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Prasad v Sharma [2022] FJHC 575; HBC332.2020 (9 September 2022)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION


CIVIL ACTION NO - HBC 332 of 2020


BETWEEN:


PRAMIL PRASAD of Tamavua, Suva
APPLICANT


A N D:


UMINENDRA SHARMA of Sakoca, Nasinu
RESPONDENT


Appearance : Mr. Amrit Chand for the applicant
Mr. Krisheel Chang for the respondent


Hearing : Wednesday, 6th July, 2022 at 9.30 a.m


Decision : Friday, 9th September, 2022 at 2.30 p.m


DECISION


  1. INTRODUCTION

(B) BACKGROUND


[1]. The background to the present action is set out in some detail by J. Seneviratne in his Judgement delivered on 08.10.2021. Although it is not necessary to restate all the matters to which reference was made in the Judgment, it is appropriate to provide some background in order to put the present application into context.

[2]. The applicant moved into the dwelling house of the respondent in the year 2017, after he found out that the respondent was looking for a caretaker. This dwelling house was situated at House NO. 38, Waisasa Settlement, 5 ½ Miles, Tamavua, Suva.

[3]. The respondent , after sometime of the applicant’s moving in, informed the applicant that he wishes to start charging rental payment for the dwelling home and the applicant agreed to a rental amount of FJD 300.00 per month for the lease/occupation of the dwelling home.

[4]. The respondent sometime thereafter informed the applicant that due to the dwelling home built on squatter land, the dwelling home could not be legally rented/leased to anyone and due to this reason the applicant would have to sign a statutory declaration that indicating that he was the caretaker of the respondent’s dwelling home and that he was not paying rent.

[5]. The applicant says that he signed the document which was prepared by the respondent at that time. The applicant says that he did so with the intention of needing a place to reside at that time.

[6]. The applicant continued to make the rental payments each month. Since March 2020, the applicant started making payments in the sum of FJD 150.00 because his financial situation (being employed as a taxi driver) was impacted by Covid-19.

[7]. The respondent did not agree to the applicant’s assurance that he would make good on the missed out payments once his income picked up. The respondent started verbally placing the applicant on notice to vacate the dwelling house.

[8]. From August 2020, the applicant’s financial situation worsened and he could not afford to pay any money towards the rent and during this time the threats of harm and intimidation from the respondent increased.

[9]. During this period, the respondent had gone to the Water Authority of Fiji and had water connection to the dwelling home disconnected.
[10]. On 02.10.2020, the respondent through his solicitors served the applicant notice to vacate within 14 days.

[11]. On 29.10.2020, between 4.30pm – 6.00pm, the respondent with around 12 people forcefully entered into the dwelling home and forcefully removed all the belonging of the applicant from the dwelling home and started pilling the same outside in the yard whilst it was heavily raining. The respondent had placed a different padlock on the grills of the front door preventing the applicant from re-entering.

[12]. During the above time, the respondent, in an attempt to arbitrarily evict the applicant’s family and the applicant out of the dwelling home, grabbed applicant’s wife’s hand and then pushed her towards a table. The applicant’s wife on 19.10.2020, had given birth to her son via caesarean delivery and at that time she was pushed by the respondent whilst she was holding out eight (08) days old infant in her hand.

[13]. The push by the respondent, led to applicant’s wife’s stitches from the caesarean surgery to open when she collided with the table.

[14]. During the commotion, the applicant’s elderly mother who is a person of disability was forcefully boarded into a taxi by the respondent and had been taken away.

[15]. By the end of the commotion, the applicant, his wife, two very young children and wheelchair bound mother were left with not shelter and homeless.

[16]. The applicant then commenced proceedings in the High Court in the matter of an application under the provisions of Section 44(1) of the Constitution for redress for arbitrary eviction that was undertaken by the respondent.

(C) THE PRINCIPLES TO BE APPLIED


[1]. The Court of Appeal of Fiji in Native Land Trust Board v Shanti Lal[1] had set out the law on stay pending appeal. His Lordship Chief Justice Gates (as His Lordship was then) in the said Court of Appeal case stated that a Court considering a stay should take into account the following questions:

[2]. The principles laid down by the Court of Appeal in the above case is used and cited in various cases for stay application.

[3]. The Fiji Court of Appeal in “Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd[2]” held thus;

“The principles to be applied on an application for stay pending appeal are conveniently summarized in the New Zealand text, McGechan on Procedure (2005): “On a stay application the Court’s task is carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful.” Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at p.87.


[4]. The following non comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd[3] and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission[4];
  1. Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd 1977 2 NZLR 41 (CA)
  2. Whether the successful party will be injuriously affected by the stay.
  1. The bona fides of the applicants as to the prosecution of the appeal.
  1. The effect on third parties.
  2. The novelty and importance of questions involved.
  3. The Public interests in the proceeding.
  4. The overall balance of convenience and the status quo.

The basic factors are summarised below;


[5]. The basic rule is that a litigant is entitled to enjoy the fruits of its success but however the Court has unfettered discretion to impose a stay of execution if the justice of the case so demands (BMW AG v Commissioner of HM Revenue and Customs)[5].

[6]. A stay of the proceedings will be granted to protect the status quo and not to render the appeal nugatory.

(D) CONSIDERATION AND THE DETERMIINATION


[1]. The granting of a stay of execution of any judgement pending an appeal is always a matter of discretion of the court and can be given either absolutely or for such period and subject to such condition as the court thinks fit.

[2]. The respondent contends that the application should be granted because; (Reference is made to paragraph (6), (7), (8), (9), (10), (11), (17) and (20) of the affidavit in support of the respondent sworn on 15.11.2021).
  1. That upon perusing the judgement of this honorable court and also obtaining advise from my lawyers, I am very aggrieved and prejudiced with the court judgement and orders where the court has ordered me to pay the sum of $20,000.00 to the Plaintiff and the costs to the Plaintiff in the sum of $2,000.00.
  2. That first of all I was never involved in the eviction of the plaintiff from my dwelling. I just went to take advise from the landowners as what should I do. That upon land owners advising me that they will take this matter on their hands. They went and spoke with the Plaintiff, where based on their respective discussion, eviction proceedings were actioned by landowners however, I was blamed later on for all these things.
  3. That I am aggrieved that when there was no such, argument and evidences produced regarding any compensation or any damages to be awarded to the Plaintiff, I do not know how did the court assessed the damages in the sum of $20,000.00 to be paid to the plaintiff by me within 30 days.
    1. That l am largely prejudiced in this matter where the dwelling I built for me and my family use, I have unable to use for my benefit for more than 1 year, I am unable to access to my dwelling for more than 1 year, I used my hard work earned money to erect the said dwelling and keep it proper however, plaintiff who has not done any single work, repair or have ever assisted me in up keeping of the said dwelling is benefiting for free form my dwelling.
  4. I do not understand where justice for me is. The Plaintiff showed some quotations through his affidavit where I through my lawyers was not allowed for cross examination, and no evidence was ever produced for damages claim of $20,000.00 hence, I do not see right and justice for me to pay the sum of $20,000.00 to the plaintiff without proper evidences produced in court by way of oral evidences and cross examination.
  5. I also cannot understand where I will be recovering my loss that has been caused by the plaintiff himself to me. In return I am being prejudiced where I have been ordered to pay $22,000.00 to the Plaintiff and also to bare the loss suffered by me.
  6. That I seek stay of execution of the said judgment upon the grounds that I have filed an appeal against the said decision and I have a meritorious appeal.
  7. That through this stay application there will be no prejudice caused to the Respondent/ Applicant since there has been no dispute on me being the rightful owner of the said property and nothing has been contributed by the Respondent/ Applicant towards the said property. I have built the dwelling using my own hard money and savings and from the approval of the Land owner thus I have every right to ask the Respondent/ Applicant to evict the said property. That the sole purpose to acquire and built the dwelling on the said land was for me to reside there as I am a truck driver from Labasa to Suva and vice versa during 3 - 4 days per week hence, I need an availability of the said dwelling whenever I return to Suva every week.

[3]. The applicant’s opposition to the application is as follows:

[4]. Counsel for the respondent relied on the following decisions:-

[5]. Counsel for the applicant relied on the following decisions:

[6]. In considering the exercise of discretion by this court in granting a stay, it is necessary to consider whether the respondent’s circumstances are sufficiently exceptional for the exercise of the discretion to grant a stay.

[7]. Therefore, it is necessary to consider the relevant principles set out in Natural Waters decision (supra) and Dymocks Franchise Systems (NSW) Pty Ltd (supra).

That if a stay is not granted whether the appeal of the respondent would be rendered nugatory?


[8]. The respondent carries the burden of establishing by affidavit evidence that if a stay is not granted his appeal would be rendered nugatory. I bear in mind the general rule that the Court does not “make a practice of depriving a successful litigant, the fruits of litigation and locking up funds to which prima facie he is entitled” pending appeal. [‘The Annot Lyle [6]; Monk v Bertram[7]]. The Court may grant a stay of execution where the respondent demonstrates that his appeal will be rendered nugatory or substantially so if a stay is not granted.

[9]. It was said in John Fong v John T Polotini and Another[8] at page (18) that the only ground, as a general rule, for a stay of execution, is an affidavit showing that if the appeal were successful then there would be no possibility of getting back any costs or damages which had been paid to the other party. There is not a word about this in the respondent’s supporting affidavit.

[10]. The relevant factor which this Court must consider in a matter such as this is whether if the appeal is successful, it will turn out to be nugatory because of the applicant’s financial inability to repay to the respondent the monies in the sum of $ 20,000.00 which the Court of Appeal might subsequently direct him to repay. The respondent has not adverted to this question in the supporting affidavit. In my view, he should have. There is virtually no evidence in affidavit form to support that the applicant would not be financially capable of returning the monies in the sum of $ 20,000.00 paid to him if the appeal is successful. The affidavit material has not condescended to particulars showing that if damages are paid out to the applicant there is no prospect of the respondent, if successful with his appeal, being able to get back his money[9]. This is not shown to be a case where a stay is required in order to preserve the subject matter of the litigation.[10] No dire consequences are alleged to flow from the lack of stay. Nor will respondent face ruin without a stay.[11]

Thus, I am not satisfied that declining a stay would render the appeal nugatory.


The bona fides of the respondent as to the prosecution of the appeal


[11]. An application for stay must satisfy the court that he is acting in good faith in making the application.

[12]. The judgment that the respondent seeks to have stayed was delivered on 08.10.2021, and it was pronounced in the presence of the respondent. However, the application for stay was only filed on 15.11.2021, a delay of approximately one (01) month and eight (8) days. The respondent in his affidavit has not in any manner or form deposed to any facts in respect of the delay.

[13]. According to the Judgment orders, the respondent was to pay the applicant FJD 20,000.00 as compensation for breach of his Bill of Rights [arbitrary eviction] on or before 7.11.2021. If he was not so minded to pay, he should have applied for a stay of execution of the Judgment before 07.11.2021. The respondent on his own volition chose not to do so. This is the conduct of the respondent applying for stay execution of the Judgment. This does not leave a good impression. The conduct of the party applying for discretionary relief is always an important element for consideration.

[14]. I bear in mind what was said in Wilson v Church[12]

“Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in ordinary cases to make such orders for staying proceedings under a judgment appealed from, as would prevent the appeal, if successful, from being nugatory. But the Court will not interfere if the appeal appears not to be bona fide, or there are other sufficient exceptional circumstances.”


(Emphasis added)


[15]. It has long been recognized that an application for stay should be filed promptly after judgment. An appellant wishing to stay execution should not wait until execution steps are taken. Our interruption of the business of the Court to hear the stay application should not be taken as condoning late applications.

The effect on the third parties


[16]. There are no third parties involved in this matter and therefore if a stay is not granted there can be no effect on third parties.

The novelity and importance of question involved.


[17]. The matters relating to constitution redress and breach of rights guaranteed by section 39 of the constitution have been dealt with previously in this jurisdiction and therefore the matters that are the subject of the appeal appear to be neither sufficiently novel or of an importance to a wider audience than that of the two litigants locked in dispute.

The balance of convenience.


[18]. The test here is a determination of which of the two parties will suffer greater harm from granting or refusal of an interim stay pending a determination of the appeal on merits, balancing of conflicting consideration is required, between the underlying principle that a litigant, is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal will render the appeal nugatory or substantially nugatory.

[19]. In Stephen Patrick Ward v. Yogesh Chandra[13] it was stated:

“[25] In Atul Kumar Ambalal Patel v. Krishna Murti (unreported) Civil Action HBC 022.99L in ruling against the grant of a stay, the High Court stated at pages 2-3;

“Once successful, the litigant should not lightly be deprived of the fruits of his successful litigation: The Annot Lyle (1886) 11P.D. 114 at 116 CA; Monk v. Bartram (1891) 1 AB 346. The Power of the Court to grant a stay is discretionary. The Attorney-General v. Emerson and Others (1890) 24 QB 56; and it is “an unfettered discretion” Winchester Cigarette Machinery Ltd v. Payne and Anor (No.2) (1993) TLR 647 and 648.


If a stay was not granted by the Court at the time of making the order now appealed against, the applicant must show that special circumstances exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy Tuck v Southern Countries Deposit Bank (1889) 2 TLR 400; Barker v. Lavery (1885) 14 QBD 760. In the Winchester Cigarette Case (supra) at 648 Lord Justice Hobhouse put it “The Appellant has to show some special circumstances which took the case out of the ordinary.”


[26] That summary was cited with approval by this Court in Prem Singh v. Krishna Prasad and Anor. CBV0001.02S, 25th April, 2002.


[20]. Barker v. Lavery[14] was in a property dispute. The defendant against whom a costs order had been made appealed to the House of Lords. He then applied to the Court of Appeal for a stay in respect of the costs order. He offered payments into Court of the full amount and expected a stay to be granted on these terms. The Lord Chancellor, the Earl of Selborne at page 769 asked in argument:

“....Are there any circumstances in evidence to show that the plaintiff, if he is defeated in the House of Lords, will be unable to pay back the money levied by execution against the defendant?”


[21]. Then Lord Selborne gave a succinct judgment at page 770:


“......the defendant is not entitled to have the application granted as a matter of course. Evidence ought to have been adduced to show, that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords. As to the request for time to make an affidavit about the plaintiff’s means, we cannot accede to it; those, who apply for a stay of execution, must come before us prepared with all necessary materials.”


[22]. Atkins v. Great Western Railway[15] was most likely was a personal injury case. A civil jury had awarded the plaintiff 350 pounds against the Great Western Railway.

Counsel for the railway company’s grounds for a stay were:


“that a great deal of prejudice had been imported into the case and that these were the strongest grounds of appeal.”


[23]. Lord Esher M.R. dismissed the application, followed Barker v. Lavery and dismissed the applications robustly (at page 400):

“The Master of the Rolls said that he would not undertake to say that the Court of Appeal would never listen to what happened at the trial in order to see whether they would grant a stay of execution, but, as a general rule, the only ground for such a stay was an affidavit showing that if the damages and costs were paid there was not reasonable probability of getting them back even if the appeal succeeded. He would not say that the Court would not interfere for some other reason, but that there were strong grounds for an appeal was no reason, for no one ought to appeal without strong grounds for doing so. In Barker v. Lavery [1885] UKLawRpKQB 32; (14 QBD, 769) the Court enunciated that rule when Lord Selborne, then Lord Chancellor, was present, and he was precisely of the same opinion. The application should be refused.”


[24]. I have already formed the view that declining a stay would not render the appeal nugatory. The respondent took one month and eight days to apply for stay of execution. The respondent did not show any urgency to apply for stay, so what prejudice might be suffered by the respondent must be questioned.

[25]. I proceed on the assumption that declining a stay would not render the appeal nugatory. The respondent in paragraph (9) of the affidavit in support says:

“ That I am largely prejudiced in this matter where the dwelling I built for me and my family use, I have unable to use for my benefit for more than 1 year, I am unable to access to my dwelling for more than 1 year, I used my hard work earned money to erect the said dwelling and keep it proper however, plaintiff who has not done any single work, repair or have ever assisted me in up keeping of the said swelling is benefiting for free form my dwelling.


[26]. There is virtually no evidence in affidavit form to show that if a stay is not granted, the respondent will face irretrievable loss. The execution in this case is payment of a sum of money. In that regard, I found authority in the case of Iftakhar Iqbal Khan v. Michael Fenech[16]. In this case the supreme Court of Fiji said;


“Execution in this case is payment of a sum of money. Only in the rarest of cases is that sufficient to justify a stay as subsequent success in the appeal will be implemented by repayment to the appellant. This is not a case of performance or restraint of some action or destruction of property which will irreversibly change the status quo and render a successful appeal nugatory.”


[27]. There is no evidence in an affidavit form to support that the applicant would not be financially capable of returning the compensation paid to him if the appeal is successful.

[28]. I am far from satisfied that the proposed grounds of appeal raised an arguable issue; and so, even if a stay is granted, the respondent will still have to pay compensation to the applicant. I also note that the respondent has, by his action, been able to hold up execution of the Judgment for ten (10) months [07.11.2021 to 09.09.2022]. I do not consider that the applicant after already having waited for eleven (11) months [02.11.2020 to 08.10.2021) to obtain relief should be required to wait for another year. Any delay in obtaining the fruits of judgment is prejudicial.

[29]. In my view, the overall balance of convenience favours the applicant. The court finds that the factor of the degree of prejudice to the applicant does count against the respondent’s application for stay. I have come to the clear conclusion that the applicant will suffer greater prejudice (if the application is allowed) than the respondent (if the application is refused).

Grounds of Appeal


[30]. The respondent says that he has meritorious grounds of appeal. Counsel for the applicant takes issue on this point and says that the respondent has no meritorious grounds and the appeal is designed to delay the applicant in enjoying the fruits of the judgment.

[31]. It is not my function to assess the actual merits of the appeal. This Court is required to consider the bona fides of the respondent in the prosecution of the appeal and whether the appeal involves a novel question of some importance. It would be wrong for this Court, on this application, to say anything that indicates any view on to the merits of the appeal, because the judgment is the subject of appeal to the Court of Appeal, and will have to be heard and dealt with. The issue of ‘novelty’ is not crucial.

[32]. In the illuminating judgment of Resident Justice of Appeal, William Marshall, in A.G. of Fiji and Ministry of Health v Loraina Dre[17] http://www.paclii.org/fj/cases/FJHC/2020/173.html - fn 18, contained the very significant passage following;

The heading of note 59/13/1 is “When will a stay of execution be granted”.


I set out only the parts of this note that are relevant to the present discussion.


“An appeal does not operate as a stay on the order appealed against, except to the extent that the Court below, or the Court of Appeal (or a single Judge of the Court of Appeal otherwise directs (O.59, r.13(1) 9a); see also World Trade Centre Group Ltd & Another v. Resourceful River Ltd & Another [1993] H.K.L.Y. 847; and Re Schindler Lifts (H.K.) Ltd v. Dickson Construction Co. Ltd [1993] H.K.L.R. 45). It follows that service of notice of appeal and setting down the appeal does not, by itself, have any effect on the right of the successful party to act on the decision in his favour and to enforce the order of the Court below. If an appellant wishes to have a stay of execution, he must make an express application for one (see further Para. 59/13/5 (below)). The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal: World Trade Centre Group Ltd & Another v. Resourceful River Ltd & Another; Civ. App No. 70 of 1993, May 12, 1993. That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted. See also Asha Harskishin Premsingh v. Harskishin Isarsingh Premsingh Kishinani M.P. No. 3436 of 2000, November 12, 2000, unreported. Neither the Court below nor the Court of Appeal will grant a stay unless satisfied that there are good reasons for doing so. Unless a stay can be justified by good reasons, one will not be ordered (Star Play Development Ltd v. Bess Fashion Management Co. Ltd, unreported, HCA No. 4726 of 2001, May 28, 2002: and see Wenden Engineering Service Co. Ltd v. Lee Shing Yue Constructions Co. Ltd, unreported, HCCT No. 90 of 1999, July 17, 2002, [2002] H.K.E.C. 1059). The Court does not “make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled”, pending an appeal (The Annot Lyle (1886) 11 P.114 at 116, CA; Monk v. Bartram [1891] 1 Q.B.346]....


.....Where the appeal is against an award of damages, the long established practice is that a stay will normally be granted only where the appellant satisfies the court, that, if the damages are paid, then there will be no reasonable prospect of his recovering them in the event of the appeal succeeding (Atkins v. Great Western Ry Co. (1886) 2 T.L.R. 400, following Barker v. Lavery (1885) 14 Q.B.D. 760, CA; this rule applies equally to Admiralty cases, see: The Annot Lyle, above, at 116). ......”


(Emphasis added)


[33]. The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal. That hurdle is higher than that of chances of success for considering whether leave to appeal should be granted.

THE PROPOSED GROUNDS OF APPEAL


  1. THAT the Learned Judge erred in law and fact by in making findings in disputed facts whereby denying an opportunity to appellant to challenge veracity of the same through cross examination and calling and adducing evidences via witnesses contradicting the same as follows:
    1. When the learned Judge concluded that the Appellant/Respondent threatened the Respondent to leave the house and that the appellant with another 12 people came to Respondent house to evict him and his family forcefully.
    2. When the Learned Judge concluded that Chief of Tacirua namely Sulliasi Naculai and Jekope Railevu drafted the letter for the sole purpose to assist Appellant to evict it.
    1. That the Learned Judge erred in law and in fact by concluding that the appellant was behind the unlawful eviction and was physically present to evict respondent.
  2. THAT the Learned Judge erred in law and in fact by concluding that the Respondent did not have any other remedy available with him and that Fijian Consumer and Competition Council and Fiji Police did not assist the Respondent/ Applicant which has led the Learned Judge to wrongfully interpret the Section 44 (1) and (2) of the Constitution of the Fiji Islands, when in fact all avenues were available which assisted the Respondent.
  3. THAT the Learned Judge erred in fact by concluding that the Appellant shall pay to the Respondent the sum of $20,000.00 (Twenty thousand dollars) a when no such claim of the said amount was made by the Respondent in his application and argument and no proper assessment and or evidences had been adduced and or tendered in Court by the Respondent for the said claim which was subject to cross examination.
  4. THAT the Learned Judge erred taking into consideration the Appellant's submissions that damages could only be quantified and awarded upon the Court hearing the testimonies of the respective parties and giving weight where necessary.
  5. THAT the learned judge erred in making the findings of the damages contrary to the practice of civil litigation and civil jurisprudence and contrary to High Court Rules when there was no judgement entered against the Appellant for such damages awarded.

Ground One (01)


[34]. That the Learned Judge erred in law and fact by in making findings in disputed facts whereby denying an opportunity to appellant to challenge veracity of the same through cross examination and calling and adducing evidences via witnesses contradicting the same as follows:

  1. When the learned Judge concluded that the Appellant/Respondent threatened the Respondent to leave the house and that the appellant with another 12 people came to Respondent house to evict him and his family forcefully.
  2. When the Learned Judge concluded that Chief of Tacirua namely Sulliasi Naculai and Jekope Railevu drafted the letter for the sale purpose to assist Appellant to evict it.
  1. That the Learned Judge erred in law and in fact by concluding that the appellant was behind the unlawful eviction and was physically present to evict respondent.
[35]. The applicant alleged in his redress application that; (1) his right to housing and sanitation – section 35 of the Constitution (2) his rights to adequate food and water – section 36 of the constitution (3) his right to freedom from arbitrary eviction - section 39 of the Constitution (4) his children’s rights - section 41 of the Constitution (5) Rights of his disable mother – section 42 of the Constitution, were breached by the action of the respondent.

[36]. Rule 7 in the High Court [Constitutional Redress] Rule 2015, makes it clear that:

Except as otherwise provided in these Rules, the jurisdiction and powers conferred on the High Court in respect of applications made by any person in pursuance of either section 44(1) or 44(5) of the Constitution are to be exercised in accordance with the practice and procedure, including any rules of Court, for the time being in force in relation to civil proceedings in the High Court, with any variations the circumstances require.


[37]. Therefore, High Court [Constitutional Redress] Rules 2015 makes no specific provision for specific practice and procedure. Putting the matter shortly at this stage, it is the general provisions contained in the High Court Rules, 1988, which should be applied on an application to the High Court for redress under section 44(1) of the Constitution.

[38]. The applicant commenced proceedings by way of ‘Notice of originating motion’ filed on 02.11.2020.

[39]. I now advert my attention to the provisions in Order 38, Rule 2(3) of the High Court Rules, 1988 which is in the following terms;
  1. In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.

[40]. The respondent should have sought leave from the court under Order 38, Rule 2(3) to cross-examine the applicant on his affidavit. The respondent chose not to do so. The respondent was not precluded from making an application under Order 38. Rule 2(3). The tool was available to him. He chose not to make use of the tool. Therefore, I cannot see the logic behind the respondent’s argument that the learned Judge erred in law and fact by in making findings on disputed facts whereby denying an opportunity to respondent to challenge veracity of the same through cross-examination.

[41]. As I understand ground one, the respondent argues that the Judge erred in law and fact in making findings on the following disputed facts:
  1. Whether the respondent threatened the applicant to vacate the house?
  2. Whether the Chief of Tacirua drafted the letter for the sole purpose to assist the respondent to evict the applicant?
  3. Whether the respondent was behind the unlawful eviction.

[42]. I note that the applicant when framing the affidavit in reply to the affidavit in opposition of the respondent sworn on 16.12.2020 and filed on 21.12.2020 disputed the version alleged by the respondent, and in particular the applicant’s legal advisors drafting and setting affidavit in reply engaged and immersed themselves with the fact which are disputed by the respondent, and in so doing, ventilated such disputed facts in the affidavit in reply sworn and filed on 31.12.2020.

[43]. Therefore, ground One is not strong enough to have a stay of execution.

Ground Two (02)


[44]. That the Learned Judge erred in law and in fact by concluding that the Respondent did not have any other remedy available with him and that Fijian Consumer and Competition Council and Fiji Police did not assist the Respondent/ Applicant which has led the Learned Judge to wrongfully interpret the Section 44 (1) and (2) of the Constitution of the Fiji Islands, when in fact all avenues were available which assisted the Respondent.

[45]. The respondent is suggesting that alternative remedies were available for the applicant and thus the application for redress ought to have been refused.

[46]. The Learned Judge of the High Court in the High Court decision stated the following in respect of the same;

[30] The question whether an application for constitutional redress should be refused on the ground that the party seeking redress has an adequate alternative remedy depends on the facts of each case. The discretion conferred upon the court by section 44(4) of the Constitution must be exercised cautiously and the court must always consider whether the alternative remedy available to the applicant is adequate before refusing an application for constitutional redress. There are no set guidelines to follow in deciding whether a particular alternative remedy available to a party is adequate.

[31] In this matter the applicant and his family were arbitrarily evicted by the respondent and a group of people who supported him. The court cannot ignore severity of a matter of this nature and refused the application on the ground that the applicant has an adequate alternative remedy. | am of the view that this is not a matter which the court can refuse on the ground of availability of an adequate alternative remedy.

4.27. Additionally, the Constitution of Fiji 2013 stated the following;

44 (5) The High Court may exercise its discretion not to grant relief in relation to an application or referral made under this section if it considers that an adequate alternative remedy is available to the person concerned

[47]. I note that wording of section 44(5) is permissive. The court has a discretion to refuse relief in the circumstances provided for, but it is not obliged to do so. Further, the court has to make a distinction between cases where the allegations are frivolous and vexatious as to be an abuse of process of the court, and those where a human rights or fundamental freedom is contravened. In the case before me, the applicant and his family were arbitrarily evicted by the respondent and a group of people who supported the respondent. The present case falls easily into the latter. To reject the applicant’s application for redress because the applicant might have applied for relief from ‘Fijian Consumer and Competition Council’ would be to emasculate the protections and rights conferred by the constitution.

[48]. Therefore, ground number Two is not strong enough to have a stay of execution

Ground Three (03)


[49]. That the Learned Judge erred in fact by concluding that the Appellant shall pay to the Respondent the sum of $20,000.00 (Twenty thousand dollars) a when no such claim of the said amount was made by the Respondent in his application and argument and no proper assessment and or evidences had been adduced and or tendered in Court by the Respondent for the said claim which was subject to cross examination.
[50]. The respondent is arguing that the award of damages for breach of bill of rights guaranteed under the constitution was unfounded as same was not claimed in the application for redress.

[51]. The applicant in his application for redress had indeed sought damages, see prayer (6) of the application.

[52]. In paragraph (18) of Judgment delivered on 8.10.2021, the court concluded:

(18) From the above it is clear that the respondent has acted contrary to section 39 of the constitution and breached the applications rights guaranteed by the said section.


[53]. When a court concludes that the rights of a person guaranteed under Chapter 2 – Bill of rights of Fiji’ Constitution have been infringed by any person, the court turns to the question of remedy. The Fiji Court of Appeal in ‘The Proceedings Commission, Fiji Human Rights Commission v Commissioner of Police[18] reached the conclusion that the constitution envisages the court having jurisdiction to make an award for damages as “it considers appropriate to ‘redress’ contravention of bill of rights”.

[54]. The dual purpose of Bill of Rights is reflected in the fact that when there is a breach of human rights there are two victims. First, there is an immediate victim. The interest of that victim require the court to consider what, if any, compensation is done. But, because the breach also tends to undermine the rule of law and societal norms, society, as a whole becomes a victim[19] too.

[55]. Next, the respondent argues that no evidence has been adduced to court to award damages. Finally, the respondent argues that the court has not conducted a proper assessment before awarding damages to the applicant.

[56]. I do not accept this argument which in my view is fundamentally misconceived.

[57]. The applicant has adduced evidence before the court by way of affidavits sworn on 2.11.2020 and 3.12.2020 with regard to the actual loss of the applicant to make a compensatory award of damages.

[58]. The respondent contends that no proper assessment of damages have been conducted by J. Seneviratne.

[59]. I cannot accept the respondent’s proposition on assessment of damages for breach of bill of rights. The general principles for the assessment of damages in tort do not necessarily apply in a claim for damages for breach of bill of rights.

[60]. In Manga v Attorney-General[20] Hammond J emphasized that the remedies in tort and under the Bill of Rights should not be put on the same footing. There are substantive differences between private law and public law remedies. The High Court of New Zealand explained at pp. 81 – 82:

[124] Furthermore, the character of a public law claim differs substantially from that of a strictly private law claim.


[125] The private law proceeding is bipolar (between two parties); it is retrospective (it looks to events which have already occurred); right and remedy have historically been seen as intertwined; the dispute is very much self-contained; and the whole case is still essentially party-initiated and controlled.

[126] Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not "just" private: they have overarching, public dimensions. The context of such a proceeding necessarily changes, in at least three ways. First, the case is not a winner-takes-all kind of case. Damages are an economic concept. Bill of Rights cases routinely involve a rearrangement of the social relations between the parties, and sometimes with third parties. The object is to promote mutual justice, and to protect the weak from the strong. Secondly, the future consequences of such a case are every bit as important as the past, and the particular transgression. Thirdly, there is a distinct interface with public administration, and indeed, the governance of a given jurisdiction. (The classic article is still Chayes, “The Role of the Judge in Public Law Litigation” (1976) 89 Harv L Rev 1281.)

[61]. In R v Secretary of State for the Home Department, Ex-parte Greenfield[21] Lord Bingham noted that the Human Rights Act, 1998 (UN) is not a tort statute but had objects which were different and broader support for it being regarded as a public law remedy rather than a tort based remedy is also supported by the circumstance that the remedy is discretionary, whereas damages in tort are recoverable as of right.

[62]. This distinction has a significance. The general principles for the assessment of damages in tort do not necessarily all apply. In Anufrijeva v Southwark LBC[22], the Court of Appeal warned against drawing too close an analogy between a claim for damages under the Human Rights Act and a claim against a public authority in tort. But when assessing damages for breaches of human rights, the courts are free to derive guidance from law of damages in relation to torts[23].

[63]. Speaking of the Bill of Rights, Richardson J made this point succinctly in Martin v Tauranga District Court[24]. His Lordship said:

“.... The objective is to vindicate human rights, not to punish or discipline those responsible for the breach. The choice of remedies should be directed to the values underlying the particular rights. The remedy or remedies granted should be proportional to the particular breach and should have regard to other aspects of the public interest.”


[64]. John Miller in his article “Seeking compensation for Bill of Rights Breaches”[25] suggested a different perception:-

“The award is public law compensation not common law damages. The focus of the claim is on the breach of the rights not on the personal injury, and is similar to the approach adopted for exemplary damages claims. Such damages also focus on punishing the conduct of the wrong- doer rather than compensating the victim for the personal injury.”


[65]. A cause of action under the Bill of Rights does not duplicate the common law cause of action. As explained by Thomas J in “Dunlea v Attorney – General”[26]

“... the common law cause of action is a private remedy to redress a private wrong. The cause of action under the Bill of Rights is a Public Law remedy based on a rights in the nature of a Public Rights. The Crown’s liability is not vicarious as it would be in tort.

Its liability arises directly from the fact that in affirming fundamental rights in the Bill of Rights, the state has undertaken a constitutional obligation to respect, protect and vindicate those rights. Why, then when the state has failed in that obligation should that essentially different public law remedy lie dormant if there is an equivalent common law, private law civil action, and only arise from its torpor if and when there is no such cause of action? What is there in this public law remedy which would restrict it to such a back-up role? How can it be said that the elements of this public law remedy will only exist when the plaintiff has no common law remedy but when he or she has such a remedy?

Are we to pretend that the public law factors in respect of a breach of the Bill of Rights only arise where by fortuitous happenstance there is no equivalent private law remedy?


Is there some policy consideration which is yet to be disclosed?”


[66]. It is in light of these considerations, I conclude that this ground of appeal is not strong enough to grant a stay of execution.

Ground Four (04)


[67]. That the Learned Judge erred taking into consideration the Appellant's submissions that damages could only be quantified and awarded upon the Court hearing the testimonies of the respective parties and giving weight where necessary.

[68]. As noted in ground (3), the applicant has adduced evidence before the court by ways of affidavits sworn on 2.11.2020 and 3.12.2020 as to deprivation of liberty, the injury to feelings (the indignity, mental suffering, disgrace, humiliation and loss of social status) and the injury to liberty (the loss of time to the applicant himself considered from a non-pecuniary point of view) to measure compensatory damages. In relation to constitutional redress, the practice and the procedure is summary and the notice of motion for redress shall be heard mainly on affidavit evidence filed in court unless the respondent makes an application pursuant to Order 38, Rule 2(3) to hear the notice of motion for redress on oral evidence. As noted above, the respondent chose not to invoke the provisions of order 38, rule 2(3) and as a result the respondent cannot now in appeal attach to the Judge an obligation to fulfil the role of a counsel.
[69]. It is in light of all these consideration, I conclude that the ground of appeal Number Four is not strong enough to grant a stay of execution.

Ground Five (05)


[70]. That the learned judge erred in making the findings of the damages contrary to the practice of civil litigation and civil jurisprudence and contrary to High Court Rules when there was no judgement entered against the Appellant for such damages awarded.

[71]. That way of putting the matter, tends with respect, to look at the issue from the wrong end.

[72]. As noted above, when a court concludes that the rights of a person guaranteed under Chapter 2 – Bill of Rights of the constitution have been infringed by the state or any person, the court turns to the question of remedy, i.e damages. It is entirely unnecessary and inappropriate to enter judgment against the respondent. It is not a liability in tort. Redress is a public law remedy and not a form of liability for tort. The word ‘redress’ in its context bears its ordinary meaning of reparation or compensation, including monetary compensation; and the claim was not a claim for private law damages in tort, but was a claim in public law for compensation.

[73]. It is in light of these considerations, I conclude that this ground of appeal is not strong enough to grant a stay of execution.

CONCLUSION


I conclude that the respondent’s circumstances are not sufficiently exceptional for the grant of stay relief pending appeal.


ORDERS


(1). The application for stay of execution of the Judgment is refused.


(2). I make no order as to costs.


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

Jude Nanayakkara

[Judge]


High Court - Suva

Friday, 9th September, 2022


[1] CBV 0009.11, January 2010
[2] FCA, Civil Appeal No. ABU 0011 OF 2004S
[3] [1999] 13 PRNC 48, at p50
[4] [1993] 7 PRNC 200
[5] [2008] EWCA Civ 1028
[6] [1886] 11 PD, 114, 116 CA
[7] [1891] 1 QB 346
[8] [1974] 20 FLR 15
[9] Barker v Lavery (1885) 14 QBD 769
[10] Brennan J in Jennings Construction Ltd v Burgundy Investments Pty Ltd No – 1, (1968) 161 CLR 685
[11] Linotype – Hell Finance Ltd v Baker (1992) 4 All ER 887
[12] [1879] UKLawRpCh 169; [1879] 11 Ch. D 576 CA
[13] CBV 0010 (20.4.2010)
[14] [1885] 14 QBD 760
[15] [1885–86] 2 Times Law Reports at page 400
[16] CBV 0002.05S (04.05.2005) Ward JA
[17] Miscellaneous Action No. 13 of 2010, decision 17.02.2011
[18] [2006] FJHC 75
[19] See, Shelton, Remedies in International Human Rights Law, page 44, 2nd Ed, 2005, p292.
[20] [2002] 2 NZLR 65 at 81
[21] [2005] 1 WLR 673
[22] [2004] QB 1124
[23] Dunlea v A.G [2000] NZCA 84; (2000) 3 NZLR 136

Marcic v Thames Water Utilities Ltd No. 2(2001) 4 ALL ER 326

R (Bernard) v London Borough of Enfield (2003) HLR 4

Human Rights Law and Practice [1996] 211 at 212 P
[24] [1995] 2 NZLR 419at P 428
[25] Human Rights Law and Practice (1996) 211 at 212 P
[26] [2000] NZCA 84; [2000] 3 NZLR 136 (CA) at p154

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