Chand v Ali [2005] FJHC 247; HBC0116.2004 (8 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0116 OF 2004

BETWEEN:

BINAY CHAND & PRAVEEN CHAND
Plaintiff

AND:

ANJUM ALI
Defendant

Counsel: Ms S. Devan - for Plaintiff
Mr. N. Lajendra - for Defendant

Date of Hearing & Judgment: 8th March, 2005

EX TEMPORE JUDGMENT

By summons dated the 7th of March, 2005 the applicant defendant Anjum Ali applies for an order to stay the execution of my judgment pending determination of his appeal. He has filed an affidavit in support of that application.

I gave my extempore decision in favour of the plaintiff’s Section 169 application on the 14th of February, 2005.

In the course of that case I heard from a reluctant witness Mr. Lakshman, the plaintiff landlord’s agent, a trained lawyer. I say reluctant because he would not sign any affidavits in the proceedings and had to be brought to court by force of a Writ of Subpoena.

Having considered Mr. Lakshman’s evidence I then granted leave to defendant’s counsel to call the defendant.

When my judgment was given the defendant sought and was granted extra time to move out. This was conditional on him making certain payment he has not honoured.

Consideration of the Application

This application proceeded at short notice with the consent of both counsel. This was a brief hearing.

The applicant defendant has not in fact filed his appeal but has detailed the prospective grounds at paragraph 4 of his affidavit.

Those grounds are that I erred in law and in fact when failing to consider that section 169 applications should always be dealt with an affidavit alone. Further, that I erred in law and in fact in calling evidence on the 169 application.

Counsel helpfully reminded me that in fact the reason that was necessary on this originating summons was that the landlord’s agent was a reluctant witness and would only come to court under subpoena.

The applicant relies on the classic grounds for a stay. He says he has good prospects on appeal. He says he is willing to pay the judgment sum into court including:

1. What he originally promised to pay but did not. That is all outstanding rent, future rent for 3 months from judgment and costs.
   
2. The costs of the original application as ordered (169).
   
3. Costs of the Writ of Possession the respondent plaintiffs were forced to file on this matter some 24 hours ago.
   
4. The costs of the stay application.
   

The respondent replies by referring to the well-worn decision of (The Annot Lyle [1886] 11 PD at page 116, C.A.). However, counsel responsibly concedes despite that aged principle; that a successful litigant should not be denied the fruits of judgment pending appeal; there are circumstances that may justify a stay.

Counsel criticizes her learned friend’s submission that there is a good chance for the appeal to succeed. Counsel characterizes grounds (a) and (b) of the appeal as hopeless.

I granted the plaintiff’s application to compel the witness to come to court as that was the only way in which his important evidence would be available not only for the benefit of the landlord plaintiff but also the tenant defendant.

Counsel also reminded me that the applicant; at the close of the testimony by the landlord’s agent; made an application and was granted permission to give evidence himself.

Counsel tendered to me a most helpful decision from the Fiji Court of Appeal FAI Insurances (Fiji) Limited v Rajendra Prasad Brothers Limited, Civil Appeal No. ABU0039 of 2002S.

In this decision their Honours observed there is no apparent reason why an application can’t be made for an order under Order 28 Rule 5 permitting oral evidence to be called on an originating summons matter.

The fact that the court has the power to do so on an originating application is an important reflection of the court’s discretionary power to hear relevant evidence from a compellable witness who is otherwise unwilling to provide any of the parties to the originating summons with an affidavit in advance of the hearing.

I agree with the plaintiff counsel’s observation that this indicative ground of appeal contained at paragraphs 4(a) and (b) of the applicant’s affidavit is not strong.

Turning to ground (c) counsel submits that issues of compensation from improvements cannot justify continual occupation of a property. Again counsel very helpfully produced a decision of Ram Chand v Ram Chandar, Appeal No. ABU0021.2002S and 0022.2002S and refer to pages 13 and 15 where the Fiji Court of Appeal observed that the mere fact that a tenant carries out improvements without the consent of his or her landlord does not give him a right to continue occupation of the land if the landlord is otherwise lawfully entitled to it. The fact that improvements are made is not really an answer to a landlord’s 169 application for possession.

Counsel goes on further to note that the Court of Appeal does not have the power to decide compensation on an ejectment appeal. The preferable course is for separate proceedings to claim compensation for those improvements. I agree with those sentiments.

Counsel then points out that it is the landlord who has been prejudiced throughout the course of this entire proceeding. The landlord has been kept out of rent for well over a year. The landlord is entitled to possession, any further delay in providing the landlord with possession will aggravate the obvious prejudice that he has already suffered.

Decision

For the purpose of this application I ignore the fact that no appeal has been filed. The applicant has pinned his colours to the mast in paragraph 4 of his affidavit where he spells out his proposed grounds of appeal.

I find that on originating applications the court is entitled on a proper application to hear oral testimony. The powers contained in Order 28 Rule 5 are specifically devised to drag a reluctant witness to court so that the originating summons might be disposed of after that reluctant witness’s testimony has been given. That was exactly the circumstance here.

There was nothing unusual or exceptional in the procedure adopted. Any prejudice there may have been to the applicant defendant was ameliorated by my granting his application for a right to reply. I don’t see the indicative case being strong on those grounds at all.

In so far as the question of improvements to the property providing the applicant defendant tenant with a right to continue possession. I completely reject that assertion. It is wrong in law. Improvements do not count when it comes to the consideration of ejectment.

There are two further cases that should be mentioned. They are both learned decisions of my elder brother Judge Pathik. The first Bhaskar and Khan, Civil Action 43 of 2002 Labasa Registry, and the second Hamid v Prasad, Civil Action No. 31 of 2002 Suva Registry.

Both of these applications were for stay of ejectment orders pending appeal.

My learned elder brother has succinctly stated the law for consideration.

• The grant of stay is entirely discretionary for the court.
  
• The court will not make a practice of depriving successful litigant of the fruits of his litigation.
  
• When considering the application however the court ought to see that the appeal if successful does not render any remedy nugatory.
  

I am not satisfied that the indicative grounds of appeal can enable me to exercise my discretion in the defendant applicant’s favour.

Any prejudice to him from the improvements to the land he has made can be dealt with by way a separate action against the landlord seeking compensation for those improvements. I do not see that the subject matter of the appeal will be rendered nugatory. The improvements don’t justify possession.

I confirm my earlier observation that I do not see that there was any error of law or fact in hearing evidence on the section 169 originating application.

In these circumstances the court must allow the landlord the benefit of his ejectment order.

Conclusion

At the conclusion of the subject hearing recorded in my extempore decision of the 14th of February 2005 I paid the defendant tenant the courtesy of providing him with a method of staying in the property for 3 months to enable the satisfactory transition for him, his family and his business into new premises. He was asked and consented to this course making promises to pay outstanding rent, future rent and costs.

He has not done the equitable thing of paying the landlord the outstanding one year’s rental that is owed to him. It is not now open to him to come pleading for an equitable relief when he has not dealt with the matter equitably himself.

At page 5 I made directions that provided the defendant tenant made the payments stipulated my order for eviction would be stayed until the 1st of June 2005. No payments were made. In my view the order for eviction is therefore immediate.

This has been reinforced by my granting to the Sheriff of Fiji a Writ of Possession of the subject property. I came to this present application having issued that writ of possession before the Court placed before me the application for stay.

In those circumstances I directed that the Writ of Possession itself was to be stayed until determination of this matter.

Now that this matter is determined and for the purposes of clarity I lift any stay on the writ of possession. The effect being that it is immediately enforceable until such time as any other proper application is made.

As for costs, the unsuccessful applicant defendant is to pay the respondent plaintiff the sum of $500.00 as a global sum for costs and disbursements on this matter.

Gerard Winter
JUDGE

At Suva
8th March, 2005