successful litigant should not be deprived of the fruits of successful litigation by withholding funds to which he is otherwise entitled, pending an appeal. The dispute in this matter is between two brothers over the funds realized from the sale of the respondent’s property together with accumulated interest. There is another action involving the parties where the dispute is related to the proceeds derived from the sale of the respondent’s shares by the appellant. Given that the appellant does not dispute the existence of the three agreements relating to the acknowledgment of the debt and given that it is not disputed that the respondent’s residence in Lautoka was sold for $84,000.00 in February 1997 by the appellant, this appeal is essentially concerned with the quantum of the judgment amount.

[13] The three agreements evidencing the acknowledgment of the debt deal with both the amount owed by the appellant for the sale of the respondent’s residence and the amount owed by the appellant in respect of the sale of the respondent’s shares. The present proceedings are concerned with the respondent’s claim for the capital and interest in respect of the sale of the respondent’s residential property in 1997.

[14] It must be noted that neither party had exhibited any of the agreements acknowledging the debt and nor was there any document submitted to show how interest had been calculated.

[15] At page 8 of his judgment the trial Judge has noted the evidence showed in the third acknowledgment of debt agreement dated 2 July 2002 that the balance (including interest of 13.5%) in relation to the sale of the residential property was $156,508.39. In this agreement interest was to run at 13% until payment. Since payment had not been made by the appellant the amount owing as at 12 May 2015 was $678,389.16. It was accepted by the Court that the amount includes interest at 13% from July 2002 up till May 2015. On the basis that interest was calculated on an annual basis there is no reason for concluding that the figure was not accurate. Certainly Counsel for the appellant was not in position to challenge the assertion that the total accurately reflected the principle plus interest.

[16] The learned trial Judge awarded interest on the judgment sum for the period from 6 May 2015 up to 7 May 2018. This he was entitled to do pursuant to section 3(b) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act 1935 (the Law Reform Act) which provides that nothing in the section applies in relation to a debt upon which interest is payable as of right by virtue of any agreement.

[17] However section 4 of the Law Reform Act is concerned with post-judgment interest and appears to be expressed in mandatory terms as a statutory entitlement. Post-judgment interest is fixed at 4% per annum on every judgment debt. There is no provision in section 4 similar to the provision in section 3 that excludes from the operation of the section a debt upon which a higher interest in payable as a right under any agreement.

[18] The amount paid into Court as a condition of the interim stay was $942,960.93. It was not made clear to the Court whether the amount of $264,571.77 (being the difference between the amount paid into Court and the amount of the judgment being $678,389.16 was a combination of pre judgment and post judgment interest and if so at what rate was post judgment interest calculated.

[19] As for the claim that the amount of $100,000.00 paid by the appellant to the respondent was in part payment of this debt, the learned trial Judge accepted the respondent’s evidence that the sum was paid as part payment of the debt claimed for the sale of shares. It is unlikely, on the state of the evidence, that the Court of Appeal would be in a position to reach a different conclusion.

[20] In my view the grounds of appeal that relate to the refusal to grant an adjournment to the appellant on day two of the trial on account of illness do not constitute a good reason for granting a stay of execution.

[21] In view of the observations set out above I do not consider that it is necessary to assess the relative merits of the matters that are usually considered in a stay application such as the present in accordance with the decision in Natural Waters of Fiji decision (supra).

[22] In conclusion the appellant has not put forward any convincing reason why a stay of execution pending appeal should be granted in respect of the judgment debt. Therefore the stay pending appeal in respect of the judgment amount is refused and the amount of $678,389.16 is to be paid out to the respondent. The balance of approximately $264,571.00 is to remain in court pending the determination of the appeal.

Orders:

1). Application for stay pending appeal is refused other than for the amount of $264,571.77 which is to remain in court.

2). The Registrar is directed to release the sum of $678,389.16 to the respondent.

3). The appellant is ordered to pay the costs of his application fixed in the amount of $2,000.00 to the respondent within 28 days from the date of this Ruling.

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