Prasad v Prasad [1997] FJHC 30; Hbc0307d.96s (6 March 1997)

Fiji Islands - Vijay Prasad v Satish Prasad - Pacific Law Materials

IN THE COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 307 OF 1996

BETWEEN:

VIJAY PRASAD

s/o Ram Prasad

Plaintiff

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> AND:

SATISH PRASAD

s/o Ram Prasad

Defendant

Mr. H. Nagin for the Plaintiff/Respondent

Mr. S. Chandra for the Defendant/Applicant

DECISION

By motion dated 2 January 19e Applicant (Original Defendant) is applying to Court for a stay of execution pending appeaappeal to the Fiji Court of Appeal of an order to give up possession of a house (the "property") of which the Respondent (original Plaintiff) who is his brother is the "last registered proprietor". The order was made on 12 December 1996.

Background/p>

The Cour satisfied that the Plaintiff was entitled to vacant possession of the property. The circumircumstances in which he became owner on 17 January 1996 were that his mother who was the administratrix of the estate of his father transferred it to him. There were six beneficiaries in the estate including the Defendant.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Except for the Defendant all others had renounced their right title and int in the property whereuponeupon it was transferred to the Plaintiff. The defendant's share of the proceeds of the sale of the property which came to $16,000.00 is held in trust by Messrs. Sherani & Company for payment out to the defendant whenever he is ready to accept it.

The defendant has filed Notice to Appeal in the Fiji Court of Appeal setting out the grounds of appeal on which he intends to rely.

There are two affidavits before me. One is in support of the application and the other is an affidavit in Reply by the Plaintiff. Both counsel made submissions before me and Mr. Chandra had also passed on to Court a written submission as well.

The Law

It is the general rule that when a party exercises its undoubted right of appeal, the Court should ensure that the appeal if successful is not rendered nugatory. (See WILSON v CHURCH (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch. D. 454 at 458.).

It is well establish authority that the discretion to order a stay of proceedings is only to be exercised wherewhere special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal (vide The ANNOT LYLE [1886] UKLawRpPro 31; (1886) 11 P.D. 114 at p.116, SCARBOROUGH v LEW'S JUNCTION STORES PTY LTD [1963] VicRp 20; (1963) V.R. 129 at p.130). The test applied by ADAMS J in SCARBOROUGH (supra) at p.130 is "whether there is a real risk that the appeal would prove abortive if the applicant were not granted a stay".

Examples of situations wappeal could be rendered nugatory is stated by DAWSON J in THE COMMISSIONER OF TAOF TAXATION OF THE COMMONWEALTH OF AUSTRALIA AND THE MYER EMPORIUM LIMITED [1986] HCA 13; (1986) 160 CLR 220 at p.223 as follows:

"Generally that will occur when, because of the respondefinancial state, there is no reasonable prospect of recovercovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandland [No.2] [1918] HCA 59; (1918) 25 C.L.R. 369 at p. 375."

Consideration of the issue

I have given careful consideration to the matters before me.

The deft is in the property and for the reasons he gave and because of the appeal against the pres present order and because of the Civil Action No. 348 of 1995 pending in the High Court he refuses to give up possession. Whereas the Plaintiff insists on possession to enjoy the fruits of the judgment in his favour.

The plaintiff and defendant are brothers and it has come out in evidence that thee been at loggerheads for sfor sometime and the Plaintiff had found it impossible to live in the same house on the property. Now it is stated by the defendant in his affidavit that "I have no objection whatsoever if he occupies the upstairs flat to mitigate his losses". In these circumstances I cannot see why the Plaintiff cannot move into the premises for after all the parties lived there together prior to the Plaintiff leaving the property.

A similar situation as in this case arose in GUTNIERAN f/n Bhawani Samuel Sharan and DAL RAM f/n Jai Ram (/u> (C.A. No. 272 of 1980 Western Division) where DYKE J said:

"If the aant is now obliged to vacate the premises, would he be able to return to them should his apis appeal be successful? I think it might prove to be very difficult, if not impossible. In the circumstances I will grant the stay of execution asked for."

I am of the same view and I adopt the above passage in this case. That, in my view, is a sufficiently exceptional circumstance to justify my granting the stay sought. It will be difficult for the defendant in this case to be restored to his former position if the judgment against him is executed. The principle that evolves out of the cases that I have cited is that the applicant must show special or exceptional circumstances before a stay will be granted.

Conclusion

For the reasons given in the exercise ofiscretion there will be a stay upon the execution of the juhe judgment in this matter dated 12 December 1996 until the hearing and determination of the appeal or further order of this Court. I therefore Order as follows:-

(a) There be stay ocution of the order of 12 December 1996 for vacant possessisession until the hearing and determination of the appeal or further order of this Court.

(b) The Plaintiff be allowed to move onto the property and reside in thtairs portion of the house ouse without any interference from the defendant; but should there be any interference one with the other each party shall be at liberty to apply for directions.

(c) The defendant to undertake ke all reasonable steps to execute the appeal with diligencigence and expedition.

(d) The dent is ordered to pay the costs of this application to the Plaintiff which is to be taxed uned unless agreed.

D. Pathik

Judge

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> At Suva

6 March 1997

Hbc0307d.96s