Haque v Hussein [2015] FJHC 941; HBC166.2013 (2 December 2015)

IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA
CIVIL JURISDICTION

Civil Action No.: HBC166 of 2013

BETWEEN:

SHEIK SHAFIYUL HAQUE of Meigunyah, Nadi, Self Employed.
PLAINTIFF

AND:

ABID HUSSEIN of Meigunah, Nadi, Businessman.
DEFENDANT

Appearances:

Ms. TabuakuroLaisani for Plaintiff
Mr W. Pillay on instructions of Rams Law

RULING

1.0 Introduction

1.1 The Defendant by way of Notice of Motion filed on the 26th day of March, 2015 has applied for the following Orders:

1. An ORDER that the sum of five thousand dollars ($5,000.00) paid by the Defendant into the Court's Trust Account on the 9th day of February 2015 be forthwith released to the Defendant.
   
2. An ORDER that the Ex-Parte Order obtained by the Plaintiff on the 10th day of February, 2015 for the Defendant to pay costs of one thousand five hundred dollars ($1,500.00) to the Plaintiff within three weeks be wholly set aside and/or discharged.
   
3. An ORDER that the Plaintiff pay for the cost of this application.
   

1.2 The Defendant relies on the Affidavits of Abid Hussein filed herein on the 26th day of March, 2015 and 15th day of June, 2015 in support of the application.

The Plaintiff opposes the application and has filed an Affidavit of Sheik Shafiyul Haque in Reply on the 1st day of May, 2015.

2.0 Chronology of Facts

2.1 The Plaintiff instituted the proceeding herein by way of Originating Summons seeking vacant possession of the land contained in Crown Lease No. 9749. The proceedings were brought pursuant to Order 113 Rule 01 of the High Court Rules 1988 and the inherent jurisdiction of Court.

2.2 By the Order dated 22nd January, 2014 the Acting Master granted vacant possession of the land to the Plaintiff. The Defendant's application to set aside the said Order was dismissed and struck out by the Master by his Order dated 11th August, 2014.

2.3 The Defendant filed Summons in this Court on 15th August, 2014 supported by an Affidavit sworn by the Defendant and sought leave to appeal Master's Decision and Stay of Execution.

2.4 The Defendant's application for leave to appeal and stay the execution was dismissed by this Court on 6th February, 2015 with costs of $750.00.

2.5 The Defendant filed Ex-parte Notice of Motion on 6th February, 2015 and sought Orders to Stay execution to allow Defendant to vacate the premises and sought 3 months' time to vacate.

2.6 The Court granted Ex-parte Orders for Stay of execution until next Mention date on 16th February, 2015 subject to Defendant paying costs of $5,000.00 into Court's Trust account as security. Defendant paid the sum of $5,000.00 into Court's Trust account on 9th February, 2015.

2.7 The Plaintiff filed Ex-parte Notice of Motion on 9th February, 2015 seeking dismissal of the Ex-Parte Orders granted by the Court on 6th February, 2015. The Court granted Orders on the Plaintiff's Ex-Parte application and vacated the Orders granted on 6th February, 2015with costs of $1,500.00 against the Defendant.

2.8 The Defendant filed the present application by way of Notice of Motion on 26th March, 2015 for the release of money paid into Court's Trust account on 9th February, 2015 and discharge of Ex-parte costs Order of $1,500.00 granted on 9th February, 2015. This application is supported by an Affidavit sworn by the Defendant.

2.9 The Plaintiff filed Affidavit in Reply on 1st May, 2015 and sought the following reliefs:

(i) That the sum of $3,300.00 being the costs awarded against the Defendant in the action herein be paid to the Plaintiff before the Defendant is allowed to be heard.

(ii) The sum of $5,000.00 held in the Trust Fund of the Court to be paid to the Plaintiff.

(iii) Costs of the application in the sum of $3,000.00.

(iv) The Defendant's application be struck out.

2.10 The Defendant filed Affidavit in Response to the Affidavit in Reply on 15th July, 2015.

2.11 It is stated in the written submissions filed by the Defendant's Solicitors that the Defendant paid the sum of $1,800.00 to the Plaintiff's Solicitor as costs previously awarded by the Master in the setting aside application and by this Court in the leave to appeal application respectively. The only cost pending is $1,500.00 obtained Ex- Parte on 9th February, 2015.

3.0 Issues to be determined

3.01 Issues to be determined in this matter are;

(i) Whether the Ex-parte Order obtained by the Plaintiff on 10th February, 2015 for Defendant to pay costs of $1,500.00 to the Plaintiff within 3 weeks be wholly set aside and or discharge.

(ii) If the Court decides to dismiss this application whether further $1,500.00 costs should be ordered against the Defendant as claimed by the Plaintiff's Counsel in her Oral Submissions made on 18th November, 2015 and whether a total of $3,000.00 costs against the Defendant should be deducted from the deposit of $5,000.00.

4.0 Determination

4.1 The application by way of Ex-parte Notice of Motion filed on 6th February, 2015 to stay execution to allow Defendant to vacate the premises is made pursuant to Order 113 Rule 6 of the High Court Rules.

4.2 The Defence Counsel argues that the Order dismissing the leave to appeal had not been perfected at the time the Defendant made this application and the Court did have discretionary power to vary the Orders for vacant possession pursuant to Rule 8 of Order 113 and extend the time of giving vacant possession to allow the Defendant to relocate.

Opposing this argument the Plaintiff's Counsel submitted that the Court becomes funtus officio after delivering the ruling on 6th February, 2015 and therefore ought not to have entertained any further application in the same action.

4.3 Order 113 Rule 8 states that the Judge may, on such terms as he thinks just, set aside or vary any Order made in proceedings under the said Order.

4.4 In the present matter outcome of the dismissal of the Defendant's application to leave to appeal and stay is that the Defendant has to vacate the land and handover possession to the Plaintiff. It is not an Order made in proceedings under Order 113 Rule 8 of the High Court Rules. It is an Order made in proceedings under Order 59 Rule 8 of the High Court Rules.

The Defendant's Solicitors have clearly stated in the application made on 15th August, 2014 that it is made pursuant to Order 59 Rule 8 and 9 of the High Court Rules. Accordingly, this Court has made the Order dated 6th February, 2015 dismissing the Defendant's leave to appeal and stay of execution applications in exercising the Appellate jurisdiction of the High Court.

Due to the above reason I find that the Order pronounced on 6th February, 2015 cannot be set-aside or varied by this Court under Order 113 Rule 8 of the High Court Rules; it can only be varied or set aside by the Fiji Court of Appeal. As such I hold that the Defendant's application made by way of Ex-Parte Notice of Motion dated 6th February, 2015 is misconceived in Law and that the Court had no discretionary power to make the Ex-Parte Orders dated 6th February, 2015 on the to the said application.

5.0 Conclusion

5.1 Due to the reasons set out as above I make the following Orders:

(a) The Notice of Motion dated 24th March, 2015 filed by the Defendant is struck out and dismissed.

(b) The Defendant to pay costs summarily assessed at $1,000.00 to the Plaintiff.

(c) A sum of $2,500.00 ($1,500.00 + $1,000.00) to be deducted from the sum of $5,000.00 deposited in the Trust Account on 9th February, 2015and be paid to thePlaintiff of this action, the balance sum of $2,500.00 to be released to the Defendant.

Lal. S. Abeygunaratne
Judge

At Lautoka
2nd December, 2015