Civil Aviation Authority of Fiji v Deo [2004] FJHC 187; HBA0060.2004 (26 March 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL ACTION NO. 60 OF 2004

BETWEEN:

CIVIL AVIATION AUTHORITY OF FIJI
Appellant

AND:

SUMMAT DEO
Respondent

Counsel: Mr. Parshu Ram - for the Appellant
Mr. A Sen - for the Respondent

Hearing: 24 March, 2004
Judgment: 26 March, 2004

JUDGMENT

Before the Court is a notice of motion filed by the applicant (defendant/appellant) seeking that there be a stay of execution on the judgment entered by the trial magistrate in the Labasa civil action 284 of 1994 pending the final determination of the substantive appeal.

The proceedings before the lower court had a long and checked history. The chronology of which is as follows:-

06-07-1994 Writ of summons issued
22-07-1994 Statement of Defence filed
25-01-1995 Hearing set adjourned

24-05-1995 Hearing aborted – Plaintiffs Solicitors engaged in another trial

23-08-1995 Hearing – case not heard
13-12-1995 Various hearing dates set. Adjourned mainly because Plaintiff was not ready with witnesses.
16-06-1998 Leave to Amend Statement of Claim
05-08-1998 Amended Statement of Claim filed
20-08-1998 Amended Statement of Defence filed
09-12-1998 Hearing commenced
21-12-1999 Evidence of witness completed

Court ordered submissions

1 month to Plaintiff

1 month to Defendant

7 day to Reply

11-10-02 Judgment appears to have been written

File was sent to Labasa. The judgment was unsigned and

Magistrate Mr Nakora refused to deliver it.

15-11-2002 We wrote to Court to advise that the process was not complete

Judgment could not be given

06-12-2002 Judgment delivered in Court
03-01-2003 Grounds of Appeal filed
27-01-2003 Application for stay filed
22-12-2003 Ruling refusing stay
24-12-2003 Notice of Intention to Appeal filed
22-01-2004 Grounds of Appeal against refusal of stay filed

It is note worthy that in the almost 3 year period between December of 1999 and October of 2002 when the judgment appears to have been written the learned magistrate did not have the benefit of submissions from any party to assist him in perfecting his judgment. Strictly speaking this was not a situation of a failure to permit addresses, however I find the situation as analogous to that which arose in Nyholt (CW) v Bish Limited 17 FLR 18 at 19 where it was observed:-

It is absolutely fundamental to the trial of a defended civil action that opportunity be given to the contesting parties both to have the evidence of themselves and their witnesses heard and to address the Court either in person or through Counsel before a decision is reached.

The failure of any Court of Law to allow reasonable opportunity to the parties both to call witnesses and give evidence and to address it, is a fatal defect that must vitiate the decision that is given by that Court in those proceedings.

I make this observation now as one of the grounds I will later have to consider is whether there are any prospects of success in the appeal.

The Affidavits

The applicant filed a lengthy affidavit in support by Salendra Kumar dated 12 February 2004. This in turn attached for the court record three affidavits earlier filed in the Magistrates Court in support of a stay application. For the purposes of this application the essential feature of this affidavit clearly stated and repeated is that the applicant believes that if it pays the judgment sum over to the plaintiff it may never see that money again despite the outcome of the appeal. In effect it is then argued that the result of the appeal would be rendered nugatory.

The respondent’s counsel sought and was granted leave to have his client reply to that affidavit and annexures. Interestingly the respondent himself did not file an affidavit in reply rather a legal executive from his lawyer’s office took that role. I pause here to further note that the affidavits annexed in the applicant’s supporting affidavit have never been replied to directly by the respondent in this proceeding.

As I have earlier said the pivotal point is the allegation that once these monies are paid over to the successful plaintiff they will never be seen again. On this point the respondent’s legal executive Malti Singh in his affidavit in reply dated the 27th of February 2004 simply says:-

As to paragraph 12 I say that the defendant and its solicitors are misconceived and confused.

There are two points that must be made about this kind of reply apart from the fact that it is unhelpful:-

1. I do not know how the respondent (or for that matter his counsel) believe that an affidavit tendered from a legal executive of his solicitors firm in any court proceedings could have much relevance. How can a legal executive in that position hope to have any available evidence of relevance to the proceedings. That criticism cuts both ways in that the applicant also had a supporting affidavit filed by its clerk. However the difference was that the applicant’s affidavit at least sort to draw some proper inference on the poor circumstances of the plaintiff from other affidavit material and the substantive magistrate’s decision.
   
2. Further, even if I were to accept that there were some proper basis to attach weight to this affidavit I consider the response meaningless. Rather than address the pivotal issue and provide some factual response for this hearing the deponent resorts to an ad hominum attack.
   

This issue was fairly raised by the applicants. It was highlighted as pivotal in their application for stay it was not addressed in reply in this proceeding. I am therefore left in a position where I must accept the best available evidence and that is the uncontested statements of the applicant that if they pay this money over they might never see it again.

I observe that the common practice of having clerks and legal executives in law firms file substantive affidavits in court proceedings on contested issues is most unusual. It will be rare indeed when there is proper occasion to do so. It is a practice that should be discouraged and discontinued.

Appropriate jurisdictional procedure

The plaintiff respondent complains that the applicant has already run its application before the learned magistrate and should not now be given the opportunity for a re-run of that argument. He questions whether this court under its “appellate jurisdiction” can substitute its own discretion in place of the magistrate who considered the application on its merits.

In my view this court does have jurisdiction to consider a fresh application for stay.

Order 37(iv) r6 of the Magistrates Courts Rules reads:-

Neither notice of intention to appeal nor an appeal shall operate as a stay of execution of proceedings under the judgment or decision appealed from except so far as the court below or the appellate court may order.

(The emphasis is mine)

I am fortified in my view that this court has jurisdiction to entertain a fresh application for stay, not only by this provision of the act but also by analogy from the helpful decision of Sun Enterprises Ltd and Anor v Thai Brickworks (Fiji) Ltd and Anor Civil Appeal No. 60 of 1992 an appeal in the Fiji Court of Appeal. It was the decision of the then President of the Court of Appeal Sir Moti Tikaram. At page 4 of the judgment he said:-

A stay application before a single Judge of the Court of Appeal is entertained by the virtue of concurrent jurisdiction enjoyed by this Court. The Appellants having complied with the provisions of Rule 26(3) of the Court of Appeal Rules, i.e. by applying for a stay in the Court below in the first instance, are entitled to apply afresh to this Court in the event of being unsuccessful in the High Court. In short, the application before me is not an appeal.

I adopt that principle here. The application before me is not an appeal but a fresh application to exercise this court’s discretion to grant a stay of execution of judgment. This involved different considerations to that which occupied our now Chief Justice in Burns Philp (South Sea) Co td v Devi in Civil App. 2/95. This application is not simply a review of the exercise of a lower court’s discretion, although that may form part of the overall assessment on the balance of convenience, rather this is a fresh application.

Stay of execution of judgment

The law on granting stay is well settled. The Court has an absolute and unfetted discretion in granting or refusing a stay and generally does not make a practice of depriving a successful litigant of the fruits of litigation to which they are prima facie entitled pending an appeal. However a stay will be granted where special circumstances are such that the exercise of the discretion is warranted. A useful summary of the principles was found in the case of Reddy’s Enterprises Ltd v The Governor of the Reserve Bank of Fiji civil app. no. 67/90. At p10 the court observed that the relevant considerations were:-

• the nature and purpose of appeal
• prejudice to the parties
• balance of convenience
  

For the purposes of this application the following principles are also of some relevance. The learned President Sir Moti Tikaram in Bryan Charles Ferrier Watson v Sultan Mohammed Civil Appeal No. 8 of 1991. His Lordship said in relation to an appeal where premature payment of the judgment may disappear and be irrecoverable:-

Although the respondents are in general, entitled to enjoy the fruits of their victory without any delay it does appear to me that if the stay is not granted the applicant/appellant’s appeal if successful is likely to be rendered nugatory or substantially nugatory.

Another relevant decision is that of A.G. v PACOIL (Fiji) Ltd ABU0014 of 1999. In particular page 3 of that judgment where the Court of Appeal said:-

It is true that generally a successful party is entitled to the fruit of the judgment and the party against whom judgment has been entered has been required to show special circumstances for a stay. However, one sufficient ground for a stay can be in the absence of reasonable prospects that the money paid over will be recovered in the event of a successful appeal.

Decision

In a very preliminary way I have formed the view that there appear to be some prospects of success in this appeal. The case took a long time to come to trial. The decision took an inordinately long time to be released. Despite orders that the court would consider submissions before judgment no submissions were called for. This criticism underscores the fragility of the primary judgement.

What is required in any stay application is a balancing of interests.

Based on the affidavit evidence before the Court, if these monies are paid to the plaintiff there may be difficulty in recovering those funds after a successful appeal. There is a risk of prejudice to the applicant that remains unanswered.

In my view if no stay is granted the applicant’s right of appeal might be rendered nugatory. That is exactly the sort of prejudice that will motivate the court to grant a stay. I note the learned magistrate who considered the stay application originally does not refer to this issue.

As for the balance of convenience. In my view it favours the applicant. Despite respondent counsel’s criticism from the bar of “fly by night Fijian quangos” in my view there is nothing in the evidence that suggests this substantial quasi statutory body is about to go out of business.

I also repeat my preliminary view on the merits of the substantive appeal. The failure to call for submissions before perfecting judgement after a three year lapse in time may prove fatal to the judgement.

The plaintiff is most unlikely to be denied the “fruits of my litigation” after the appeal case is settled. He does however deserve to have the judgment sum attract current interest rates pending that decision. Further his legitimate costs of attempted execution of judgment should be immediately reimbursed.

Accordingly the orders of the court are:-

1. That there be a stay of execution on the judgment entered by the trial magistrate the Labasa Civil Action 284 of 1994 pending the final determination of the appeal filed by the defendant on 30/12/2002.
   
2. The Applicants are ordered to hold the full judgement sum in a separate interest bearing trust account at a rate fixed for short term deposits set by the ANZ bank Fiji Limited on the date of this judgment.
   

Such monies to be invested to earn interest for the benefit of the plaintiff the defendant or such other person(s) that may be adjudged entitled to that money as a result of the appeal.

3. The respondent is to certify his costs of attempted execution of judgement and file and serve these on the applicant. These costs are to be paid within 7 days of service.
   
4. Costs of this application are to form part of the costs in the Appeal cause.
   
5. The substantive appeal is to be given an early fixture. In this regard leave is reserved to either counsel to refer this matter back to me to seek further directions.
   

Gerard Winter
Judge

At Labasa
26 March 2004