National Bank of Fiji v Hussein [1995] FJHC 70; Hbc0331d.94s (13 April 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0331 OF 1994

Between:

NATIONAL BANK OF FIJI
Plaintiff

- and -

ABDUL KADEER KUDDUS HUSSEIN
s/o Kadir Hussein
Defendant

Mr. S. Parshotam for Plaintiff
Defendant in Person

RULING

On the 9th of February 1995 this Court in a 'mortgage action' ordered the defendant to deliver to the plaintiff bank on or before 6th March, vacant possession of a residential property which was the subject matter of the plaintiff bank's mortgage and then occupied by the defendant.

On the 27th of February the defendant lodged a Notice of Appeal against the above order and subsequently on the 1st of March the defendant filed the present application seeking an order:

"... that all proceedings in the action be stayed until the final determination of Appeal No. ABU0012 of 1995."

The application was heard on the 15th of March. The defendant who has appeared in person throughout the proceedings, referred to the 'grounds of appeal' and submitted that he was not given a 'fair trial', by which, he meant, that the Court ought to have dismissed the plaintiff bank's 'mortgage action'. The effect the defendant says, of refusing a stay would be that he would lose his 'family home' and thereby render nugatory any successful appeal.

In opposing the application for a stay, counsel for the plaintiff bank referred to the many months that have elapsed since the 'mortgage action' was first commenced in July 1994 and the continuing absence of any tender of payment or any offer by the defendant/mortgagor to redeem the plaintiff bank's mortgage over the property. In counsel's words: "... staying proceedings would simply defer the inevitable".

As for the loss of his 'family home' counsel replied that that was a calculated 'risk' the defendant knowingly and voluntarily undertook when he agreed to mortgage it to the plaintiff bank.

The Fiji Court of Appeal in K.R. Latchan Bros. Ltd. v. Sunbeam Transport and 2 Others Civil Appeal Nos. 45, 51, 57 & 61 of 1983 (unreported) in discussing the general principles concerning stay pending appeal, referred to Rule 25 of the Court of Appeal Rules which is in identical terms to Order 59 rule 13 of the Supreme Court Rules in England and said at p.8:

"All the cases annotated under Order 59/13, and indeed the wording of (Rule 25) contemplate delaying some action which would have flowed from the decision. Stay of such action may be granted pending an appeal so that, if successful, the result should not be rendered nugatory. In the absence of a stay, money may be paid over, which given a reversal on appeal might be irrecoverable; An occupier of land might be dispossessed and buildings demolished; accounts might be taken which need not be revealed; the holder of patent or the proprietor of a secret process might be required to submit to inspection and so on. All these are positive steps which are encompassed by the words 'execution or proceeding' flowing as a consequence of a judgment ..."

In my view the principle to be applied in the exercise of the Court's discretion to grant a stay is one of balancing all the factors involved so as to best meet the overall justice of the case and in fairness to all parties. The factors to be considered includes - the nature and strength of the applicant's claim or appeal; the likely delay in hearing the appeal; the extent of prejudice to the successful party in being denied the fruits of its judgment; the risk of prejudice to the applicant should the appeal be successful; and the conduct of the parties before and after judgment was delivered.

In this latter regard the defendant I am satisfied has moved speedily in seeking a stay. His delay in not bringing a so-called 'related' Civil Action No. 97/92 to a final conclusion has not however been satisfactorily explained. I say 'so-called' because although numerous references were made to Civil Action 97/92, no application to consolidate it with the present action was ever made, nor were the relevant papers filed in Civil Action 97/92 placed before the Court by way of annexures to the defendant's affidavit opposing the plaintiff bank's originating summons.

In the result this Court has had to rely solely on the parties to inform it as to the nature of the defendant's claim(s) in Civil Action 97/92 upon which there has been little certainty or unanimity.

As for the 'extent of prejudice' to the plaintiff bank in whose favour an injunction and an order for vacant possession has been made, learned counsel submits that the arrears and interest on the defendant's mortgage debt (which cannot be seriously disputed) continues to mount daily to the detriment of all parties including the successful tenderer for the defendant's property.

Against this must be balanced however the 'risk of prejudice' to the defendant, should he succeed in his appeal, of not only being temporarily dispossessed of his family home but, in the particular circumstances of this case, there is the very real possibility that the property will be irrecoverably lost.

Indeed it is difficult to envisage a case which comes closer to the headnote of Linotype - Hell Finance Ltd. v. Baker (1992) 4 ALL E.R. 887 where it was

"held: when 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."

I confess that this factor has weighed heavily with the Court and finally persuaded me that the ends of justice will be best met by ordering a stay of proceedings pending the determination of the defendant's appeal.

(D.V. Fatiaki)
JUDGE

At Suva,
13th April, 1995.

HBC0331D.94S