IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

Civil Appeal No HBA 5 of 2010

BETWEEN:

AGHA KHAN (father's name Akram Khan) of Varoka, Ba, Businessman trading as SHELL BA BRIDGE SERVICE STATION
1st Appellant

AND:

De VITI INVESTMENTS CORPORATION LIMITED a limited liability company having its registered office at Main Street, Kings Road, Varoka, Ba.
2nd Appellant

AND:

TOTAL (FIJI) LIMITED a duly incorporated having its registered office in Suva
Respondent

Appearances:

Mr. Anu Patel (Sherani) for the 1st Appellant
Mr. Koyas & Ms. Laisani Tabuakuro for Plaintiff - Respondent
Date of hearing: 7th February 2012.

ORDER

1)	Parties of consent tendered terms of settlement and order in terms was entered on the 18th April 2011 (and sealed on the 16th June 2011) in this appeal, whereby the Appellants agreed to hand over vacant possession to the Respondent on the 31st December 2011. 

2)	The Appellants having failed to hand over vacant possession by 31st December 2011, the Respondent has obtained writ of possession.

3)	The Appellants by a previous Ex parte application obtained on the 23rd of January 2012 a temporary stay of execution of the said writ for possession for a period of 10 days ending on the 1st February 2012. One ground urged by the Appellant in the said Ex parte application seeking a stay of the writ was that the Respondent has not given notice of its application seeking leave under Order 45 Rule 2(2) and(3) of the High Court Rules. The other that was urged at paragraph 8 in the 1st Appellant Agha Khans affidavit of 20th January 2012, is that the Appellant did not have sufficient time to remove his stock in trade to hand over vacant possession by 23rd January 2012, as per the Sheriffs demand. During that Ex parte hearing the Court took in to consideration the inclement bad weather which resulted in floods in some parts of Ba, in granting a limited stay subject to the Appellant removing his stock in trade and handing over possession after 10 days. However in issuing a stay for a limited period of 10 days the Court has held the irregularity is cured in view of Order 2 Rule 1(1) and as held in Suresh Charan v Rup Narayan and others (1993) HBC 398/92. 

4)	The Appellants current Summons of 20th January 2012 under consideration sets out only one ground and that is the same ground urged that the Respondent has not given notice to the Appellant under Order 45 Rule 2(2) and (3) of its application for leave to issue writ of possession, that was taken in the Ex parte notice of Motion on which the Court has already made an order. Therefore the current Summons is an attempt to take a second bite of the cherry so to speak. In the current Summons the Appellant does not set out any other factual ground. The Appellant does not urge that there would be serious or any loss or harm to the Appellant if a further stay is not granted or if the writ of summons is not set aside or not struck out. The Appellant in supporting his Ex parte application conceded that he has no quarrel with the consent terms and that he knew he had to vacate the premises by 31st December 2011.

5)	Though the issue of the writ for possession may well be irregular the Appellant was well aware of the writ for possession for over 17 days and with the stay of 10 days had ample opportunity to respond as if the application for leave to issue writ of possession had been served on him. Though the Sheriff had gone to the premises to obtain vacant possession prior to the stay of 10 days, still no other party or person has made any other application to Court. As such the purpose of Order 45 Rule 2(2) and (3) appear to have been satisfied. The Appellants application is not under Order 2 Rule 2 (HC Rules) to set aside the execution proceedings or the writ on the ground of irregularity as no reference is made to Order 2 Rule 2 therein. A stay prevents the Respondent from making another application for writ, whereas an application under Order 2 Rule 2 would not. A stay of execution requires much more than an irregularity in not following the Rules.

6)	Though Mr. Koya placed a very persuasive argument before court the Appellant has already enjoyed the benefit of the 10 days stay, and the irregularity complained of had already been addressed by Court by its order of 23rd January 2012. The Appellant therefore is now re-litigating the same issue. Rising ably to the occasion Mr. Anu Patel cited and provided the Court with copies of the orders in Burners vs Bott (1994) FJHC 9 and Chan Lum v Stoddart (1994) FJHC 218-(1994) 40 FLR 242 in addition to Suresh Charan v Rup Narayan and others (1993) HBC 398/92 in opposing the submission of Mr. Koya. 

7)	In the case of Suresh Charan v Rup Narayan and others (1993) HBC 398/92, the possessor was ejected by the Bailiff without even obtaining a writ for possession, and as such by non compliance with Order 45 in its entirety. Still Justice David E Ashton-Lewis held such an act may be irregular but not unlawful and the irregularity is cured by Order 2 Rule 1. However practitioners and litigants are put on notice that they have to comply with Order 45 Rule 2(2) and (3), and this order by no means provides a precedent to avoid compliance. 

8)	In the premises the Appellants Summons of 20th January 2012 to set aside and/or strike out the writ of possession is dismissed. There is no stay of execution sought or granted.

9)	Parties to bear their costs.

Yohan Fernando.
JUDGE.
High Court of Fiji

At Lautoka
8th February 2012.