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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CENTRAL DIVISION
CIVIL JURISDICTION
Civil Appeal 55 of 2023
(Civil Action No. HBC 171 of 2019)
BETWEEN:
RAAJESHWARAN NAIR
DEFENDANT/APPLICANT
AND:
RAMESHWARAN NAIR
PLAINTIFF/RESPONDENT
Date of Hearing : 9th October 2023
For the Plaintiff : Mr Chand A.
For the Defendant : Ms Maharaj K.
Date of Decision : 20 December 2023
Before : Levaci, SLTTW Acting Puisne Judge
INTERLOCUTORY JUDGMENT
(APPLICATION FOR STAY PENDING APPEAL)
PART A - BACKGROUND
PART B: AFFIDAVITS
‘4. That the subject property is where I reside in and the same is an inherited property which I hold immense sentimental value. Based on this, I have made substantial financial contributions towards maintenance and upkeep of the same for eighteen (18) years and have further secured the same from a Mortgagee Sale Proceedings between the years 2010 to 2017 (Civil High Court Action No: 200 of 2010). I annex hereto and mark the letter “B” a copy of the Term of Settlement dated 10/08/17 in relation to the afore-mentioned matter, wherein I made substantial payment towards the compliance of the Terms of Settlement with no assistance from the Respondent whatsoever towards legal fees or towards payment to the Bank and therefore it is highly prejudicial/injurious/unfair to me that my direct contributions to retain and protect the subject property was not accounted for by the Learned Trial Judge in arriving at a decision for proceeds to be equally shared between the parties. That by virtue of the said judgment, the Respondent benefits to the detriment of the Appellant and therein lies the special circumstances in this matter.
5. That based on the above commitment and my efforts highlighted, I wished to retain my inherited family property and therefore sale of the same to third parties would be an irreversible prejudice. There were no grounds for urgency for sale to third parties indicated by either party during trial.
6. I was unrepresented during trial as my Counsel Mr. Annand. Singh of Messrs. Singh & Singh was deceased overseas and his law firm was in receivership. Therefore, I had difficulty obtaining my files appointing new Counsel on time to represent me for the trial. Furthermore, the Respondent failed to appear during trial day and despite this, matter still proceeded for hearing and judgment was delivered. Counsel for the Respondent did seek vacation of hearing however the said request was not granted.
8. I am advised by my solicitors and verily believe that the main grounds upon which a stay pending Appeal is sought are as follows:
(a) The chances of Appeal succeeding is high and based on meritous grounds.
(b) The Respondent will not be injuriously affected should stay be granted as he had left the Country in early 2009 and since then has shown zero interest towards management of property and its related debt obligations to the Bank (Mortgagee). Furthermore in the event stay is granted, both parties who are biological brothers have the opportunity to mediate and come to a resolution which option will not remain if stay is refused and matter proceeds to sale to third parties.
(c) The Appeal will render nugatory if stay is not granted as the subject property would be sold to third parties and the Appellant would not be able to recover the monies he had contributed towards the property over the years.
(d) There are important questions to be tried, that is whether the Respondent is entitled to 50% from sale proceeds based on his complete lack of involvement in the management of property and failing to adhere to bank repayment obligations etc since he left the property in October 2008.
(e) The Appellant will suffer serious prejudice and irreversible harm should stay not be granted for instance pursuant to Order (vi) in the said judgment, if neither party is in a position to purchase the property, the subject property would proceed to be sold by way of public auction and the property would be awarded to the highest tenderer and in this situation, the bank (Mortgagee) could then take legal proceedings against the Appellant for the balance of monies owed to it should the sale be for a value lower than the balance debt figure.”
5. That the Defendant in this action is my biological brother. I and the Defendant, we are registered proprietors of the said subject property as to one undivided half share each.
6. That in response to paragraph 3 of the said Affidavit, I do not deny the said paragraph and say that apart from the sale of property orders, there are many other orders that Court has granted to be abided with Sale of the property order is just one part, however, prior to that there are orders given to both registered properties to purchase the property in full.
7. That in response to paragraph 4 of the said Affidavit, I make response as follows –
i. The subject property is currently occupied by the Defendant for his best absolute use and benefit, where he is taking full advantage of my share as well leaving me being deprived and prejudiced on my share of the said property.
ii. I and Defendant both share equal sentimental values in the said property.
iii. Since, Defendant was occupying the said property, the Defendant has been taking all the rental income generated from the said property, the Defendant had not been allowing me to reside and contribute towards the said subject property, hence Defendant had no choice but to carry out renovation n upkeep the property and pay Mortgage from the rental income that are generated in total. However, Defendant has not been forking money out from his pocket. Defendant was using and utilizing the rental income that is generated from the said subject property, for which I also had half shares on the rental income.
iv. The terms of settlement and the case which the Defendant is referring to, the Defendant had used the rental monies to pay some Mortgage. However, it has been brought to my attention that the Defendant had infact failed to honor the Agreement to pay in full as agreed. The Defendant had been very rude and refusing to share the outcomes and discuss with me regarding cases and about the subject property, however, the Defendant had failed to do so. The Defendant had been very rude and refusing to share the outcomes and discuss with me regarding cases and about the subject property, hence, all times I had been left out without knowing, as to what is transpiring in regards to the said property.
v. I further say that the Learned Trial Judge had considered each and every factors of the said case before getting into the conclusion of this matter. By law I have full right for equal shares. The Defendant is feeling that he has upper hand then me at the moment regarding the said subject property, is due to the sole reason, the Defendant is currently occupying and has control over the said property, which gives him an advantage to take care of all errands regarding the property and then use it as his tram – card to show his emotions and gain sympathy. Defendant forget the fact that since, he has taken such responsibility on his shoulders on his own willingness, then it does not mean that I shall be deprived from my own rights and equal shares. I can also carry out and do all those duties, take responsibilities which Defendant is doing, at the moment provided I have given the chance to do so.
8. That in response to paragraph 5 of the said Affidavit, the Defendant has shown his willingness to purchase the said property and has admitted the same by way of his Affidavit, the Learned Judge has in his orders paragraph (v) of its judgment has given an option to either of us to purchase the said property. Hence, I do not see any reasons as to why there should be a stay order granted since there is already an order for either party to purchase. Further, the Defendant agrees to purchase my share. However, I want a proper and independent valuation be carried out and the distribution be carried out as per the said court order.
9. That in response to paragraph 6 of the Affidavit, the Defendant had all the opportunity to engage another solicitors to proceed with this matter however the defendant chose not to do so. The Defendant had all the opportunity available here with him. In Civil Action No HBC 54/2018, in which, the Defendant himself is the Plaintiff had engaged the services of Lal Patel Bale Lawyers to represent him, hence, the Defendant had all opportunities to engage the services of lawyers who could have represented him. The Defendant should not now be raising unreasonable excuse that I failed to appear during trial. I was not present in Court, the Court proceeded with the earing of the matter. My counsel on behalf of me, submitted what I had instructed on and what was available to him. The same opportunity the Defendant had. I was advised that Defendant presented his case very well and covered all aspects of the gist of the matter. Hence I do not see any reasons the Defendant should be raising such issues. The Court proceeded with hearing and delivered its judgment based on the merits of the application.
10. That in response to paragraph 7 of the said Affidavit, I deny the said paragraph and say that when the Defendant filed the Notice and Grounds of Appeal and tried to serve on Amrit Chand Lawyers, who had no instructions to accept service of the Appeal documents as the appeal document’s needs to be served personally on me to decide which solicitors shall I be engaging top represent me, Amrit Chand lawyers respected by instructions and followed it by not accepting it. Defendant tried to serve on Amrit Chand lawyers however, the service was not accepted and the Defendant through its agent, threw the documents on the floor of Amrit Chand lawyers and fled the office. The Affidavit of Service filed is wrong and is misleading for which I an Amrit Chand lawyers will now lodged with police complaint against the Defendant as well as the registered bailiff namely Jope Tikoisuva. The said Affidavit of service is totally wrong. Amrit Chand lawyers had then written to the Fiji Court of Appeal and also Chief Registrar advising of their difficulties and they have no instructions for service. (I annex hereto and marked as “Annexure 1”are the copies of emails and letter sent by Amrit Chand Lawyers to Fiji Court of Appeal and the Chief Registrars’ office).
13. There is no need for the stay to be granted as this stay will prejudice me a lot. The Court has awarded the judgment which I need to enforce and have it resolved. Based on the attached property valuation dated 2011 the monthly rental income from the property is $8, 500. The defendant has been occupying the top floor flat with estimated rental income of $1,800 per month. Over the last 14 years this equates to $303,400. Estimate rental income from the remaining 5 flats equate to $6,700 per month. Over the last 14 years this equates to $1,125,600. Assuming 90% occupancy rate this rental income would be $1,103,040. I annex hereto and mark as Annexure 6 Property valuation 2011).
14. The orders granted by the learned judge is very simple. There should not be any issue for defendants to prove me with the accounts for rental income. The records must be kept by the defendant as the defendant had all these time knowledge that since the said property is under both of our names, these records will be required to be produced once day. Hence, these order granted by the court is very basic which does not require to be stayed.
15. Inspection of the property order is also very simple and basic order. I am the registered proprietor as to one undivided half share hence I have full authority and opportunity shall be given to me for property inspection. I do not see there shall be any issue for not allowing me to inspect.
16. Selling the property. The Court has followed the law and has given the order as to what the law states. The defendant had not at any time shown his genuine interest to purchase the said property for a fair value and neither willing to sell his share. Hence, based on what the law stated for this type of application, the Court has awarded the orders accordingly. I do not see any reason for it to be stayed.
17. The Valuer shall be appointed. Since, in his affidavit, Defendant has stated that he is willing to purchase the said property, through valuation, we can ascertain at least the current valuation of the property hence, valuation is needed to ascertain the value and for further settlement talk.”
6. That I deny the contents of paragraph 7 of the Respondents Affidavit and repeat paragraph 4 of my Affidavit in Support of the Stay application and further state as follows:
7. That I deny the contents of paragraph 9 of the Plaintiff/Respondent’s Affidavit state that I was unrepresented on the date of trial due ot the demise of my counsel, Mr Anand Singh. In the given short time in obtaining all documents and file from the late Mr Anand Singh’s office, I was not able to engage another counsel. I agree that I had engaged Lal Patel Bale Lawyers for another civil matter however they were not available to take my instructions on this trial due to non-availability of lawyers. I also state that when the trial of this matter was fixed some 4 months prior, my counsel shad made applications in Court to have the Plaintiff/Respondent available at trial for cross-examination and the same was directed by the Court due to the serious allegations made by the Plaintiff/Respondent however he failed to appear personally for trial. I believe that this was deliberately done to evade being cross-examined.
8. That I deny paragraphs 10 and 11 of the Plaintiff/Respondents Affidavit and state that the said Notice and Grounds of Appeal was served at the Plaintiff/Respondents lawyers office being Amrit Chand Lawyers who represented him at the High Court proceedings. This was done due to the difficulties in obtaining his personal address for personal service. The registered bailiff, Mr Jope Tikoisuva attempted service an upon refusal to accept the service, Notice of Grounds of Appeal was left at the counter of Amrit Chand Lawyrs and the same has been endorsed and annexed to the Affidavit of Service. Amrit Chand Lawyers appeared as friend of Court when the Summons for security of costs was called before the Chief Registrar and they were directed by the Chief Registrar to advise the address of the Respondent which to this date has not been done. The Plaintiff/Respondent has at many occasions evaded service of documents and correspondences by withholding his address and contact details. I have recently come to know the Plaintiff/Respondent had changed his name to Romesh Warran in his attempt to evade proceedings and financial liability.
9. That I strongly deny the contents of paragraph 12 of the Plaintiff/Respondents Affidavit and stated that I believe I have merits of success in the Grounds of Appeal that I have filed at the Fiji Court of Appeal and if the Plaintiff/Respondent wishes to defend the Appeal then he may file the appropriate documents in Court of Appeal.
10. That I deny the contents of paragraph 13 to 20 of the Plaintiff/Respondent’s Affidavit and say as follows:
PART C: LAW ON APPLICATION FOR STAY PENDING AN APPEAL
Stay application
“15. I agree with this Court’s decision in Rajendra Chaudhary v Registrar of Titles (supra) and more so in this instance where the Appellant have already filed their stay application in the High Court and is awaiting a decision. In the Aman Singh case, there had been no filing of such summons in the High Court and given the extraordinary circumstances of the case, the Court of Appeal intervened in the exercise of its discretionary powers.
16. This Court will not entertain a parallel proceedings seeking the same relief as that of the court below. At the very least, it tantamount to abuse of process” (underlining my emphasis)
“[14] The factors that should be exercised by this Court in an application such as is presently before the Court were identified in Natural Waters of Viti Ltd -v- Crystal Clear Mineral Water (Fiji) Ltd (ABU 11 of 2004 delivered on 18 March 2005). Generally a successful party is entitled to the fruits of the judgment which has been obtained in the court below. For this Court to interfere with that right the onus is on the Appellant to establish that there are sufficient grounds to show that a stay should be granted. Two factors that are taken into account by a court are (1) whether the appeal will be rendered nugatory if the stay is not granted and (2) whether the balance of convenience and the competing rights of the parties point to the granting of a stay.”
(c ) Whether the injurious party will be affected by the stay;
(d) the bonafide of the applications as to the prosecution of the appeal;
(e) the effect on third parties;
(f) novelty and importance of questions involved;
(g) the public interest in the proceeding;
(h) The overall balance of convenience and the status quo.”
PART E: ANALYSIS
(i) whether the appeal will be rendered nugatory if the stay is not granted
“The discretion conferred by r.12 to order the stay of proceedings is to be exercised only where special circumstances exist that justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Special circumstances justifying a stay will exist where it is necessary to prevent an appeal, if successful, from being nugatory. Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering monies paid pursuant to the judgment. Special circumstances are not limited to that situation and they will exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.”
“I think sometimes assumed that special circumstances have to exist before a Stay can be granted in a civil process but this is not an inflexible rule.”
(ii)Whether injurious party will be affected by the stay
“[17] Counsel for the appellant argued that the exercise of the court’s discretion under section 119 of the Property Law Act envisaged first and foremost, the contemplation by the court of the partitioning of the jointly owned property, before other options including sale is considered. He refers to the set-up and wording of the Act, firstly the leading of the division that reads:
“Part XIII Partition of Land and Division of Chattels”
and the sub-heading of section 119 that reads:
“In action for partition court may direct land to be sold,” and specifically, section 119 (1) leading on to sub-section (2) under which this proceedings began, categorically states:
“119 (1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or, upwards, in the land to which the action relates requests the court to direct a sale of the land and distribution of the proceeds, instead of a division of the land between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale accordingly.
[18] The appellant submitted that the court had failed to consider the partitioning of the property before it proceeded to direct the sale. This especially so, given that the appellant had submitted a subdivision proposal for the property, drafted by a registered surveyor agreed to by the both parties. The respondent did not favour the partition the partition and independently sought the sale of the property instead. For his part, the appellant favoured the partitioning. It is for the court upon weighing all the evidence, before exercising its discretion, to decide what is beneficial and in the best interest of all the parties.
[19] While I agree with the court’s interpretation in Thomas v The Estate of Eliza Miller & Tess Golding [1946] 42 FLR 268, that a section 119 proceedings need not always begin by an action for partition, the relevant consideration is, should not the court always raise it as a viable, if not a first, option before sale.
[20] To the extent that the proper interpretation by the court of the provisions of section 119 and especially as it relates to partitioning before order for sale is made, I believe is an important legal issue, and lends some support to the merit of the appeal.”
Legal Principle of Section 119 of the Property Act
“I agree with Mr. Gago's submission that in s. 119(1), (2) and (3) provision is made for three separate kinds of action which can be maintained in relation to any property. I reject the defendants' contention that land can only be sold on a court order if there is "an action for partition and not otherwise", and therefore that an application under s. 119(2) must be based on an "action for partition".
In England under the old law the Court had no power to decree sale instead of partition until the Partition Act, 1868 when the court was given power to order a sale. The views of the holders of the greater share prevailed, unless the minority could prove to the Court that their view was the most beneficial. Rules were laid down for the guidance of the Court which are similar to the provisions under our section 119(1), (2) & (3). In all these cases the Court had a discretion.
Where a large estate had to be divided among a few people, the expense was not heavy; but many cases have occurred where a small estate has been given (generally by Will), as in the case before me, to a very large number of persons, some of whom cannot be found, and in these cases the expenses were out of all proportion to the value of the estate. This produced numerous inconveniences and absurdities such as for example a house which was partitioned by actually building a wall up the middle (Turner v Morgan [1803] EngR 490; (1803) 8 Ves 143, Lord Eldon LC). This led to the passing of the Partition Act 1868 (31 & 32 Vict. C. 40) and the Partition Act 1876 under which the Court was given jurisdiction to order a sale of the property and distribution of the proceeds in lieu of making an order for partition. But since the Law of Property Act, 1925 the necessity for sale by the Court no longer exists in England, since, whenever several persons share land beneficially, it is now vested in trustees on trust for sale. Hence the Partition Acts no longer enable the Court to order a sale in a partition action but an action for partition can apparently still be brought, if occasion arises.
This is not a partition action. The subject matter of this application is not based on 119(1) which requires the court to direct a sale of the land and a distribution of the proceeds but there the applicant's interest has to be "one moiety" before that can be done. A "moiety" is defined in Atu [1](supra) to mean "a half". Therefore no action for partition of land and subsequent sale can be brought by an applicant where interest in the property is below one-half of the total interests in land. Such is the case here.
Here the Plaintiff is neither applying for a partition nor a distribution of the proceeds. The word "partition" is described in Halsbury 1st Ed. Vol 21 at p. 810 as:
"The legal term 'partition' is applied to the division of land tenements and hereditaments belonging to co-owners and the allotment among them of the parts so as to put an end to community of ownership between some or all of them."
It is further stated in Halsbury that "the co-owners may be joint tenants, tenants in common or co-partners".
The application here is under s. 119(2) under which sale of land under the direction of the court may be ordered if such sale is considered by the court to be "for the benefit of the parties interested" for the said section 119(2) clearly specifies the circumstances under which the Court could make an Order for sale notwithstanding the dissent or disability of any other party provided that "the sale would be for the benefit of the parties concerned". In the definition of "land" is included "all estate and interests in land" (section 2 of the Act).
In any consideration of the issue in this case the court acts on evidence and decisions will have to be reached on the basis of the evidence. On the affidavit evidence the Plaintiff has proved and satisfied the Court that s. 119(2) is available to her.
In coming to this conclusion I have been persuaded by the observations made by Brooke J.A. in his judgment in Re Dibattista et al. and Menecola et al. (Ontario Court of Appeal 74 DLR (4th) p. 569). There he refers to Cook v. Johnston (1970) 2 OR 1 (HCJ) where Grant J considered the question of when and in what circumstances the court may order a sale. I quote below what Grant J said in his judgment at pp. 1-2:
"In Morris v. Morris (1917) 12 OWN 80 Middleton, J., in dealing with a similar matter stated at p. 81: "Sale as an alternative for partition is quite appropriate when a partition cannot be made.”
(iv) the effect on third parties;
(vii) The overall balance of convenience and the status quo.
Costs
Orders of the Court:
.......................................................
Mrs Senileba LWTT Levaci
Acting Puisne Judge
[1]9. 1 In Atu v Atu [1983] 29 FLR 100 the Court considered a similar application and discussed that:
"...Section 119(1) of the Property Law Act provides as follows:
"Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates requests the court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale accordingly."
Subject to one issue Mr. Knight raised which I will consider later, unless the Court sees good reason to the contrary, it is mandatory to direct sale of the property since the plaintiff's interest in the property is not less than one moiety.
A 'moiety means a half and the issue raised by Mr. Knight is that section 119 is not available to the plaintiff because he is a joint tenant and not a tenant in common entitled to a moiety or upwards of the property.
It is not necessary to enter upon a description of joint tenancies and tenancies in common because partition of land by the Court is available to persons having concurrent interests whether jointly or in common in a property.
Halsbury Laws of England Volume 21 first edition at p. 810 when describing the legal term "partition" says:
"The legal term 'partition' is applied to the division of lands, tenements and hereditaments belonging to co-owners and the allotment among them of the parts so as to put an end to community of ownership between some or all of them."
In a note regarding co-owners, the author says:
"The co-owners may be joint tenants, tenants in common or co-partners."
The plaintiff is entitled to an order for sale of the property unless the Court considers there are good reasons to the contrary.”
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