State v Central Agricultural Tribunal, Ex parte Reddy [1995] FJHC 145; Hbj0004j.1987s (18 September 1995)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 4 OF 1987

BETWEEN:

STATE

v.

CENTRAL AGRICULTURAL TRIBUNAL AND
VELIAMMA, VELIAMMA AND PON SAMI

EX-PARTE:

DHARAM LINGAM REDDY
s/o MUTTAP REDDY
of Tagi Tagi, Tavua, Cultivator

M.B. Patel on instructions from G.P. Shankar & Co for the Applicants (Original Respondents)
V. Mishra for the Respondent (Original Applicant)

Date of Hearing: 18th September 1995
Date of Judgment: 18th September 1995

JUDGMENT

On the 28th of March 1995 I granted the present Respondent (Original Applicant) Judicial Review of the decision of the Central Agricultural Tribunal dated 13th November 1986 pursuant to leave granted by Rooney J. on 11th February 1987. The relevant facts are set out in my judgment and I shall not repeat them.

On the 25th of July 1995 two persons Jai Krishna and Kumar Sami who are referred to in the Summons as "Respondent" applied for a stay of all further proceedings to enforce my judgment pending the hearing and determination of their appeal to the Fiji Court of Appeal.

On the 25th of July 1995 "the Respondents" filed an affidavit annexing a copy Notice of Appeal to the Court of Appeal in support of their application for a stay of execution.

On the 1st of September 1995 one of the "Respondents" filed another affidavit without any leave of this Court purporting to be in further support of their application for a stay. That affidavit also refers to some problems which Kumar Sami and his brother Jai Krishna had in the Court of Appeal concerning the lodging of security for appeal.

I have referred to them as "Respondents" deliberately because they were never parties to the original application for Judicial Review but now appear to claim the right to appeal to the Court of Appeal and the consequential right to a stay of my judgment on the alleged ground stated in paragraph 7 of Kumar Sami's affidavit that they are the undivided tenants of 24 acres of land which they have been jointly cultivating of which, apparently Jai Krishna claims 40 tons (presumably of sugar cane harvest).

In their first affidavit filed on the 25th of July the Respondents depose that they are the persons directly affected by my judgment "because the portion of the land claimed by Dharam Lingam Reddy has been transferred to me and I have planted sugar cane on it, ready for harvest this year and our cane moneys are also held up".

They also depose that Dharam Lingam Reddy has obtained an ex-parte injunction against them in the High Court of Lautoka which is said to have been listed for interpartes hearing on 21st July 1995.

I was informed by counsel that leave to issue committal proceedings has already been granted by the High Court in Lautoka on the alleged ground that Jai Krishna is in breach of the order made by Sadal J. on 19th May 1995.

The original Applicant, Dharam Lingam Reddy has filed an affidavit on the 22nd of August 1995 in which he deposes, so far as relevant to this application, that on the basis of my judgment, on the 22nd of June this year he obtained a cane contract from the Sugar Industry Tribunal and is now harvesting cane under that contract. He exhibits a copy letter from the Sugar Industry Tribunal dated 22nd June 1995 confirming this.

I have received written and oral submissions from the parties and I shall refer to these now.

For the Applicants many of the well known authorities on which stays of execution pending appeal can be granted are set out in Mr. Shankar's submissions of the 1st of September. Generally they state the law accurately. I shall only refer to them and the Applicants' submissions of the 1st of September briefly in order to correct certain statements which are clearly wrong and which if Mr. Shankar had read my judgment properly he must have known were wrong. In his first submission he says on page 2, "The High Court Suva in saying Dharma Lingam Reddy is entitled to vacant possession exceeded the limits set by case law". This is clearly untrue because a reference to the penultimate paragraph on page 11 of my judgment shows that nowhere did I say Dharma Lingam Reddy was entitled to vacant possession of the land in question.

This submission was repeated in the Applicants' submission filed today in paragraph 1 where it is said, "The hearing Judge in Judicial Review said the Applicant could recover vacant possession". To put the record straight I quote the relevant paragraph from my judgment:

"This is the position of the Applicant who is entitled to say that it is no concern of his innocent third parties may be adversely affected by the decision of the Agricultural Tribunal and by this Court's decision. I do not propose to make any orders for the eviction of the purchasers from the land because no application is before me."

It is to be regretted that counsel should quote inaccurately when attempting to use part of the Judgment to support his submission.

Then on page 8 of his first submission counsel for the Applicants claims that the Appellant (sic) will be injuriously and irreparably affected if a stay is not granted and that the Respondent will not be unduly prejudiced if a stay is granted.

In reply counsel for the Respondent first submits that this application is defective and should be dismissed immediately because it is made by persons who are not parties in this action. In my judgment that submission is patently true and for that reason alone I shall dismiss the application. However because of the mass of authorities referred to particularly by the present Applicants I shall now give other reasons for refusing the application for stay.

The first is as I have already mentioned that the Applicants through their counsel misquote what I said in my judgment. This shows that that the submission also has no basis in fact. Secondly there is no evidence before me that the Respondents to the original proceedings have suffered any irreparable harm. There is no affidavit from them as to this. The only harm which the present Applicants appear to claim is that they are the undivided tenants of the land in question. They have planted sugar cane on it which will be harvested this year and their cane moneys have been held up.

Even if this be true, and the mere assertion does not make it so, in my judgment if the Applicants have suffered any harm at all they have only themselves to thank for it. The fact which is not denied is that on the 11th of February 1987 Rooney J. when granting leave to the present Respondent for Judicial Review ordered "that all further actions or proceedings to implement the order or the decision of the Central Agricultural Tribunal be stayed".

If despite that order the Applicants have taken possession of the land in question then they must be assumed to have done so with full regard to the possible consequences.

On page 2 of the Applicants' submission of the 18th of September it is said, "The present holder of the lease is being deprived of fruits of his labour, cane proceeds, and standing crops".

The obvious answer to that submission if the facts alleged be true is that even more so the Respondent has been deprived of the fruits of his farm for more than 10 years and, if I grant the present Applicants, will be deprived of the fruits of his judgment which for all purposes at present must be deemed to be correct.

In my unreported judgment of 4th July 1991 in Civil Action No. 7 of 1990 Peter Ernest Jones and Another v. Maurice Leicester Chatfield and Others I said at page 2 that granting of the stay of execution pending an appeal is always a matter of the discretion of the Court and can be given either absolutely or such conditions as the Court thinks fit. I also said that there must be special circumstances which render it inexpedient to enforce the judgment before a stay will be granted.

According to the Applicants the exceptional circumstances in this case are that I allegedly said in my judgment that the Respondent could recover vacant possession of the land. I have already dealt with that ground.

The other exceptional circumstance is said to be that the Respondent obtained an injunction from this Court in Lautoka preventing the present holder of the lease from harvesting cane planted and grown by him. It is claimed the Applicant is not in a position to pay damages.

In my judgment in Peter Ernest Jones on pages 4 and 7 I referred to two decisions the first of the House of Lords in M V Yorke Motors (a firm) v Edwards (1982) 1 ALL E.R. 1024 and Rosengrens Ltd v Safe Deposit Centres Ltd (1984) 3 ALL E.R. 198.

These two decisions extended somewhat the case of Wilson v Church (No. 2) (1879) 12 Ch.D 458 at 459 where the Court of Appeal held that when a party is appealing, exercising his undoubted right of appeal, the Court ought to see that the appeal if successful is not nugatory. Over the years the law developed and frequently as a condition of granting a stay pending an appeal the Courts required the prospective Appellant to deposit some security pending the appeal.

Although M V Yorke Motors (a firm) v Edwards was a case about conditions being imposed as a price of leave to defend, the principles stated by Lord Diplock are nevertheless equally applicable to an application for stay.

I set out the relevant parts of Lord Diplock's judgment on page 5 of my judgment in Jones as follows:

"(i) Where a defendant seeks to avoid or limit a financial condition by reason of his own impecuniosity the onus is upon the defendant to put sufficient and proper evidence before the Court. He should make full and frank disclosure.

(ii) Not relevant.

(iii) A defendant cannot complain because a financial condition is difficult for him to fulfil. He can complain only when a financial condition is imposed which it is impossible for him to fulfil and that impossibility was known or should have been known to the Court by reason of the evidence."

In the later case of Rosengrens Ltd, Lord Donaldson M.R. endorsed Lord Diplock's remarks at page 199.

There is one further reason on which I must refuse leave and which is based on Wilson v Church namely that even if the Applicants are successful in the Court of Appeal there is no evidence to show that the present Respondent will not be able to re-transfer the contract back. As he is cultivating the farm it is at his own risk and there is nothing before me to show he would be unable to pay the Applicants damage they might prove to have suffered should they be successful in the Court of Appeal.

It seems to me the position is similar to that with which Pathik J. had to deal in Civil Action No. HBC0377 Tradewinds Marine Limited and Another v. Tevita Fa, unreported judgment of 20th October 1994. There the judge refused to grant a stay pending appeal by a Defendant mainly because he held that if the Defendant's appeal was successful the Plaintiffs would obviously have to give possession back to him of the premises which he was occupying under a sub-lease or compensate him.

There is no suggestion here that the Respondent is likely to sell his property, nor would I think this is likely considering the fact that he has only recently after a wait of 10 years been given a lease of the farm.

The Applicants make no offer to provide security for costs. I would be disposed to grant a stay pending their appeal if the proper Appellants lodged the sum of $30,000.00 as estimated net proceeds of 6 years of the cane in question but as I have said at the beginning of these reasons the application for stay is made by persons who are not parties to the original proceedings and no offer of any security has been made by the original Respondents.

In my judgment no valid reasons have been shown by the present Applicants as to why I should grant a stay of execution of my judgment against the original Respondents. I therefore dismiss the application and order the Applicants Kumar Sami and Jai Krishna to pay the Respondent Dharam Lingam Reddy his costs of $100.00 within 14 days. I also refuse a stay of execution of this judgment. It is normally my practice to append to my judgments a list of authorities cited in argument. In the present case copious authorities are mentioned by the Applicants all of which state the law correctly as far as I can gather but which for the reasons I have given I consider do not advance the Applicant's case in this application very far. I shall therefore only cite the authorities on which I have relied in my judgment, bearing in mind the nature of the application and what seems to me its very obvious deficiencies.

JOHN E. BYRNE
JUDGE

Authorities referred to in judgment:

Peter Ernest Jones and Another v. Maurice Leicester Chatfield and Others Civil Action No. 7 of 1990, unreported judgment of Byrne J. of 4th July 1991.
Civil Action No. HBC0377 Tradewinds Marine Limited and Another v. Tevita Fa, unreported judgment of Pathik J. dated 20th October 1994.
Rosengrens Ltd v. Safe Deposit Centres Ltd. (1984) 3 ALL E.R. 198.
Wilson v. Church (No. 2) (1879) 12 Ch.D 458.
M V Yorke Motors (a firm) v. Edwards (1982) 1 ALL E.R. 1024.

HBJ0004J.87S