Carmel v Satya [1997] SBHC 111; HCSI-CAC 12 of 1997 (19 November 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 12 of 1997

ANTHONY CARMEL

-v-

NARAYAN SATYA

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 12 of 1997

Hearing: 13 November 1997
Ruling: 19 November 1997

R. Teutao for Appellant/Applicant
A. Radclyffe for Respondent

Interlocutory Judgment

MURIA CJ: The appellant brings this application for stay of execution of the judgment of the High Court made by Palmer J on 12 August 1997. By that judgment, the appellant’s claim was dismissed and ordered inter alia, to pay to the respondent rent arrears in the sum of $21,000.00 for the period 1st December 1995 to 30th 1996; to pay mesne profits at the rate of $3,000.00 per month from 1st July 1996 until possession; and give up possession of the property to the respondent.

By his Notice of Appeal filed on 10 September 1997, the appellant appealed against the whole of the judgment, including the order, of the High Court. In a nutshell, the appellant’s contention in the Court of Appeal will be, as it was before the High Court, that he has a binding contract for sale and purchase of the property in the fixed-term estate comprised in Parcel No. 191-029-114. Pending the hearing of his appeal by the Court of Appeal the appellant now seeks a stay of execution of judgment and order of the High Court.

The question of stay of execution or of proceedings pending appeal is dealt with under Rule 11 (5) of the Court of Appeal Rules, 1983 where it is provided as follows:

“(5) Except so far as is otherwise ordered under this Rule or by the Court or a judge:-

(a) an appeal shall not operate as a stay of execution or a stay of any proceedings pursuant to a decision of the High Court; and

(b) no intermediate act or proceeding shall be invalidated by an appeal.”‘

Thus filing a notice of appeal to the Court of Appeal does not operate automatically as a stay of execution or of proceedings under a decision of the High Court. The Court or a judge, however, has the power to order a stay of execution or of any proceedings pending on appeal. That power is undoubtedly discretionary and allows the court or a judge to take into account matters such as deprivation of a successful litigant of the fruits of his litigation as well as seeing that a party exercising his undoubted right of appeal, if successful, is not nugatory. As a general rule, therefore, the party applying must show that if damages and costs as well as any other payments as ordered were paid there is no reasonable possibility of getting them back if the appeal succeeds.

This general principle is set out in Barker -v- Lavery [1885] UKLawRpKQB 32; (1885) 14 QBD 769 where it was pointed out that an applicant is not entitled to have an application to stay execution granted as a matter of course. The applicant must show that the respondent to the appeal would not be able to repay the amount levied by execution if he succeeds on appeal. See also Atkins -v- G. W. Ry. (1886) 2 TLR 400.

In the present case the affidavit materials and the argument presented by Mr. Teutao in support of the application for stay of execution centered around the circumstances under which the respondent re-entered his house which was occupied by the appellant. Much of the matters deposed in the various affidavits relate to alleged conduct of police officers and the respondent which are alleged to be unlawful. But I feel the question in an application such as this, and particularly in this case, is not so much on the lawfulness or unlawfulness of the actions taken by the police and respondent on the day the respondent re-entered his premises but rather whether it can be shown upon the affidavit evidence that the respondent to the appeal will be unable to repay the amount to be levied by execution if the appellant succeeds. The conduct of the police officers and the respondent may have relevance in actions (if any) against those officers and the respondent for what they had done but has little or no relevance to an application to stay execution of a judgment. It may well be that the conduct of the police officers and the respondent on 13 September 1997, if substantiated, clearly fell below accepted standard expected of law enforcement officers and a reasonable person. It should not be condoned. The respondent’s conduct also as described in the affidavits was one that cannot be lightly considered. It certainly tells (if substantiated) of a person who has no regard for the rights and dignity of others. I need not say anymore on this as it may well be the subject of further action. But however unbecoming the conduct of those described, it is not a ground for staying execution of a judgment.

Counsel for the appellant sought to rely mainly on the alleged conduct of the police and respondent in this application. In so doing he failed to bring the applicant’s case in line with the principles I set out earlier in this judgment.

I have sympathy for the applicant in this case. He gave instructions to his former solicitor to file an appeal against the judgment of the High Court of 12 August 1997 soon after it was made. Had that been done, necessary actions could have been taken to avoid the event which occurred on 13 September 1997. But the Notice of Appeal was not filed until 10 September 1997 which was an eleventh hour action on the part of appellant (more correctly, on the part of his present solicitor). It must be pointed out to legal practitioners that last minute actions do not serve the best interest of their clients. Those who are usually mostly affected by last minute actions are the parties themselves, not so much their legal representatives. So as a matter of prudence, last minute rush to the court by legal practitioners must be avoided, whenever possible, so that their clients are afforded a just service from them.

I note, however, that on the affidavit of the appellant/applicant, on 12 September 1997 the respondent with the assistance of the police, was already taking actions to take possession of the property concerned. The police went to the house and asked the applicant if he was moving out of the house as ordered by the High Court. That was in the morning. In the afternoon of the same day, the police called on the applicant again, this time at his office. The applicant’s solicitor was present then and he explained to the OCS Central Police Station and Honiara Police Commander about the Notice of Appeal and the application for stay of Execution of the Judgment. Nothing else had been done. Clearly by then, in my view, both the applicant and his solicitor should have been on notice that the respondent with the assistance of the police intended to execute the order of the High Court. Despite the course of action now imminent to be taken by the respondent with the assistance of the police, nothing has been done by the applicant or his solicitor on that day apart from simply talking to the police officers. The next morning 13 September 1997 when the applicant was out at Tenaru, the police and respondent entered the premises, breaking open the doors and entered the house and removed the applicant’s belongings out from the house. The respondent took possession of the property. In the late afternoon of that day the applicant’s solicitor sought to have his application which was fixed for hearing on 9 October 1997, heard by the Court. This was already after the respondent moved into the property and the applicant moved out (forced to move out). The intention of the application for stay order at that time was really to allow the applicant to continue to remain in the property pending the determination of the appeal. In reality that purpose had already been defeated on 13 September 1997, and even if the Court were mindful to grant the order to stay execution if it heard the application in the evening of the 13 September 1997 it would in the exercise of its discretion refuse to grant the order.

This state of affairs is not comforting to the applicant but I feel the circumstances and the course of action adopted on his behalf did not support his case. As I have said the Court sympathises with the applicant but sympathy does not give the court reasons to decide otherwise than that which it has now decided.

The order of the Court will be:-

1. Application to stay execution of the High Court Judgment of 12 August 1997 refused.

2. Direct applicant’s appeal to be processed and have it listed for the coming Court of Appeal sitting if possible.

3. The sum of $32,000 in the Mr. Nori’s Trust Account be released and paid into Mr. Radclyffe’s Trust Account. Respondent to be paid what is due to him on undertaking that if appellant succeeds on issue of specific performance in the Court of Appeal, the appellant must be paid what is due to him.

4. Costs in action.

(GJB Muria)
CHIEF JUSTICE