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Mohammed v Singh [1991] FJHC 60; Hbc0090r.91s (28 November 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 90 OF 1991

Between:

FATEH MOHAMMED
s/o Sher Mohammed
Plaintiff

- and -

1. RAM SINGH
2. VIJEN SINGH
both sons of Ram Chandar Singh
Defendants

Mr. M. Raza for the Plaintiff
Mr. R. Chand for the Defendants

RULING

This is an application for a stay of execution pending an appeal against the decision of Jayaratne J. on a Section 169 Land Transfer Act application for vacant possession of a block of land in Tailevu.

The learned judge considered the counter-vailing claims of the parties to the block of land and entered judgment for the plaintiff with costs on the 17th of July 1991.

In the course of his 3 page judgment the learned judge said (after holding that the plaintiff was a bona fide purchaser for value):

"There are no triable issues arising on the proprietary title of the land and/or in the occupation of it by the Defendants. There are issues but they are not triable ones to shift the case to an open court forum."

What those non-triable "issues" were is not entirely clear but in any event in so far as the defendants alleged that a 'fraud' had been perpetrated on them, the learned judge found that "... the plaintiff cannot in any way be (sic) linked to that".

On the 22nd of August the plaintiff obtained a Writ of Possession and on the same day the defendants filed their Notice of Appeal against the Court's decision setting out 4 grounds of appeal complaining of the following errors by the learned trial judge:

(a)" ... not evaluating all the evidence contained in the affidavit of Ram Singh and Vijen Singh before making an order for vacant possession;

(b)" ... making the order for vacant possession when there were triable issues and thereby failed to apply his discretion judiciously;

(c)" ... not considering the effect of Section 172 of the Land Transfer Act which applied to the case, especially when there was a specific allegation of fraud; and

(d)" ... hearing argument on the Summons dated the 4th day of February, 1991 when in fact the order for vacant possession made on the 15th day of March, 1991 had not been set aside."

If I may say so this last ground (d) is an exceeding technical one based as it is on the absence of a formal order setting aside an earlier order of the Court granting the plaintiff's application in default of any affidavit or appearance by the defendants or their counsel.

Needless to say the defendants themselves had sought to set aside the default order and to have the substantive application heard on its merits as it subsequently was done inter partes by Jayaratne J. on the 13th of June.

It is inappropriate at this stage and on this application to say anything more on the defendants grounds of appeal and this Court will refrain from so doing.

Learned counsel for the defendants in his submissions summarised the defendant's claim to the land in the following terms:

"They were in occupation and possession of the land for almost 20 years. They had an alleged oral agreement with the owners of the land to purchase the land and they had made several payments to the owner's agent by way of survey fees and a deposit for the land. The plaintiff as a 'neighbour' knew or ought to have known of their "interest" in the land and more particularly was himself involved in a fraudulent conspiracy with the owner's agent to get the land sold to him."

The plaintiff's claim on the other hand appeared fairly straightforward. It was based on his registered proprietorship of the subject land as evidenced by the Certificate of Title and an expired 'Notice to Quit' properly served by his solicitors on the defendants.

Learned counsel for the plaintiff submitted that the defendants claim is based on a misconception. Their complaint (if any) is against the vendor of the land (who even at this late stage remains undisclosed) who they claim had reneged on an agreement to sell the land to them.

Although this is not a rehearing of the application two evidential matters are noteworthy, the first is the absence of any caveat by the defendants to protect their so-called "interest" in the land and the second, is the absence of any affidavit in reply by the plaintiff denying any knowledge or involvement in the alleged fraudulent conspiracy between him and Bal Bahadur the agent of the landowners for the purpose of dealing with the land.

The principle to be applied in the exercise of the court's discretion in this application must be one which seeks to balance the competing interests of a successful plaintiff on the one hand and an unsuccessful defendant who has undoubtedly exercised his right of appeal on the other. The former, in obtaining the 'fruits of his success' and the latter, in ensuring that their appeal (if successful) is not frustrated.

In this regard it must be noted that the plaintiff obtained a Writ of Possession on the 22nd of August over a month after judgment had been obtained and judgment was not sealed until 3 weeks after it had been delivered by the Court.

Clearly the plaintiff could have been "quicker" in pursuing the 'fruits of his success'. Furthermore he could have sworn an affidavit explaining the delay and setting forth any plans (if any) that he may have had in the further development of the land or any exceptional prejudice that he may suffer or be suffering from his lack of possession.

The defendants on the other hand did not file their Notice of Appeal until after the plaintiff had sought to execute the judgment. They however have been the occupants of the land for the past 16 years and in the absence of any contrary material, stand to be more gravely prejudiced by their eviction therefrom.

In all the circumstances I exercise my discretion in favour of the defendants and accordingly grant a stay of execution pending the determination of the defendants' appeal against the judgment of Jayaratne J. granting vacant possession to the plaintiff.

(D.V. Fatiaki)
JUDGE

At Suva,
28th November, 1991.

HBC0090R.91S