Native Land Trust Board v Munif [2015] FJHC 100; HBC170.2010 (20 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 170 of 2010

BETWEEN :

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust At Cap 134 of 431 Victoria Parade, Suva

Plaintiff

AND :

MOHAMMED MUNIF
of 46 Wainibokasi Road, Nausori, Clerk

1st Defendant

AND :

MOHAMMED JANIF
of 46 Wainibokasi Road, Nausori

2nd Defendant

AND :

MOHAMMED SAHIM also known as MOHAMMED SHAHIM
and MOHAMMED SHAHEEM of 46 Wainibokasi Road, Nausori

3rd Defendant

Appearance : Ms Komaitai L. Counsel for the Plaintiff

Mr Singh of K S Law, Counsel for the Defendants

Date of Judgment : 20 February 2015

JUDGMENT

[1] The summons was filed by the Defendants on 6 March 2014, and sought Orders to stay the Orders in the Judgment delivered by this court on 2nd April 2013 pursuant to Order 47 Rule 1 of the High Court Rules.

[2] 2.1 The Affidavit in Support dated 5 March 2014 was sworn by the 3rd Defendant and the First and Second Defendants had authorized to depose the Affidavit by the Document marked "A" annexed to the said Affidavit.

2.2 The Plaintiff filed Affidavit on Oppose, sworn by Lusiana Koroi Litigation Assistant of the Plaintiff sworn on 25 March 2014.

2.3 I agree with the Plaintiff although the action was filed in 2010 the breaches of the lease commenced in 1997 which I have dealt with in my judgment delivered on 2 April 2013.

2.4 The Affidavit sworn by the 3rd Defendant in paragraph 6 states Civil Appeal No. ABU 015 of 2013 was filed and the said Notice of Appeal is not a filed copy (annexure "B") was deemed abandoned. The Plaintiff's Affidavit in Oppose dated 25 March 2014 stated the said appeal was abandoned on 24 April 2013. This position was accepted by the Defendant in paragraph 10 the Affidavit in Reply dated 31 March 2014.

2.5 Thereafter, the Defendant, in paragraph 6 of his Affidavit stated he was informed by Mr Singh of K S Law that Mr Chand has filed another appeal and Case No. ABU 0018 of 2013 have also paid security for cost in the sum of $3000.00. I find that the Defendants purposely avoided stating the date of filing the 2nd Notice of Appeal when the Plaintiff stated in paragraph 8 of its Affidavit in Response that the 2nd Notice of Appeal was filed on 6 May 2013, the Defendant admitted the same in paragraph 10 of their Affidavit in Reply dated 31st March 2014 the 2nd Notice of Appeal was filed on 6th May 2013 and application for summons to fix security for costs was filed on 10 May 2013.

2.6 The summons filed to stay of the execution pending Appeal in paragraph 1 states:

"(1) that the execution of orders granted by Honorable Justice Mr C Kotigalage dated 2nd April 2013 in Civil High Court Action No. 170 of 2010 be stayed pending the determination of the Appeal by the Defendants in the Court of Appeal Action No. ABU 0018 of 2013".

I find the said Notice of Appeal in Case No. ABU 0018 of 2013 was not annexed to the Affidavit in Support dated 5 March 2014 or to the Affidavit in Reply dated 31 March 2014. The Notice of Appeal annexed to the Affidavit in Support for the Summons is ABU 0016 which is admittedly abandoned.

In the circumstance, I determine that there is no Notice of Appeal in Case ABU 18 of 2014 to consider before me and further the grounds of appeal stated in the submissions cannot be considered and it has no merits and the Defendants fail.

Accordingly, there is no necessity to make determination on the other issues taken up during the hearing and the written submissions.

[3] Accordingly, I make the following Orders:

(a) Summons filed on 6 March 2014 for Stay of Execution pending Appeal dismissed.

(b) The Defendants are ordered to pay $1,500.00 costs summarily assessed to the Plaintiff within fourteen (14) days of this Judgment.

Delivered at Suva this 20th Day of February 2015.

........................

C. KOTIGALAGE

JUDGE