Subaramani v Native Land Trust Board [2004] FJHC 419; HBC0335.1997L (17 May 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0335 OF 1997L

BETWEEN:

SUBARAMANI
f/n Armogam
Plaintiff

AND:

NATIVE LAND TRUST BOARD
1st Defendant

AND:

PONIPATE LESAVUA
2nd Defendant

Counsel for the Plaintiff: Mr. R. Prakash
Counsel for the Defendant: Mr. K. Vuataki

Date of Hearing: 14 May 2004
Date of Judgment: 17 May 2004

JUDGMENT

This matter comes before the court by way of Notice of Motion filed on behalf of the defendants. That Notice of Motion seeks that the orders dated 8th October 2003 in this matter be stayed pending appeal.

The Motion is supported by an affidavit sworn on 23rd April 2004, which most relevantly has annexed to it a copy of the Notice of Appeal being ABU0001 of 2004, which Notice of Appeal is dated 24th March 2004.

The application for stay is opposed.

The issues for the consideration of the court, in circumstances such as this, have been considered on many occasions in the past. Perhaps the most forthright statement of principle is that expressed by the High Court of Australia in McBride v Sandland [1918] HCA 59; [1918] 25 C.L.R. 369 where at page 374 Barton J. said and I quote: -

“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.”

The position has been considered by this court on prior occasions and Mr. Justice Gates in Chandrika Prasad v The Republic of Fiji & Anor – HBC0217.2000L at page 9 of his judgment set the principles for stay and I quote from His Lordship’s judgment: -

“It is well known that the litigant once successful should not lightly be deprived of the fruits of his successful litigation: The Annot Lyle [1886] UKLawRpPro 31; [1886] 11 P.D. 114 at 116 C.A: Monk v Bartram [1891] UKLawRpKQB 15; [1891] 1 Q.B. 346. The power of the court to grant a stay is discretionary: The Attorney General v Emerson & Others [1889] UKLawRpKQB 190; [1890] 24 Q.B.D. 56 and it is an unfettered discretion Winchester Cigarette Machinery Ltd. v Payne and Anor (No.2) [1993] T.L.R. 647 at 648.

If a stay was not granted by the court at the time of making the order now appealed against, the applicant must show that special circumstances exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy: Tuck v Southern Counties Deposit Bank [1889] UKLawRpCh 149; [1889] 42 Ch. D 471 at 478 per Kay J; Atkins v G.W. Railway [1886] 2 T.L.R 400; Barker v Lavery [1885] UKLawRpKQB 32; [1885] 14 Q.B.D. 769. In the Winchester Cigarette case (supra) at 648 Lord Justice Hobhouse put it “the appellant had to show some special circumstances which took the case out of the ordinary.”

His Lordship, Mr. Justice Gates, also considered the principles of stay in Jokapeci Koroi, Mahendra Pal Chaudhary, Dr. Ganesh Chand and The Fiji Labour Party v The Commissioner of Inland Revenue & Anor. HBC0179.2001L of 31^st August 2001, where he said at page 3 of his judgment and I quote: -

“I have next to consider the stay itself. The principles for stay are well established. I refer to the Court of Appeal’s decision in Krishna Murti v Atul Kumar Ambalal Patel (unreported) Court of Appeal Fiji Civil Appeal No. ABU0014 of 20000 p. 2-3 and my own decision in the same case (unreported) Lautoka High Court Civil Action No. HBC 00225/99L 9 March 2000. Both of which dealt with the principles. The appellant has to show some special circumstances. In the Winchester Cigarette machinery case (p. 648) which I cited in Peter Elsworth & Anor. v Yanuca Island Ltd. (unreported) Lautoka High Court Civil Action No. HBC0157.19997L 5 June 2001, at p. 9: Lord Justice Ralph Gibson had said: -

.....in recent cases, it had been said that the practice of the court had moved on from the principle that the only ground for a stay was the reasonable probability that damages and costs paid would not be repaid if the appeal succeeded.

Those cases held that the approach of the court now was a matter of common sense and a balance of advantage.

But in holding any such balance of advantage, full and proper weight had to be given by the court to the starting principle that there had to be a good reason for depriving a plaintiff from obtaining the fruits of a judgment.”

The issue was further considered by the High Court of Australia in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [1986] HCA 84; [1986] 161 C.L.R. 681 where Mr. Justice Brennan said at page 684 and I quote: -

“A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal.”

The applicant appears to rely as the sole or certainly dominant basis of its application, the fact that the plaintiff/judgment creditor now resides or dominantly resides in Canada and that there may be difficulty in recovery of the judgment amount should the appeal be successful.

This issue was considered by Mr. Justice Gates in Peter Elsworth & Anor. v Yanuca Island Ltd., which I referred to earlier. His Lordship there held Elsworth being a visitor to Fiji at the time the cause of action arose and being a resident of Australia posed no impediment to the judgment debt being paid and in that instance, His Lordship, granted a partial stay only.

It is also argued by the applicant that there are reasonable prospects of success on the appeal. The basis for that contention would appear to be, that the judgment in favour of the plaintiff, is based upon a finding of implied consent by the 1^st defendant to the construction of the buildings, the subject of the claim.

The plaintiff, in opposing the application puts before the court, an affidavit of a Law clerk, which contains dominantly inadmissible material. It is quite inappropriate for affidavits to be put before the court, sworn by law clerks, who then purport to repeat what the plaintiff has told them as in paragraph 4 of the affidavit of Vitalina Yaya in this matter.

The plaintiff/respondent submits that the plaintiff has assets in this country that would be available in the event that the judgment monies needed to refunded following the successful appeal.

I reject the evidence of the plaintiff as to value of this property. Again, this evidence is set forth in an affidavit of the law clerk, who purports to express the value of the plaintiff’s buildings. Annexed to the affidavit of the law clerk, is a valuation, which is dated 26^th January 1991. There is no evidence of value before the court.

Notwithstanding the paucity of evidence on behalf of the plaintiff, the burden of course rests with the defendant/applicant on the Motion and the burden is indeed, a very high burden in the light of the authorities to which I have referred and without more, I would be firmly of the view that the application should be refused.

However, in recent weeks, the Chief Justice in determining an application for a stay in Civil Action No. HBC0215 of 2001, Michael Fenech v Iftakhar Iqbal Ahmed Khan determined that it was prudent that a stay be granted in circumstances where the judgment amount was only Forty Thousand Dollars ($40,000.00) and the judgment creditor was a businessman resident in Nadi.

In the light of the determination by the Chief Justice, I find myself unable to refuse the application all be it that I am of the opinion that the earlier authorities to which I have referred, warrant such a course being taken.

Whilst I find myself unable to refuse the application, the Orders that I propose will limit the extent of the stay.

Orders of the Court

1. That the Order dated 8^th October 2003 be stayed until the first to occur of:-
   
   • (a) The hearing of the appeal ABU0001 of 2004;
     
   • (b) The failure of the appellant to comply with: -
     
     • (i) the High Court Rules;
     • (ii) the Court of Appeal Rules;
     • (iii) any practice direction;
     • (iv) any order of the Court of Appeal;
       

with respect to the preparation of the appeal for hearing and the hearing of the appeal.

JOHN CONNORS
JUDGE

AT LAUTOKA
17 MAY 2004