Tori v Morris [2001] SBHC 177; HCSI-CAC 7 of 2001 (28 June 2001)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No: 007 of 2001

CLEMENT TORI, JACK WALE,
BRADLY BOENI, FERRIS FOLI
& EDNA JEOFFREY, & OTHERS

v

WAYNE FREDERICK MORRIS & BENJAMIN OF GILES PRICE
[AS SPECIAL MANAGERS OF THE ESTATE OF REX FERA
RECEIVER AND SPECIAL MANAGERS APPOINTED] & OTHERS

Before: F. O. Kabui, J.

Hearing: 26th June 2001
Judgment: 28th June 2001

J. Sullivan for the Plaintiffs
C. Ashley for the 1st, 2nd, 3rd & 4th Defendants
J. Hauirae for the 5th & 6th Defendant

JUDGMENT

(Kabui, J): By Notice of Motion filed on 1st June 2001, the Appellants seek the following orders -

1. Proceedings in High Court Civil Case No. 37 of 2000 be stayed until further Order or Judgment is given on the Applicants appeal.

2. Costs of the application be in the appeal.

The Appellants are the Applicants in this application. They applied for the Order sought under rule 11(5) (a) of the Court of Appeal Rules, 1983. Rule 11 whilst empowering the Registrar to make orders including an order for staying execution, or proceedings, also empowers the Court or a Judge to do the same.

The Facts

The Appellants were the 1st, 2nd, 3rd and 4th Defendants in Civil Case No: 37 of 2001. In my judgment delivered on 23rd May 2001, 1 dismissed their application but granted the Plaintiffs' application. The reasons for my judgment are set out in that judgment. The formal declarations and orders are set out in the judgment entered on 18th June 2001 by the Registrar of the High Court. By application for leave to appeal filed on 25th May 2001, the Appellants are appealing part of my judgment on the grounds set out in their application for leave to appeal to be heard at another date.

The Issue

The issue here is whether or not I should make an order staying the High Court proceedings in Civil Case No. 37 of 2001 until the Appellant's appeal has been concluded in the Court of Appeal. In terms of Rule 11 (5) (a) of the Court of Appeal Rules, an appeal shall not operate as a stay of execution or a stay of any proceedings pursuant to a decision of the High Court unless ordered otherwise under Rule 11 or by the Court or a judge. In this application, the Appellants are seeking a stay of proceedings in the High Court in Civil Case No. 37 of 2001 and not a stay of execution. This is the basis of the application by the Appellants in this case.

Determination of the Issue

The word proceedings as used in Rule 11 (5) (a) above is not defined in the Court of Appeal Rules 1983 nor in the provisions of the Court of Appeal Act (Cap. 6). The word proceedings does however appear several times in Part III of the Act which deals with civil appeals. Its meaning must therefore be understood in the context of civil proceedings rather than criminal proceedings. The authorities seem to indicate that there is no fixed definition of the word proceedings within the context of civil proceedings. In Quazi v Quazi [197913 A E R 424 at 429 LJ Omrod said -

...The ordinary or natural meaning or meanings of the word proceedings standing by itself, without any adjectival description, are so general and imprecise that the dictionary definition do not carry the matter any further. The phrase judicial proceedings implies some form of adjudication and some kind of order of a court or of some other persons or body acting in a judicial capacity...

In Smalley v Robey to Co. Ltd [1962] 1 A E R 133 at 135, L J Holroyd Pearce said-

...Proceedings are intended by these rules to be the day - to - day steps in the action, and not merely the cause of action on which they rest. The wording of R.S.C, Ord. 70, r.2, confirms me in the view that proceedings means the day - to - day steps in the action, since that provides that proceedings can cure themselves of irregularity by delay, in the sense that the other party cannot rely on an irregularity unless making complaint within reasonable time.

Also paragraph 24 at page 30 in 37 Halsbury Laws of England, 4th Edition, states-

...The term proceedings, which is sometimes used in the singular and sometimes in the plural, both in statutes and in the Rules of the Supreme Court, is frequently used both to describe an action or other cause or matter or to denote a step in an action, cause or matter, and obviously has the latter meaning in such phrases as proceeding in any cause or matter. On the other hand, when used alone, whether in the singular or in the plural, it bears the meaning of action and should be constructed with or as including an action...

In the context of Rule 11(5)(a) above, such proceedings must necessarily arise out of a decision of the High Court. Section 2 of the Act defines the word decision as including an order, judgment or decree. In the definition in Halsbury above, the word proceedings is used to describe an action or other cause or matter or a step in an action or matter. The words cause or matter are defined at page 29, paragraph 22 in the same volume and Edition of Halsbury Laws of England. That is to say, the words cause or matter are often used in juxtaposition, but they have different meanings. Cause means any action or any criminal proceedings, and matter means any proceedings in court not in a cause. When used together, the words cause or matter cover almost every kind of proceeding in court, whether civil or criminal, whether interlocutory or final, and whether before or after judgment. In this case, my judgment on 23rd May 2001 was final together with the formal declarations and orders entered on 18th June 2001 by the Registrar of the High Court. What then are the proceedings pursuant to my decision on 23rd May 2001? What action or matter or step in an action, cause or matter has arisen pursuant to my judgment referred to above which ought to be stayed? I can find none. As a matter of fact, none of the definitions of the word proceedings above includes the word decision as defined by section 2 of the Act. The hearing of Civil Case No. 37 of 2001 concluded when I delivered my judgment on 23rd May 2001 followed by the entry of judgment orders on 18th June 2001. My judgment on 23rd May 2001 and the Registrar's Order dated 18th June 2001 are not and cannot be proceedings within the meaning of that term in Halsbury Laws of England referred to above. What then the word proceedings ought to mean in the context it is used in Rule 11(5) (a) of the Court of Appeal Rules? The answer to this question is that no one knows the precise answer. Counsel for the Appellants, Mr Ashley, did not argue this point enough though it is the basis of his application as can be seen from the wording of his Motion above. My research tumbles over one case that arose from arbitration. In Ives & Barker v Williams [1876] UKLawRpCh 25; [1894] 1 Ch. D. 478 a dispute arose between the parties about the subject matter of a contract that ought to be decided by the Company's engineers. It was agreed that questions arising from a sub - contract be settled by the engineers in accordance with the principal contract and that the arbitration clause in the principal contract be repeated and the parties to the sub - contract be appropriately substituted. In the meantime, the Plaintiff filed a Writ of Summons claiming certain relief against the Defendant. The Defendant entered appearance and demanded a Statement of Claim from the Plaintiff. No Statement of Claim having been delivered, the Defendant filed a Summons seeking under section 4 of the Arbitration Act 1889 that further proceedings in the Plaintiffs action be stayed on the ground that matters of difference had been agreed to be referred to arbitration. Situations may well arise where proceedings may have to be stayed pending appeal. In Wilson v Church (No. 2) [1879] UKLawRpCh 233; [1879] 12 Ch. D. 454, the application for stay of all proceedings pending appeal finally ended up being an application for stay of an order for payment of a large sum of money to bondholders. The initial application might have been amended but the law report does not show it. The law on this issue may have to be authoritatively stated at another time. Mr Ashley appeared to have shifted emphasis from arguing in favour of staying of proceedings in the High Court which is the intention of the Appellants' Motion to arguing in favour of staying of execution which is not what the Appellants' Motion is about. If he had changed his mind, he should have asked for leave to amend paragraph 1 of the Appellants' Motion. This, he did not do. Stay of execution and stay of proceedings in Rule 11 (5) (a) are two separate matters. Being uncertain over these two matters in Court shows lack of thoroughness and focus. As Mr Ashley had spent time on arguing in favour of staying of execution, I feel that I should nevertheless address his argument on that matter. Mr Ashley's argument in the nutshell was that my judgment on 23rd May 2001 had the effect of causing prejudice to the Appellant in that the trustees were at liberty to deal in the shares of the 1st Appellants and assets of the 2nd, 3rd and 4th Appellants. Counsel for the 1st Respondents, Mr Sullivan, argued that there were only two consequential orders made on 18th June 2001, the rest were declarations. He said declarations were not normally matters for staying orders. He cited the Republic of Fiji and The Attorney - General of Fiji v Chandrika Prasad (Civil Appeal No. 0078 of 2000) (unreported) as being the authority. He cited the judgment of Sir Maurice Casey J.A. In reading Sir Maurice Casey J.A's judgment, I discovered that the statement of law can be found at page 2 of that judgment. Mr Sullivan's submission on this point was therefore correct though the statement of law by Sir Maurice Casey JA is not absolutely conclusive. He pointed out that Mr Marahare's affidavit filed on 26th June 2001 showed that the Plaintiffs (trustees) had already complied with paragraph 12 of the Court Order by creating the necessary registers to give effect to the declarations made by the Court. As to the second consequential order in paragraph 13, Mr Sullivan said there must be control of the 2nd, 3rd and 4tn Appellants in the terms of paragraph 13. That is to say, the plaintiffs (trustees) must convene an extraordinary general meeting of the 2nd, 3rd and 4th Appellants to determine the appointment of directors etc. He also pointed out that in terms of section 58 of the Bankruptcy Act, the property of the bankrupt would vest in the trustee immediately on a debtor being adjudged bankrupt. Mr Ashley did however concede that the Appellants had to show prejudice if there was going to be a stay of execution. He argued that there was clearly prejudice against the Appellants if the order sought was not granted by the Court. His fear, as I have said, was that the shares would be disposed of and other assets of the 2nd, 3rd and 4th Appellants as well because my judgment had that effect. In response, Mr Sullivan, undertook not to sell any shares pending the outcome of the appeal but said the Plaintiffs must continue to control the 2nd, 3rd and 4th Appellants. He further said that if assets such as land were being sold the Appellants could apply for an injunction to stop such sale. He also said that if the Appellants should succeed in their appeal, there was no reason why they could not sue the Plaintiffs as trustees for their loss. He said the Plaintiffs did have sufficient insurance cover for professional liability and that there was no need for them to give security in this case. The often cited case in this area of the law is The Annot Lyle [1886] UKLawRpPro 31; [1886] 11 P.D. 114. This case stands for the principle that a successful litigant should not be deprived of the fruits of his success. The other case is Wilson v Church (No. 2) [1879] UKLawRpCh 233; [1879] 12 Ch.D. 454. This case stands for the apposite principle that an appellant in appealing a decision of the Court is exercising his right and should be allowed to do so even if it means the Court having to make an order for stay of execution. It does not matter that the appellant loses his appeal despite the granting of the stay of execution. I cited these two cases in my ruling in Eastern Development Enterprises Limited v Isabel Timber Company Limited (Civil Case No. 5 of 1999). There, I said that in this sort of cases, the weighing scale was the discretion of the Court and the weights being the evidence on both sides. But I did not go far enough to say what sort of circumstances can tip the scale in favour of one party on the evidence before the Court. It is now known that special circumstances must be shown by evidence by the party applying for stay of execution before the Court may grant a staying order. This is because of the principle that a successful party should enjoy the fruits of his success. But there can be exceptions being special circumstances that must be proven by evidence. In the Annot Lyle case cited above, the application was refused because there was no affidavit evidence to support the application. Examples of special circumstances are given in footnote 2 at page 272 of 17 Halsbury Laws of England, 4th Edition, some of which were successful and others were not. Footnote 2 above are instances of cases of special circumstances as mentioned in paragraph 455 of 17 Halsbury Laws of England above. Paragraph 455 states -

... The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing...

In this case, I can find no evidence of special circumstances warranting an order for stay of execution. Mr Tori's affidavit filed on 1st June 2001 falls short of evidence showing a case of special circumstances. In paragraph 3 of his affidavit, he is asking for the proceedings in the High Court Civil Case No. 37 of 2001 to be stayed. He is not asking for the stay of execution of my judgment delivered on 23rd May 2001. In my view, the Appellants have failed to make out a case for stay of my judgment. I must therefore dismiss their application. Costs be in the appeal.

F. O. Kabui
Judge