Bibi v Raza [1993] FJHC 37; Hbc0109d.89s (13 April 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 109 OF 1989
(Civil Appeal No. 14 of 1993)

Between:

AIEJA BIBI
d/o Nasir Mohammed
Plaintiff/Respondent

- and -

1. HASAN RAZA
s/o Nur Mohammed
1st Defendant/Applicant
2. WESTPAC BANKING CORPORATION
2nd Defendant

Mr. V. Maharaj for the Plaintiff
Mr. R. Gopal for the Applicant

RULING

On the 15th of February this Court delivered a judgment in the above referenced Civil Action directing the sale of a matrimonial home.

On the 19th of February the Judgment of the Court was entered and sealed by Counsel for the plaintiff (respondent) and on the 30th of March this present application for a stay of execution of the above-mentioned judgment was sought by the defendant (applicant) pending the hearing and determination of an appeal which was lodged by the defendant on the 26th of March 1993.

In support of his application the defendant filed an affidavit annexing a stamped copy of his 'Notice of Appeal' and in which he deposed:

"3. THAT if the matrimonial home were sold, it would be impossible to undo the sale if I won the appeal."

I note however that neither 'ground of appeal' challenges the Court's order to sell the matrimonial home rather complaint was made as to other properties claimed to be matrimonial property and the respective shares of the parties therein and the courts failure to consider the same in its determination of the respective shares of the parties in the matrimonial home.

Learned counsel for the plaintiff (respondent) also complains that owing to the tardiness of the defendant's present application the plaintiff has already incurred the expenses of acquiring the services of a registered valuer.

Whilst I accept that unreasonable delay is a relevant factor for the consideration of the Court, in the particular circumstances of this present application such delay as occurred (being within the time period allowed for an appeal to be lodged) cannot be considered either unreasonable or inordinate.

The principles that guide the Court in an exercise of its unfettered discretion on this application are well established and need not be dealt with at length.

Suffice it to say that between the opposing interests, of a successful party to litigation and a potentially successful appellant exercising an undoubted right of appeal, lies a wide discretion to be exercised by the Court having particular regard to relevant factors such as the likelihood of success of the appeal, the nature of the order appealed against, the length of any delay in making the application and the stage at which any execution of the judgment may have reached (if any), to name but a few.

In this latter regard having regard to the various 'executory' directions given in the Court's judgment I am satisfied that execution has not progressed to such an extent as to involve any third party.

Furthermore although learned counsel for the plaintiff submits that the defendant's share of the proceeds is in no way endangered by the sale of the matrimonial home there can be no doubting the serious inconvenience and prejudice such a sale would cause to the defendant personally having regard to the fact that he presently occupies it as his home.

I am finally convinced having regard to our Torrens System of land titles that the balance lies in favour of an order which will not render nugatory the results of a successful appeal.

Accordingly in the exercise of the Court's discretion in the matter I grant the defendant's application and order that any further execution of the Court's judgment dated 15th February 1993 be stayed pending the hearing and determination of the defendant's appeal.

(D.V. Fatiaki)
JUDGE

At Suva,
13th April, 1993.

HBC0109D.89S