Lal v Sami [1995] FJHC 100; Hbc0495d.93s (1 June 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 495 OF 1993

Between:

SURUJ LAL
s/o Ram Sewak
Plaintiff

- and -

CHIN SAMI
s/o Mahadeo
Defendant

Mr. H.M. Patel for the Plaintiff
Mr. D. Sharma for the Defendant

DECISION

This Summons dated 30 March 1995 by the Plaintiff (hereafter referred to as the "applicant") is for an order for stay of execution pending an appeal to the Fiji Court of Appeal of judgment delivered by this court on 27 March 1995 when it dismissed the applicant's claim for specific performance and damages and ordered inter alia that he give vacant possession to the defendant (hereafter referred to as the "Respondent") of portion of the property in question which is occupied by him.

The applicant relies upon the Affidavit sworn by him on 31 March 1995 in support. The respondent replied to the said affidavit followed by a reply by the applicant.

Both counsel argued the matter before me on 26 April 1995 but because there were indications of settlement being discussed consideration of this application was put aside. The Grounds of Appeal have been filed and the applicant is now proceeding with his Appeal.

I have considered the contents of the affidavits filed herein and submissions of counsel.

Mr. Patel makes the point, inter alia, that the applicant has been on the said property for sometime now and if he is 'pushed out' he will have to be 'brought back' if he succeeds in his appeal. He said that the applicant was a lawful tenant until April 1993 (the time of execution of transfer) and that he has paid rent until then. He asks that the status quo remain as "irreparable" damage would be done to him otherwise and that it is only a matter of three months when the Appeal would be heard.

The Respondent on the other hand has filed lengthy affidavits with a lot of irrelevant material in so far as the issue before me is concerned.

The Respondent says, inter alia, that, since the judgment is in his favour he should not be deprived of the fruits of the litigation; that he has not had the benefit of the rent collected by the applicant over the period in question and that the applicant himself has not paid any rent in respect of the premises occupied by him since April 1993. He says that the applicant continues to collect rent and is living there free of rent when he is not even the registered proprietor. The applicant is concerned that the property is at risk without him having any control over its supervision and maintenance.

Mr. Sharma has made a comprehensive legal submission both orally and in writing and I have found it to be of great assistance.

The principles governing the grant of stay of execution pending appeal are well set out in the notes to Or 59/13/1 (THE SUPREME COURT PRACTICE 1979 p.909). It states that "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 on appeal (THE ANNOT LYLE (1886) 11 P.D at p.116, C.A., MONK v BARTRAM [1891] UKLawRpKQB 15; (1891) 1 Q.B. 346)".

In MONK v BARTRAM (supra) it was held:

"Where a stay of execution has been refused by the judge at the trial, an application made to the Court of Appeal for a stay pending an appeal must be supported by special circumstances, and allegations that there has been misdirection, that the verdict or judgment was against the weight of evidence, or that there was no evidence to support the verdict or judgment, are not special circumstances on which the Court will grant the application."

I find that no special circumstances have been brought forward in this case and I have already stated hereabove what the applicant's grounds are. The fact that the applicant has been living on the property is no 'special circumstance'. In fact the Respondent has suffered more by being deprived of his property and not being able to benefit from rent for so long and at the same time having no guarantee that his property will be protected in the present situation. The applicant says that he will suffer irreparable damage if stay is refused, but there is no evidence of any damage having been suffered or to be suffered by him in this case. If anything he has gained by being in occupation and possession of the property.

There is one other point which is to be considered in an application of this nature, and that is that "where a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory" (THE SUPREME COURT PRACTICE ibid p.909; WILSON v CHURCH (NO. 2)(1879), 12 Ch.D. at pp. 458-459, C.A.). In this case there is no possibility of that happening. If the appeal is successful the Respondent will obviously have to give possession back to the applicant or compensate him (per DYKE J in KHAIRUL NISHA d/o Changa Mia & MOHAMMED ALIM KHAN & MOHAMMED AQIB KHAN and BA MEAT COMPANY (C.A. 114/80 Sup. Ct. Lautoka, cyclostyled judgment p.2).

This is not a case where the applicant will be "ruined" or the basis of the appeal is destroyed if stay was refused. It was held in LINOTYPE-HELL FINANCE LTD v BAKER (1992), 4 AER p. 887 that:

"Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success."

In his grounds of appeal the applicant has raised a point of law and that is a matter for the appeal court and not for me to comment upon in this application. However, in ATKINS v THE GREAT WESTERN RAILWAY COMPANY 1885-86 Vol 2 TLR, LORD ESHER, M.R. said:

"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."

The Court has an absolute and unfettered discretion as to the granting or refusing of a stay. LORD ESHER, M.R. in THE ATTORNEY-GENERAL v EMERSON and others 1890 24 QBD C.A. p.56 at 58 said:

"... the Court has a discretion in each case. ... I feel certain that this Court has over and over again refused to say there was any established practice, but has said that it would exercise its discretion in each case."

Similarly LINDLEY, L.J (ibid p.59) said:

"It is not competent for any Court or judge to lay down a rule which shall limit the exercise of that discretion."

In all the circumstances of this case in exercising its discretion the Court does a balancing exercise. On the one hand there is the Respondent who is the registered proprietor of the property which is inadequately protected and at the same time he is a successful defendant fully entitled to the fruits of his victory and on the other hand there is the unsuccessful Plaintiff reaping all the benefits derived from rent and living there free of rent himself hoping that he will be successful in his appeal.

I must say that the Respondent (registered proprietor) has greater interest in the property than the applicant as he is the registered proprietor. Although it is alleged that possession was given to him before or at the time of the execution of transfer document it is a disputed fact. In normal conveyancing practice 'settlement' of a transaction is effected when there is payment of purchase price etc and it is then that possession is given to the purchaser.

In fact the applicant has not satisfied me that he has the right to possession despite the execution of transfer for the reasons given in my said judgment.

Therefore in the exercise of court's discretion I have to consider all the factors that are necessary to meet the ends of justice and the interest of parties. The scale tips in favour of the Respondent and his interest needs greater protection than that of the applicant as he would suffer greater prejudice if stay was granted unconditionally.

I consider that the justice of this case will be met by the grant of stay on terms. I will put the applicant on terms as follows and I so order:

(a) that he EITHER vacates the portion of the said property occupied by him immediately OR as from 1 June 1995 he shall pay in advance the next six months' rent to the Respondent or his agent the amount of money which he was paying the Respondent as rent in respect of the premises occupied by him before the execution of the said transfer document until the hearing and determination of this appeal within 14 days from the date of this decision AND if the appeal is not determined within the said six months the applicant shall continue to pay rent in the said sum monthly in advance at the beginning of each and every month commencing from 1 December 1995 until the appeal is disposed; and

(b) that as from 1 June 1995 either the Respondent or his agent shall be entitled to collect rent from the tenants occupying the various flats; and

(c) that applicant shall have the question in the appeal, so far as in him has, decided at the earliest possible opportunity by the Fiji Court of Appeal; and

(d) that the applicant must pay the costs of this application to the Respondent to be taxed if not agreed.

D. Pathik
Judge

At Suva
1 June 1995

HBC0495D.93S