Forum Hotels v Native Land Trust Board [2011] FJHC 293; HBC274.2005L (23 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 274 of 2005L

BETWEEN:

FORUM HOTELS
Plaintiff

AND:

NATIVE LAND TRUST BOARD
1st Defendant

AND

REGISTRAR OF TITLES
2nd Defendant

AND:

ATTORNEY GENERAL
3rd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr A Patel for the Plaintiff.
Ms I Fifita for the First Defendant.
Mr R Green for the Second and Third Defendants.

Solicitors: Sherani & Co for the Plaintiff.
In-house solicitors for the First Defendant.
Solicitor General’s Office for the Second and Third Defendant.

Dates of Hearing: 2 February 2011
Date of Judgment: 23 May 2011

INTRODUCTION

[1] This is the Plaintiff’s application for stay pending appeal of my judgment which I delivered on 31 August 2010 and reported in Forum Hotels v Native Land Trust Board [2010] FJHC 369; HBC274.2005L (31 August 2010).

[2] This was a case where the Plaintiff (“Forum Hotels”) alleged that the Native Land Trust Board (“NLTB”) unlawfully terminated its lease and re-entered under s 105 of the Property Law Act and the Registrar of Titles unlawfully registered the re-entry under s 57 of the Land Transfer Act. It claimed consequential relief including re-registration of Forum Hotels as the lessee. The reason given for re-entry by the NLTB was non-compliance by Forum Hotels with a term of the lease which required it to build a hotel within a certain time.

THE APPLICATION

[3] The Motion for stay was filed on 19 October 2010. The orders sought were to stay all execution and proceedings under the judgment and the NLTB be restrained from sub-dividing, leasing, selling disposing or in any manner from dealing with the land in question until the hearing and determination of the appeal. The grounds of the application were set out in the affidavit in support of Pravin Sundarjee, one of the directors of Forum Hotels.

THE AFFIDAVIT IN SUPPORT

[4] Mr Sundarjee says in his affidavit that there are ten grounds of appeal filed. He says the company’s appeal will be rendered nugatory and the company will suffer irreparable damage if a stay is not granted. He further says that the company will be prejudiced because the NLTB may deal with the land if there is no stay and the balance of convenience favours the grant of a stay.

THE AFFIDAVITS IN REPLY

[5] The Regional Manager, South West, of the NLTB filed an affidavit in opposition. He says the land had been processed to be leased to another lessee but because of the litigation it came to a halt and has been so for a number of years. The NLTB and the landowners have lost a lot of money as result. NLTB has recommenced processing the issue of the new lease of the land immediately after delivery of the judgment.

[6] A litigation clerk in the Solicitor General’s office filed an affidavit in reply. She says that the shareholders and directors of Forum Hotels are all Australian citizens and have not disclosed to the Court whether the company holds a Foreign Investment Certificate as required by law. Her office has been informed that the last tax return filed by the company was in 2000.

THE AFFIDAVIT IN RESPONSE

[7] Mr Sundarjee, in his affidavit in response makes no reference to the allegations made by the Solicitor General’s Office. He only takes objection to the NLTB affidavit being witnessed by the barrister and solicitor that worked in the NLTB’s office.

THE GROUNDS OF APPEAL

[8] The Notice of Appeal was filed on 12 October 2010 and forwarded to the Registry for inclusion in the High Court file. Although the Notice contained 10 grounds the tenth related to costs. Half of the grounds related to what appears to me to be contrary to what counsel had agreed for me to do and that was to decide the case on the trial judge’s notes and make a final decision. The judgement was the result of the Plaintiff’s application for me to decide a point which if found in its favour I was to make consequential orders. I did not find in its favour and accordingly dismissed its claim. The other half were on errors of fact and law.

PRELIMINARY OBJECTION

[9] Mr Patel, counsel for Forum Hotels, objected to admission of the NLTB affidavit because it was witnessed by Ms Fifita who worked in the NLTB office in Lautoka. He submitted that the affidavit was in breach of O 41 r 8 of the High Court Rules 1988 which provides:

No affidavit shall be sufficient if sworn before the barrister and solicitor of the party on whose behalf the affidavit is to be used or before any agent, partner or clerk of that barrister and solicitor.

[10] I dismissed the objection because that rule seemed to apply to firms of solicitors acting for parties to litigation but Ms Fifita was an employee of the NLTB. In any event, what was said in the affidavit was not disputed by Forum Hotels and it was common knowledge that the land was being processed for a new lessee.

THE LAW ON STAY PENDING APPEAL

[11] The law is set out in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 13; ABU0011.2004S (18 March 2005). At paragraph [7] the Court sets out the principles on stay applications:

"Principles on a stay application

[7] The principles to be applied on an application for stay pending appeal are conveniently summarised in the New Zealand text, McGechan on Procedure (2005):

"On a stay application the Court’s task is "carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful": Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at p 87.

The following non-comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, at p 50 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200:

(a) Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo."

APPLICATION TO THE FACTS

[12] It seems to me that the NLTB is likely to suffer greater harm than the unsuccessful Plaintiff. The processing and issue of a new lease has been stifled by this litigation. The proposed lessee and the landowners have been affected adversely and for many years. I am also not convinced that the Plaintiff is bona fide. It sat on its case for nearly six years before judgment. It does not dispute that it has not filed tax returns since 2000 and its shareholders and directors all reside overseas.

[13] Even if I am wrong in my judgment, the Plaintiff can be compensated in damages. The NLTB is no ordinary citizen and I have no doubts that it will come good should payment be required from it.

[14] Further, I am not convinced that the appeal is likely to succeed. As I have said half of the grounds are based on what the Plaintiff says was wrong procedure which is not correct. It is well settled that appeals against the exercise of discretion in procedural and administrative matters are unlikely to succeed. The other grounds are based on what the Plaintiff says were errors of fact and law but have not demonstrated clearly what those errors are.

[15] The balance clearly lies in refusing a stay and I order accordingly. The interim stay granted on 22 October 2010 pending determination of this application is also revoked.

COSTS

[16] There is nothing to displace the usual rule so I order that the Plaintiff pays the First Defendant's and the Third Defendant's costs of $1,000 each within 21 days.

ORDERS

[17] The orders are as follows:

1. The Plaintiff's application for stay of this Court's judgment of 31 August 2010 is refused and dismissed.
   
2. The interim stay against the Defendants granted on 22 October 2010 is revoked.
   
3. The Plaintiff shall pay the First Defendant's and the Third Defendant's costs of $1,000 each within 21 days.
   

............................................................
Sosefo Inoke
Judge