National Bank of Fiji v Tabuya [2011] FJHC 340; HBC 373.2009 (9 June 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NUMBER: HBC 373 OF 2009

BETWEEN:

NATIONAL BANK OF FIJI
PLAINITFF

AND:

WILISONI TABUYA AND RAVESA TABUYA
DEFENDANTS

Appearances: Mr. P. Sharma for the plaintiff.
Mr. Bukarau for the Defendants.
Date/Place of Judgment: Thursday, 09th June, 2011.
Judgment of: The Hon. Madam Justice Anjala Wati.

JUDGMENT

STAY OF EXECUTION OF JUDGMENT – stay refused since the appeal from which emanated the stay application was abandoned for failure by the defendants to comply with the Court of Appeal Rules.

1. On the 05th day of August, 2011, the defendants filed an application via a motion for stay of execution of the judgment delivered by the court on the 22nd day of July, 2010.
   
2. The orders of the court of 22nd July, 2010 was that:-
   
   • "The defendants must deliver to the plaintiff vacant possession of all that property comprised and described in Native Lease No. 20922 – Tacirua Plains Subdivision, Stage 4, Lot 120 as shown on Lot 8 on SO. 1671 at 79 Rokosawa Road, Tacirua Plains Stage 4, Suva together with improvements thereon.
     
   • The execution of the orders for vacant possession is stayed for 14 days to allow the defendants' time to relocate.
     
   • An injunction restraining the defendants, their servants and/or their agents from interfering with the improvements on the said property in any way so as to deplete its value; and
     
   • Costs to the plaintiff in the sum of $1000".
     
3. The reason why the stay was filed was because the defendants had filed an appeal against the said orders. The Court of Appeal had allocated the Appeal a number of ABU 0026 of 2010.
   
4. The appeal ABU 0026 of 2010 was marked abandoned by the Court of Appeal Registry for non compliance with the Court of Appeal Rules.
   
5. The above was confirmed by a letter from the Court of Appeal Registry dated the 08th day of February, 2011.
   
6. The appeal was abandoned since 11th September, 2010 and it remains abandoned till date. It is now 9 months since the appeal has been abandoned and the defendants have not shown any interest in proceeding with their appeal.
   
7. There is therefore no basis to proceed with the application for stay as any such application is always filed if an appeal is on foot.
   
8. There is no requirement for me to now go into the merits of the stay application as there is no basis to grant a stay when there is no appeal pending. I can only repeat what I assume every legal personnel knows and that is "that every litigant is entitled to the fruits of its judgment". The plaintiff too must enjoy the fruits of this judgment.
   
9. The application for stay is therefore dismissed with costs to the plaintiff in the sum of $500 which I summarily assess.
   
10. The plaintiff is now at liberty to proceed with execution or enforcement of the orders of the court.
    
11. Orders accordingly.
    

Anjala Wati
Judge
09.06.2011
________________________________________________________________________
To:

1. Mr. P. Sharma for the plaintiff.
2. Mr. Bukarau for the defendants.
3. File: HBC 373 of 2009.