Jap Holdings Ltd v Naomae [2011] SBHC 173; HCSI-CC 52 of 2007 (15 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 52 of 2007

BETWEEN

JAP HOLDINGS Ltd
Claimant

And

ENOCH NAOMANE
Defendant

Mr Keniapisia for the Claimant
Mr Tigulu for the Defendant

Date of Hearing: 14th December 2011
Date of Judgment: 15th December 2011

Decision on application for Stay of Enforcement Proceedings

1. Following a trial of the issues in this case His Lordship Mwanesalua J gave judgment in favour of the Claimant. The Defendant now seeks an order to stay enforcement proceedings. An appeal has been lodged against the decision of Mwanesalua J and the stay is sought pending a conclusion of the appeal.

2. The general rule is that whilst the court no doubt has discretion to stay enforcement, it should not do so. The phrase used in many cases is in terms that the successful party should not be deprived of the fruits of his litigation. However, as with the exercise of any discretion, all the circumstances should be considered and if there are facts to justify a stay then a stay can be ordered.

3. The application is based on the strength of the appeal case, or put another way the likelihood of the appeal being successful, the Defendant's constitutional rights and infringement of his "entitlements" under the Solomon Islands High Court (Civil Procedure) Rules 2007; which I take to be a reference to the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules").

4. Dealing with the last point first, there is no entitlement under the Rules which suspends enforcement proceedings during the period allowed for an appeal to be lodged. The provisions relating to enforcement are set out in Chapter 21 of the Rules. Rule 21.5 is unambiguous and says that an order can be enforced, "...at any time within 6 years after the date of the order." A litigant with the benefit of an order can enforce it the very second it is handed down by the court. There is no automatic waiting period whilst the time for lodging an appeal runs down. The Rules allow a party to apply for a stay of a judgment (Rule 17.77) or a suspension of enforcement (Rule 21.8). Nothing the Claimant did (through its officers and legal advisers) affected the Defendant's rights or entitlements under the Rules to make such applications. Any application for a stay based on an assertion they did is doomed to failure as it is totally misconceived.

5. Turning now to the constitutional rights supposedly infringed by the Claimant's actions, the Defendant does not specify which rights they are. Presumably he is referring to the rights set out in Chapter II section 8 or 9 of the Constitution. Those rights are not absolute. Section 8(2)(a)(iv) specifically refers to execution of judgments or orders of a court and such execution is not inconsistent with the rights set out earlier in the section. There are the same sorts of exceptions set out in Section 9(2)(d). An application for a stay based on supposed breaches of the protections afforded by Chapter II of the Constitution resulting from execution or enforcement of a lawful and current court order is doomed to failure as it is premised on a notion which itself is errant nonsense.

6. The remaining ground advanced is based on the likelihood of the appeal being successful. That raises two issues. First, should the High Court consider an application for a stay? The application was filed before the appeal itself was lodged. Now the appeal is on foot can the High Court hear any application for a stay? Technically there is probably nothing wrong with the High Court dealing with an application of this nature. This is especially so in this jurisdiction where the Court of Appeal is, in the main, a "visiting" court. I was not referred to any provision in the Rules or in the Court of Appeal Act [Cap.6] or in the Court of Appeal Rules which prevents the High Court from hearing an application such as this. Technically then there is probably nothing wrong with the High Court dealing with an application for a stay but whether it is preferable that such an application is made to the Court of Appeal is another question. As the matter is effectively before the High Court I feel constrained to make a decision on the application.

7. The second issue concerns the principles involved when a court deals with an application for a stay. I have been referred to a number of cases where they are set out. This case can be distinguished from most of them because the order made, and which is now the subject of the application to stay, was made after a trial. Nor is the appeal in relation to an interlocutory order. This is not a situation where there was a judgment or order which arose by default. The trial judge heard evidence and argument about the facts and the law. Mr Keniapisia for the Claimant referred me to the court book. That contained the agreed evidence. The agreed evidence seems to me to contradict some if not all of the arguments now advanced for the appeal. His Lordship Mwanesalua J obviously felt the case against the Defendants was overwhelming. How else can the order for costs to be paid on an indemnity basis be explained? It is not for me, dealing with an application for a stay, to sit as the appeal tribunal and consider all the evidence and the law as if dealing with the appeal. I am entitled though to take a broad view on the merits of the appeal. Much of the appeal protests the trial judge accepting what was agreed evidence. On that basis I am not satisfied that the grounds put forward give any indication the appeal has a strong likelihood or any likelihood of succeeding. There are no exceptional circumstances to be discovered in the application for a stay. There is nothing which would justify the court depriving the Claimant of the immediate fruits of its litigation. The application for a stay is refused. The Defendant/Applicant shall pay the costs to the Claimant/Respondent. Those costs are to be taxed if not agreed.

8. As agreed with counsel on the hearing of the application and because of the Court's Christmas vacation, this decision will be delivered in writing and via the appropriate pigeon hole in the High Court Registry rather than in open court.

Chetwynd J