Ali v Lautoka General Transport Co Ltd [2005] FJHC 365; HBC0295.1999 (21 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0295 OF 1999

BETWEEN:

HABIB IRSHAD ALI
father’s name Afzal Ali of
Bekana Lane, Lautoka, Unemployed by his father and next friend AFZAL ALI father’s name Habib Ali of Bekana Lane, Lautoka, Accountant.
PLAINTIFF

AND:

LAUTOKA GENERAL TRANSPORT CO LTD a
limited liability company having its registered office at Lautoka.
FIRST DEFENDANT

SANJAY SINGH
father’s name Sohrat Singh of Lautoka, Driver.
SECOND DEFENDANT

Mr Chaudhary for the Plaintiff
Mr D. Gordon for the Defendant

Date of Hearing: 14 October 2005
Date of Ruling: 21 October 2005

INTERLOCUTORY RULING OF FINNIGAN J

There have been substantial delays since I delivered judgment on 15 July 2005 and since the Respondent filed its Motion for Stay of that judgment and for stay of winding up procedures on 29 September 2005. I shall deliver this ruling in short form.

The decision whether to stay the orders made in my judgment and the winding up procedure is one which is governed by a host of authorities, particularly the authorities on the last page of the submissions of Counsel for the first Defendant, These are well known and accepted by the Court. Counsel for the Plaintiff has handed up two further authorities, particularly Khan –v- Waqanivere No HBM0007.1997L, a ruling of this Court. From the cases I am satisfied the guidelines are:

(i) any special circumstances which point to order stay as being required,

(ii) whether justice requires that the judgment be stayed,

(iii) will refusal make the appeal pointless or nugatory and/or make restitution if successful unlikely?

The second two are really included in the first. There are other guidelines;

(iv) the strength of the grounds for appeal; and

(v) the applicant should show that there are special circumstances favouring stay; Latchan –v- Martin (1983) FCA 233.

The applicant has disclosed the grounds of the intended appeal.

As in that latter case however the applicant has shown no circumstances at all why it should not pay out on this Court’s judgment. The reasons for the first Defendant’s delay are not for this Court to consider. The first Defendant may or may not have remedies against its own lawyers. That is not the business of this Court and not a reason in justice for denying the successful Plaintiff his fruits.

However there is some substance to its suggestion that the Plaintiff may well use the money for its intended purpose if it is paid to him and for that reason it may not be available if the appeal is allowed. Therefore I will order that the money be held by the Court until the Court of Appeal has finished with the matter.

There is an order that the first Defendant pay into this Court by 4.00pm on Monday 7 November 2005 the full amount of the sealed order dated 20 July 2005, to be held by this Court on interest bearing deposit until this Court makes an order for payment out.

There is an order that the Plaintiff will not prosecute procedures for winding up the first Defendant until further order of this Court.

Costs of this application lie where they fall, I make no order.

D.D. Finnigan
JUDGE

At Lautoka
21 October 2005