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Prasad v Kumar [2002] FJHC 44; Hbc0499d.2001 (5 April 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 499 OF 2001S

Between:

PARKASHNI PRASAD
(f/n Tara Chand)
Plaintiff

and

DHIREND KUMAR
(f/n Chandrika Prasad)
Defendant

Plaintiff in Person
R. Naidu for the Defendant

DECISION

On 27 March 2002 I gave judgment in favour of the Plaintiff who had brought proceedings for possession of land owned by her under the provisions of Section 169 of the Land Transfer Act. On or about 28 March the Defendant filed a Notice of Appeal to the Court of Appeal against the order for possession. A copy of the Notice is annexed to the affidavit in support of this application which is an application for a stay of the order for possession pending disposal of the appeal.

In support of the application Mr. Naidu referred to the well known general principle that “when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatary” (Wilson v. Church (No. 2) [1879] UKLawRpCh 233; (1879) 12 Ch D 454. He referred to the fact that the Plaintiff does not require the premises in question for her own use and suggested that the Defendant has good prospects of success in his appeal.

As will be seen from my Judgment it cannot be disputed that the Defendant’s lease over these premises has expired. The lease contained a clause that at the end of the lease period he would return the premises to the landlord. He has not. While the Notice of Appeal asserts that I erred in law and in fact in deciding in favour of the Plaintiff no grounds for this assertion are set out in the notice of appeal and none were advanced at the hearing of this application by Mr. Naidu who merely suggested that the Defendant had an arguable case. In my opinion however the Defendant’s prospects of success on appeal are nil.

The question which then arises is whether a person who plainly has no prospects of successfully arguing an appeal should be granted a stay on the ground that the appeal, if successful, would be nugatory. In my opinion he should not.

In discussion Mr. Naidu agreed that the likelihood is that no appeal in this matter could finally be disposed of until towards the end of this year. The effect therefore of granting a stay at this point would be to grant the Defendant a further 12 months in possession following the expiry of the lease in November 2001. This, in my view, would be quite unjust.

Section 169 proceedings are designed to offer a rapid and simple method by which a landlord can regain possession of premises from a person in occupation who is unable to show a good ground for retaining possession. In my Judgment I found that the Defendant had failed to discharge the onus resting upon him. Nothing that I was told at the hearing of this application alters my view. The application fails and is dismissed.

M.D. Scott
Judge

5 April 2002