Bhaskar v Khan [2003] FJHC 264; HBC0043j.2002b (27 October 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0043 OF 2002

Between:

SADHULAL BHASKAR
s/o Halka
Plaintiff

and

MOHAMMED JAFFAR KHAN
s/o Akbar Khan
Defendant

Mr. V. P. Ram for the Plaintiff
Mr. A. Sen for the Defendant

JUDGMENT

By summons dated 17 September 2003, Mohammed Jaffar Khan s/o Akbar Khan the defendant in this Civil Action No. 43/02 makes an application that the ‘Orders made in this action on 28^th day of August 2003 be stayed until the full determination of appeal to Fiji Court of Appeal upon the grounds contained in the affidavits’ of the defendant filed in support of this summons.

The Court has before it for its consideration the affidavit in support of the defendant himself, the affidavit in reply thereto by Salendra Kumar, law clerk and a reply thereto by Vineel Raj another law clerk. Bulk of what these two clerks say are matters of law for Appeal Court’s consideration. They should be raised there and it is no use telling me for I have already given my judgment. The defendant has, however, raised certain points as his reason for a stay particularly as advised by his counsel that there is a point of law for decision by the appeal Court. He says that he will suffer damage as he has a lot of improvements on the land.

On 27 August 2003 I delivered a single judgment at High Court at Labasa in three civil actions being Civil Action Nos. 43, 44 & 45 in which Sadhulal Bhaskar was plaintiff in these actions but the defendants were different. The defendant in action No. 43 of 2003 is the applicant in the summons before me.

I ordered that the ‘defendant or anyone else in occupation of the land in each of the said actions give immediate vacant possession of the lands in question with execution stayed for two months. Each defendant is to pay costs to the plaintiff’s solicitor in the sum of $400.00.’

Consideration of the application

As ordered, both counsel made written submissions and I have given these due consideration.

Grounds of Appeal

1. The Learned Judge erred in Law and in fact in failing to consider if the deponent namely Sujaindra Bhashkar was the lawful attorney entitled to bring the proceedings for eviction against the appellant.
   
2. The Learned Judge erred in law and in fact by ordering the appellant to give vacant possession of the land in issue when he had shown sufficient cause that he was entitled for continued tenancy.
   
3. The Learned Judge erred in Law and in fact by ordering the appellant to give vacant possession of the land when there were triable issues pending between the plaintiff and the defendant in Labasa High Court Civil Action No. 48 of 2001.
   
4. The Learned Judge erred in Law and in fact by ordering the appellant to give vacant possession of the land when there were complicated issues of fact in particular whether the appellant was entitled for an extension or renewal of his tenancy and/or whether the tenancy offered to him on 1986 complied with the provisions of Agricultural Landlords and Tenants Act namely section 6(b).
   

The law

The gist of the ground for appeal is contained in grounds (3) and (4) to the effect that there are triable issues hence no order for possession should have been made. As for the first two grounds my judgment speaks for itself as being without merit. I still find that no concrete grounds have been put forward for a stay.

I shall now consider the issue before me.

It is entirely a discretionary matter for the court whether to grant a stay or not. There are, however, two important matters which a Court would consider. Firstly, the Court does not “make a practice of depriving a successful litigant of the fruits of his litigation, ...pending an appeal” (The Annot Lyle (1886) 11 P.D. at p.116, C.A.). Secondly, that “when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal if successful, is not nugatory” (Wilson v Church (No.2) (1879) 12 Ch.D. at pp. 458, 459 C.A.).

On ‘stay’ in Halsbury’s Laws of England Vol. 17 4^th Ed. at page 455 it is stated:

“The Court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to in affidavit unless the application is made at the hearing.

(emphasis mine)

I do not find any special circumstances in this case. This was a proper case for the application of s169 of the Land Transfer Act.

Further on ‘stay of proceedings’ it is stated in Wilson (supra) at p.454:

“Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in ordinary cases to make such order for staying proceedings under the judgment appealed from as will prevent the appeal, if successful, from being nugatory. But the Court will not interfere if the appeal appears not to be bona fide, or there are other sufficient exceptional circumstances ...” (underlining mine)

Again, on ‘stay of execution’ pending appeal in Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887 C.A. 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”.

(emphasis mine)

On the affidavit evidence before me I am not satisfied with the grounds of appeal to enable me to exercise my discretion in the defendant’s favour.

This appeal merely concerns the defendant/appellant and not the other defendants in the other two actions. There are no particulars of the extent to which the defendant will suffer, if at all, if evicted and is successful on appeal. There are no facts and figures in this regard. Surely the defendant knew that some day his lease/tenancy will expire and he should have made provision accordingly in such an eventuality. He has been living on the land for some years now without paying a single cent. Why should the plaintiff suffer? After all he is the registered proprietor compared to the defendant who is a trespasser. If the defendant has any claim that can be determined in the pending action but there is no indication when that action will be heard.

Because some inconvenience will be caused to the defendant in giving possession, it is no concern of the plaintiff and that does not entitle him to remain in possession. He knew of his position and had ample time to vacate. Even in my judgment herein I have stayed execution for two months which will expire on 27 October 2003. There is no question of the defendant being ‘ruined’ if stay is refused or that the outcome of a successful appeal will be rendered ‘nugatory’. I would like to refer to Dyke J’s statement on this aspect in Kairul Nisha d/o Changa Mia and Mohammed Alim Khan & Mohammed Aqib Khan v Ba Meat Company (Action No. 114/88 Western Division, cyclostyled judgment page 2) while refusing a similar application said that “if the defendant’s appeal is successful the plaintiff will obviously have to give possession back to the defendant, or compensate him”. I agree with the learned Judge in this regard.

To conclude, in this case as stated by Barton J in McBride v Sandland
25 C.L.R (1918) 369 at 374:

“The ordinary principle is that a successful party is entitled to the fruits of his judgment. That being so, there must be sound reasons sufficient to justify the Court in suspending his right. It is not a sufficient ground to say that he, being a rich man, cannot be prejudiced by having his right temporarily denied to him.

In this case because the plaintiff lives in Australia and that his other lands allegedly have ‘noxious weeds’ in them is no ground for the defendant remaining in possession. The defendant I have found has no right to remain in possession without any lease or tenancy as against the rights of the plaintiff who is the registered proprietor.

The only ground as I understand it upon which the defendant is harping is that this Court’s judgment might be wrong. That is not a sufficient ground as stated by Isaacs J in McBride (supra) at 375 when he said:

“There is, however, another matter which is essential to a stay of proceedings. It was laid down by the Privy Council, in Nawab Sidhee Nuzur Ally Khan v. Rajah Oojoodhyaram Khan(1), that one essential was that a serious injury would result to the petitioner unless a stay was granted. No evidence showing the existence of that essential was before the Court, and the sole ground upon which, on the materials before the Court, the order was made was that the judgment of this Court might be wrong. In my opinion that is not a sufficient ground. The Supreme Court cannot, in my opinion, accept that as a sufficient ground for staying proceedings.”

Conclusion

To conclude, for the above reasons I do not find that there are any special circumstances to enable the Court to grant a stay. The grounds on which the defendant relies are insufficient in my view for the purposes of this application. The fact that there is a pending action is not a good enough reason to deny the plaintiff his rights as the registered proprietor.

Therefore, in the exercise of my discretion and on the authorities I refuse the order sought, namely, a stay of execution pending appeal with costs against the defendant in the sum of $400.00 to be paid within 7 days of this decision.

D. Pathik
Judge

At Labasa
27 October 2003