Blase v Wati [2015] FJHC 645; HBA6.2015 (4 September 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL APPEAL NO. HBA 6 OF 2015

IN HE MATTER of an Appeal from the Decision of the Tavua Magistrate's Court, in Civil Action No. 43 of 2014.

BETWEEN:

RICHARD BLASÉ aka RICHU of Yasiyasi, Tavua, Self-Employed
APPELLANT (ORIGINAL DEFENDANT)

AND:

INDRA WATI as administrator of the estate of the late Babu Ram of VunibobogaYasiyasi, Tavua, Self-Employed
RESPONDEND (ORIGINAL PLAINTIFF)

Appearances
Mr N. S Khan for Plaintiff
Non-appearance for Defendant
Date of Hearing : 4 September 2015
Date of Order : 4 September 2015

ORDER

1. This is an application filed ex-parte by the applicant to stay execution of the Magistrate's court judgment delivered on 25 August 2015 in Civil Action NO. 43 of 2014 pending appeal.
   
2. The application appears to have been made pursuant to the Magistrates' Court Rules ('the MCR'), Order XXXVII, rule 6 read with Order 8 of the High Court Rules 1988.
   
3. Order XXXVII, rule 6 provides that:
   

'Appeal not to operate as stay of execution

6. Neither notice of intention to appeal nor an appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from, except so far as the court below or the appellate court may order, and no intermediate act or proceeding shall be invalidated except so far as the court below may direct.' (Emphasis provided)

4. It is noticed that the court below (the Magistrates' Court) or the appellate court (the High Court) may order a stay of execution of the judgment or decision appealed against pending determination of the appeal.
   
5. The appellant has filed Notice of Intention to appeal and grounds of appeal within the prescribed time limit. The judgment was delivered on 25 August 2014 and the Learned Magistrate has given 21 days to the applicant to vacate the dwelling.
   
6. Appellant has raised jurisdictional issue in the grounds of appeal. He has also stated that the Learned Magistrate has failed to consider a vital document which clearly shows that the dwelling is not on the respondent's land but the site only encroaching to the respondents land.
   
7. The Appellant has been living on the dwelling since 1968. Hence the respondent will not be prejudiced if a stay of execution pending appeal was granted.
   
8. I have carefully considered the grounds of appeal. The grounds of appeal raise some serious questions which has, in my opinion, prospect of success. If a stay is not granted, the appeal will become nugatory. The applicant may be ejected on the strength of the impugned judgment. And, demolition of the dwelling also likely after the applicant being ejected.
   
9. The applicant has given in his affidavit undertaking as to damage.
   
10. I therefore order stay of execution of the Learned Magistrate's judgment dated 25 August 2015 in Case No. 43 of 2014, pending appeal.
    
11. Cost shall be in the cause.
    
12. This order together with all other relevant documents is to be served on the respondent or the respondent's solicitors within 14 days. The matter is adjourned for mention at 9.30 am on 1/10/15.
    

....................................
M.H. Mohamed Ajmeer
Judge
At Lautoka
4 September 2015