| Fiji Islands - Vijay Prasad v Satish Prasad - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 307 OF 1996
BETWEEN:
VIJAY PRASAD
s/o Ram Prasad
Plaintiff
AND:
SATISH PRASAD
s/o Ram Prasad
Defendant
Mr. H. Nagin for the Plaintiff/Respondent
Mr. S. Chandra for the Defendant/Applicant
DECISION
By motion dated 2 January 1997 the Applicant (Original Defendant) is applying to Court for a stay of execution pending appeal to the
Fiji Court of Appeal of an order to give up possession of a house (the "property") of which the Respondent (original Plaintiff) who is his brother is the "last registered proprietor". The order was made on 12 December 1996.
Background
The Court was satisfied that the Plaintiff was entitled to vacant possession of the property. The circumstances in which he became
owner on 17 January 1996 were that his mother who was the administratrix of the estate of his father transferred it to him. There
were six beneficiaries in the estate including the Defendant.
Except for the Defendant all others had renounced their right title and interest in the property whereupon it was transferred to the
Plaintiff. The defendant's share of the proceeds of the sale of the property which came to $16,000.00 is held in trust by Messrs.
Sherani & Company for payment out to the defendant whenever he is ready to accept it.
The defendant has filed Notice to Appeal in the Fiji Court of Appeal setting out the grounds of appeal on which he intends to rely.
There are two affidavits before me. One is in support of the application and the other is an affidavit in Reply by the Plaintiff.
Both counsel made submissions before me and Mr. Chandra had also passed on to Court a written submission as well.
The Law
It is the general rule that when a party exercises its undoubted right of appeal, the Court should ensure that the appeal if successful
is not rendered nugatory. (See WILSON v CHURCH (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch. D. 454 at 458.).
It is well established by authority that the discretion to order a stay of proceedings is only to be exercised where special circumstances
exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending
the determination of any appeal (vide The ANNOT LYLE [1886] UKLawRpPro 31; (1886) 11 P.D. 114 at p.116, SCARBOROUGH v LEW'S JUNCTION STORES PTY LTD [1963] VicRp 20; (1963) V.R. 129 at p.130). The test applied by ADAMS J in SCARBOROUGH (supra) at p.130 is "whether there is a real risk that the appeal would prove abortive if the applicant were not granted a stay".
Examples of situations where appeal could be rendered nugatory is stated by DAWSON J in THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA AND THE MYER EMPORIUM LIMITED [1986] HCA 13; (1986) 160 CLR 220 at p.223 as follows:
"Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys
paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think,
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: see McBride v Sandland [No.2] [1918] HCA 59; (1918) 25 C.L.R. 369 at p. 375."
Consideration of the issue
I have given careful consideration to the matters before me.
The defendant is in the property and for the reasons he gave and because of the appeal against the present order and because of the
Civil Action No. 348 of 1995 pending in the High Court he refuses to give up possession. Whereas the Plaintiff insists on possession
to enjoy the fruits of the judgment in his favour.
The plaintiff and defendant are brothers and it has come out in evidence that they have been at loggerheads for sometime and the Plaintiff
had found it impossible to live in the same house on the property. Now it is stated by the defendant in his affidavit that "I have no objection whatsoever if he occupies the upstairs flat to mitigate his losses". In these circumstances I cannot see why the Plaintiff cannot move into the premises for after all the parties lived there together
prior to the Plaintiff leaving the property.
A similar situation as in this case arose in GUTNIEL SHARAN f/n Bhawani Samuel Sharan and DAL RAM f/n Jai Ram (C.A. No. 272 of 1980 Western Division) where DYKE J said:
"If the appellant is now obliged to vacate the premises, would he be able to return to them should his appeal be successful?
I think it might prove to be very difficult, if not impossible. In the circumstances I will grant the stay of execution asked for."
I am of the same view and I adopt the above passage in this case. That, in my view, is a sufficiently exceptional circumstance to
justify my granting the stay sought. It will be difficult for the defendant in this case to be restored to his former position if
the judgment against him is executed. The principle that evolves out of the cases that I have cited is that the applicant must show
special or exceptional circumstances before a stay will be granted.
Conclusion
For the reasons given in the exercise of my discretion there will be a stay upon the execution of the judgment in this matter dated
12 December 1996 until the hearing and determination of the appeal or further order of this Court. I therefore Order as follows:-
(a) There be stay of execution of the order of 12 December 1996 for vacant possession until the hearing and determination of the appeal
or further order of this Court.
(b) The Plaintiff be allowed to move onto the property and reside in the upstairs portion of the house without any interference from
the defendant; but should there be any interference one with the other each party shall be at liberty to apply for directions.
(c) The defendant to undertake to take all reasonable steps to execute the appeal with diligence and expedition.
(d) The defendant is ordered to pay the costs of this application to the Plaintiff which is to be taxed unless agreed.
D. Pathik
Judge
At Suva
6 March 1997
Hbc0307d.96s
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