Handyman's Ltd v Nisha - Ruling [2017] FJHC 606; HBC241.2016 (10 August 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 241 of 2016

AND IN THE MATTER of an application under Section 169 of the Land Transfer Act.

BETWEEN : HANDYMAN’S LIMITED a limited liability company having its registered office situated at 151 Ratu Mara Road, Samabula, Suva.

PLAINTIFF

AND : NAZMEEN NISHA trading as POTLUCK SIGATOKA of 6 Padam Lala Road, Tamavua, Businesswoman

DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Mr. Nilesh Prasad - for the Plaintiff

Mr. Anand Singh - for the Defendant

DATE OF RULING: 10^st August, 2017

RULING
[Defendant’s Summons seeking an order for stay of the proceedings pursuant to the Inherent Jurisdiction of the High Court]

APPLICATION

1. This is the Defendant’s Summons seeking the following orders-
   
   • (a) That the proceedings herein be stayed pending the hearing and determination of an action instituted against the Plaintiff being HBC No. 286 of 2016.
     
2. The Defendant relies on the Affidavit in support deposed by the Defendant Nazmeen Nisha.
   
3. The Plaintiff opposed the Defendant’s application for stay of proceedings in Civil Action HBC 241 of 2016.
   

THE LAW

4. This application has been made pursuant to the Inherent Jurisdiction of the Court.
   

ANALYSIS and DETERMINATION

5. The issue pending before this Court now is “Whether the substantive proceedings seeking an order for Vacant Possession in the within this action (HBC 241 of 2016) be stayed pending the hearing and determination of the Defendant’s action against this Plaintiff (Handyman’s Limited) in HBC 286 of 2016?”
   
6. Both Counsels agreed that both pending applications [S.169 seeking an order for vacant possession and Stay of Proceedings] on this file be heard and determined altogether.
   
7. The Defendant in this action filed a separate Writ Action in HBC 286 of 2016 against the Plaintiff on 21^st November, 2016. The nature of the claim or relief sought by the Defendant in that action are numerous and parties are completing the pleadings therein in order to allow the Court to finally hear and determine the issues therein.
   
8. Based on the Defendant’s Writ Action, the Defendant is seeking an order for stay of the proceedings in Civil Action No. HBC 241 of 2016 until the final determination of HBC 286 of 2016.
   
9. Upon the perusal of both actions, I find that HBC 241 of 2016 was commenced on 22^nd September, 2016 whilst Action No. HBC 286 of 2016 was commenced on 21^st November, 2016, some 2 months later.
10. The Courts have ruled on many occasions that the existence of a separate action is not in itself sufficient to resist an application made pursuant to Section 169 of the Act.
    
11. Reference is made to the Fiji Court of Appeal Case of Jamnadas v. Honson (Civil Appeal No. 22 of 1985) wherein it was held:
    

“That existence of such proceedings was, by itself, not a cause sufficient to resist an application under Section 169 of the Land Transfer Act Cap 131.”

12. Further, the proceedings filed in Civil Action No. HBC 241 of 2016 is a summary proceedings which does not disclose any complicated issues of fact or law that precludes the matter being dealt with summarily.
    
13. This application has to be considered bearing in mind the essential facts of the case. For the purposes of the present application the following are relevant considerations: This was an action seeking an order for vacant possession which can be dealt with summarily since it does not disclose any complicated issues of fact or law that needs to be dealt with. The Deed of Lease was executed between the parties in respect of the Expired State Lease No. 813 and therefore was null and void ab initio. This was done without the consent of the Director of Lands, and the law in such cases being as clear as crystal.
    
14. Accordingly, I have heard the Substantive issue wherein the Plaintiff is seeking an order for vacant possession and a Ruling will be delivered simultaneously.
    
15. The pending Civil Action No. HBC 286 of 2016 which has been commenced by the Defendant [Nazmeen Nisha t/a Potluck Sigatoka] in the current action will take its normal cause and the Court will eventually deliberate on the Substantive pending issues therein in time to come.
    
16. I do not find any merit in the Defendant’s stay application and for the aforesaid rational, hereby dismiss the application accordingly. The Plaintiff is entitled to costs which will now be summarily assessed at $1,000.
    

ORDERS

(i) The Defendant’s Summons for Stay of Proceedings is hereby Dismissed.

(ii) The Defendant to pay the Plaintiff summarily assessed costs of $1,000 within the next 14 days.

(iii) Orders accordingly.

DATED AT SUVA THIS 10^TH DAY OF AUGUST, 2017

...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva.

cc. Mitchell Keil, Suva
Singh & Singh Lawyers, Suva