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Aiyub v Feroz [2008] FJHC 292; HBC38.2008 (20 June 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. HBC 38 OF 2008

BETWEEN

MOHAMMED AIYUB f/n Usman Ghani &
SHEIK MOHAMMED KAMAL f/n Mohammed Hanif
Plaintiffs

AND

MOHAMMED FEROZ f/n Mohammed Hassan,
ASGAR ALI f/n Ajum Ali,
MOHAMMED NAZEER f/n Mohammed Jubbar,
MOHAMMED SHAHIM f/n Mohammed Yakub,
ROSHAN ALI f/n Rustam Ali &
MOHAMMED SHIRAZ HAKIM f/n Saiyad Hakim
Defendants

Appearances: Mr. R. Chaudhry for the Plaintiff
Dr. Sahu Khan for the Defendant

Date of Hearing: 13 June & 20 June 2008
Date of Ruling: 20 June 2008

EX-TEMPORE RULING

[1] By notice of motion dated 26 May 2008 the plaintiffs seek the following orders:

1. That leave be granted to the plaintiff to file an appeal against the ex-tempore judgment delivered by Madam Justice Gwen Phillips on the 6th day of May 2008.
   
2. That execution of the ex-tempore judgment dated 6th May 2008 be stayed until the final determination of this application in the Fiji Court of Appeal.
   
3. That the costs of this application be costs in the cause.
   
4. Such further or other orders and/ or directions as this Honourable Court may deem just and equitable and appropriate in the circumstances.
   

[2] The application was made pursuant to the Court of Appeal Act, Section 12 (2) and the inherent Jurisdiction of the Court.

[3] The application was strongly opposed. Both learned counsel have filed comprehensive written submissions for which I am grateful.

That leave be granted to the plaintiff to file an appeal against the ex-tempore judgment delivered by Madam Justice Gwen Phillips on the 6th day of May 2008

[4] I have upheld Dr. Sahu Khan’s submissions in this regard. On 21 February 2008 I granted an injunction restraining the defendants from destroying, altering or carrying out any earthworks or construction on the Mosque situated upon land comprised in Crown Grant number 1463 at Vitogo, Lautoka. The injunction granted on an ex-parte application was for a limited period until 4.00pm on 29 February 2008. On 29 February 2008 Dr. Sahu Khan appeared for the defendants and sought an early hearing date. The practice of this Court is where urgency dictates an ex-parte injunction will be granted for a limited period and extended periodically if the circumstances warrant until the application for injunctive relief is heard inter-parties. On 29 February I fixed the hearing date of 14 March 2008 and extended the injunction until 4.00pm on the 14 March. On 14 March I was informed by both counsel (the plaintiff was then represented by Mr. Haroon Ali Shah) that both parties were of the view that the dispute between them be placed before an independent mediator. There were prospects of amicable resolution. The hearing inter-parties was adjourned to 2.15pm on the 18 March. I did not extend the injunction. On 18 March I only had time to hear counsel for the plaintiff and at 4.20pm ordered that the hearing was to continue before me on 11 April. An additional order was made that the injunction was to continue until 4.00pm on 11 April. On 11 April I was informed that the parties intended to meet the following day. Settlement was again an option being considered. The matter was adjourned to 15 April for mention to review the status of settlement. On 15 April both counsel confirmed that settlement was no longer an option and a fresh date for continuation of hearing was sought. I fixed 6 May for continuation of hearing at 11.00am and also ordered that the injunction was to continue until 4.00pm on that day.

[5] After considering the submissions made at the hearing I issued an extempore ruling wherein I ordered that my order made on 21 February 2008 be dissolved forthwith with costs in the cause.

[6] Section 12(2)(f)(ii) of the Court of Appeal Act (Cap 12) expressly provides that an appeal shall lie to the Court of Appeal without leave of the Judge below where an injunction is granted or refused. In dissolving the ex-parte injunction which had been extended until 6 May 2008 I had effectively refused the plaintiffs application for injunction. My earlier order of 21 February 2008 had been dissolved for what I had found was material non-disclosure in the initial application and had in not extending the order further, effectively declined the application after hearing the application inter-parties.

[7] Leave to appeal my ruling was unnecessary. Prayer (i) of the motion before me is declined.

That execution of the ex-tempore judgment dated 6th May 2008 be stayed until the final determination of this application in the Fiji Court of Appeal

[8] Mr. Chaudhry maintains that the stay sought if granted will have the effect of re-instating my order of 21 February 2008. The relevant principles for consideration on applications for stay pending appeal were enunciated by the Fiji Court of Appeal in Natural Waters of Viti Ltd –v- Crystal Clear Mineral (Fiji Ltd)[1]. The court held as follows:

"The principles to be applied on an application for stay pending appeal are conveniently summarized in the New Zealand text, McGechan on Procedure (2005):

‘On a stay application the Court’s task is ‘carefully to weigh all of the factors in the balance between the right of

a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful’: Duncan –v- Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at p.87.

The following non-comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd –v- Bilgola Enterprises Ltd (1999) 13 PRNZ 48, at p.50 and Area One Consortium Ltd –v- Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200:

1. Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Phillip Morris (NZ) Ltd –v- Ligget & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA)
   
2. Whether the successful party will be injuriously affected by the stay
   

100. The bona fides of the applicants as to the prosecution of the appeal.
     

4. The effect on third parties
   
5. The novelty and importance of questions involved
   
6. The public interest in the proceeding
   
7. The overall balance of convenience and the status quo.
   

[9] I comment briefly on such of those factors as may be relevant in the present case.

Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Phillip Morris (NZ) Ltd –v- Ligget & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA)

[10] There is presently no appeal before the Fiji Court of Appeal. Dr. Sahu Khan submitted that the present application for stay is an academic exercise. My principal concern is that even if I were to order a stay of execution of my judgment, my stay order would be meaningless, there being nothing to stay so to speak. My judgment dissolved an injunction granted ex-parte. A stay of that judgment cannot re-instate the injunction. The injunction expired on 6 May. That is the present status quo. There is no injunction in place. I have upheld Dr. Sahu Khan’s submissions in this regard.

Whether the successful party will be injuriously affected by the stay

[11] Consideration of this factor favours the defendants. The photographs annexed in the defendants affidavits herein clearly show that the construction of the extension to the Mosque is well underway. I have considered the submission that they ought to have been an expert report confirming the stage of completion. I have declined this submission on the grounds also that when this application was made Mohammed Feroz deposed that ‘no renovation work has yet begun’. The evidence before me clearly shows that substantial works have already been done.

The bona fides of the applicants as to the prosecution of the appeal

[12] There is no appeal pending. The proper course for the applicants was to have immediately appealed my decision to the Court of Appeal. The case of Rauzia Mohammed v ANZ Banking Group[2] shows that where an injunction was dissolved in the lower court, the Court of Appeal dealt with the injunction application afresh on appeal.

The overall balance of convenience and the status quo

[13] The test here is a determination of which of the two parties would suffer greater harm from granting or refusal of a stay pending a determination of the appeal on merits. A balancing of conflicting considerations is required, between the underlying principle that a litigant is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal will render the appeal nugatory or substantially nugatory.[3]

[14] I accept that the plaintiffs will suffer prejudice as a result of my declining the stay. However of significance is that there is no appeal from my ruling presently on foot. In the circumstances, I must give precedence to the principle that a litigant is entitled to the fruits of his judgment forthwith.

Conclusion

[15] Time constraints do not permit me to address all the issues canvassed by both counsel in the submissions before me. I have considered it far more prudent to deliver this extempore decision so that the plaintiffs can take further action before the Fiji Court of Appeal without further delay. The motion dated 26 May 2008 is dismissed with costs in the cause.

G. Phillips
Judge

At Lautoka
20 June 2008

^[1] FCA Civil Appeal No. ABU 0011 of 2004S (18 March 2005) page 3
^[2] Fiji Law Reports V30 p136
² Reddy Enterprises Ltd v The Governor of the Reserve Bank of Fiji [Court of Appeal, 1991 (Tikaram
RJA) 9 of August