NBF Asset Management Bank v Niumataiwalu [2001] FJHC 262; HBC0427D.1998S (26 February 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 0427 OF 1998

BETWEEN:

NBF ASSET MANAGEMENT BANK
Plaintiff/Respondent

AND:

GEORGE NIUMATAIWALU; and
IAN NG
Defendants/Applicants

Counsel: Mr H. Nagin for Applicants
:Mr T. Seeto for Respondent

Hearing: 30th January 2001
Decision :26th February 2001

DECISION

On 24th January 2000, I ordered vacant possession of property at 116 Mead road, Suva pursuant to an application made by the Respondent, the NBF Asset Management Bank under Order 88 of the High Court Rules.

Writ of possession in respect of the premises, was issued on the 23rd of February 2000. On the 22nd of February 2000 the Appellant filed a Notice of Appeal in respect of the Order 88 judgment, and an application for stay pending appeal on the following day. This is the decision in respect of that application.

The application is supported by the affidavit of George Niumataiwalu, (the First Appellant). In that affidavit, the First Appellant says that he has been advised by his solicitors that he had good prospects of success on appeal, that he intended to purchase the property in question, and that the appeal would be rendered nugatory if stay was not granted in the matter.

The Respondent opposed the application and filed the affidavit of Laisenia Takala, sworn on the 3rd of March 2000. In that affidavit, Laisenia Takala disputes the assertion that there is merit in the appeal, says that the Appellant had ample opportunity to purchase the property but cannot do so now because the property has been sold, and that the appeal would not be rendered nugatory.

Thereafter several hearing dates were vacated because of the uncertain times Fiji was experiencing, and the matter was finally heard in chambers on 30th January 2001.

Counsel relied on written submissions. The main ground of the application is that the appeal will be rendered nugatory, if a stay is not granted. Counsel says that the First Appellant still intends to purchase the property at a price higher than that offered by Mr Tariq Ali, the intended purchaser. He says that the balance of convenience favours the Appellant.

Counsel for the Respondent says that the appeal has no merit and that the Appellant is merely re-ventilating the issues he raised at the hearing. He says that the appeal being bound to fail, that the question of whether or not it would be rendered nugatory if a stay is not granted, is irrelevant. Alternatively, counsel suggests that if a stay is granted, it should be conditional upon the payment of the debt amount into court, and upon the payment of the costs of the application.

Principles

The principles governing the grant or refusal of a stay application pending appeal, are well-settled. The first principle is that a successful litigant should not be lightly deprived of the “fruits” of his litigation. The second is that when an appellant exercises its right of appeal, the court should ensure that the appeal if successful is not rendered nugatory. The third principle is that in the exercise of its discretion, the Court should consider the effect that a stay, or a refusal of stay, would have on each party. A further principle was used in Linotype-Hell Finance Limited -v- Baker (1992) 4 ALL ER 881, that where an applicant shows that it will be ruined, if stay is refused, and that it has good chances of succeeding on appeal, a stay should be granted.

There is no dispute that these are the relevant principles governing a stay application.

The Application

There is no doubt that the Appellant has an unrestricted right of appeal. Although the grounds of appeal, (save for the ground on the acceptance of affidavits before Judgment was delivered) are in effect a re-canvassing of submissions made to me at first instance, I will assume for the purpose of this application, that this appeal is not devoid of merits.

Would a refusal of stay therefore render the appeal nugatory? The appeal is against an order for vacant possession. The Appellant currently lives on the property in question, and has done so for the duration of the proceedings. There can be no doubt that if the Appellant is forced to vacate, the Respondent will then proceed to perfect the sale of the property to Mr Tariq
Ali, and that thereafter any remedy the Appellant might have, would be confined to damages.

The Appellant says that his offer to purchase the property should have been accepted. This presupposes his ability to pay for the property. However, the prejudice to the Respondent if stay is granted is obvious. The Respondent has agreed to sell the property to Mr Ali. Not only is the Respondent deprived of the chance to perfect the sale, it is also deprived of the sum of money owed to it by the Appellant under the mortgage. At the hearing of the Order 88 application in this court, the Appellant owed the Respondent $126,567.58 under the mortgage. Any order for stay must therefore address the issue of protecting the Respondent’s interests.

On the ground therefore, that the appeal will be rendered nugatory, if stay is refused, I order stay of my judgment of 24th January 2000. I do so on condition that the Appellant deposits the sum of its debt to the Respondent, of $126,567.58 into court within 14 days.

Costs are in the cause.

Nazhat Shameem
JUDGE

At Suva
26th February 2001