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Jims Enterprises Ltd v Mara [2010] FJHC 39; HBC139.2009 (10 February 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 139 Of 2009

BETWEEN:

JIMS ENTERPRISES LIMITED
PLAINTIFF

AND:

LUKE RAVULA MARA
1ST DEFENDANT

AND:

APOLOSA MARA
2ND DEFENDANT

AND:

AKOSITA TAUBALE
3RD DEFENDANT

AND:

SALOTE NIUTABUA
4TH DEFENDANT

AND:

AKOSITA TAUBALE RUSA
5TH DEFENDANT

AND:

SAILOSI BALEISUVA MARA
6TH DEFENDANT

AND:

TIKOMAIHAWAII MARA
7TH DEFENDANT

AND:

TARANAIVINI GUIVALU
8TH DEFENDANT

AND:

JOSAIA TOKARUA TAMANIVALU
9TH DEFENDANT

AND:

MANUELI RATULEVU
10TH DEFENDANT

AND:

KORONI TUIVAGA & MEREWALESI TUIVAGA
11TH DEFENDANTS

Counsels: Mr. G. O’ Driscoll for the Plaintiff.
Mr. S.R. Valenitabua for the Defendant.

Date/Place of Hearing: Tuesday, 02nd February, 2010 at Suva.
Date/Place of Oral Judgment: Friday, 5th February, 2010 at Suva.
Date/Place of Written Judgment: Wednesday, 10th February, 2010 at Suva.
Judgment of: The Hon. Justice Anjala Wati, Acting Judge of the High Court.

JUDGMENT OF THE COURT
(ON VARIATION OF ORDER TO EXTEND TIME FOR EXECUTION)

The Application

1. This is an application by summons filed by the defendants on the 26th day of January, 2010.

2. The application is supported by an affidavit filed on the same day.

3. The application seeks the following order:-

a. That the order made on the 11th day of December, 2010 be varied to the extent that the execution of the order be stayed until the 28th day of February, 2010 instead of the 30th day of January, 2010.

The Grounds for the Application

4. The following grounds were raised in support of the application:-

a. An oral judgment was pronounced on the 11th day of December, 2010 but no written judgment was furnished to the counsels.

b. The plaintiff has sealed the order and has been taking action against the defendants.

c. The defendants are disadvantaged in that neither a Notice of Appeal nor an application for stay could be filed. The grounds for both the application needs to be derived from the written judgment, the benefit of which the defendants do not have.

The Grounds in Opposition

5. Mr O’ Driscoll raised the following grounds in opposing the matter:-

a. The issues raised in this case were already determined previously by his Lordship Justice Jitoko. There is no appeal from that decision. Any possible appeal from this decision which is largely based on the judgment of Justice Jitoko is unlikely to succeed.

b. It is a mere act by the defendants to buy time to stay on the property. They have been doing this since 1982 when the first orders for vacant possession were granted. They had then asked intervention from the government and succeeded in disobeying the orders of the court. They should not be allowed to stay on the property any further.

c. The oral judgment was largely based on the judgment of Justice Jitoko. The defendants could have filed an application for stay if they wanted to but they have failed.

d. There is absolutely no basis on which the appeal could succeed.

The Determination

6. The state of affairs in regards the delivery of the written judgment is not in issue. The written judgment was not provided to any counsel as the judgment pronounced on the 11th day of December, 2009 was ex-tempore. The reason for an ex-tempore judgment was that the plaintiff urgently needed to know the status as the property was mortgaged and payments were being made under the mortgage with the plaintiff being handicapped from generating any income on the property.

7. In matters of urgency courts do grant ex-tempore rulings. It is not unusual to do so. Written judgments follow the oral judgment.

8. A written judgment was necessary for the defendants to advise their counsel as to whether or not they wished to appeal and apply for a stay of execution of the orders.

9. The defendants in this case were entitled to have a written decision. I accept Mr. S. Valenitabua’s argument that if the written judgment was handed to the parties, then the defendants would have applied for stay of execution of the order for vacant possession by now and would have filed their grounds for appeal as well. The defendants could not file their due processes on time and as such they are prejudiced.

10. I would reiterate that the plaintiff urgently needed to know the orders of the court and so the court had to pronounce an ex-tempore ruling. The plaintiff has waited a long time to get vacant possession of the property. I fully appreciate the difficulties the plaintiff will face but the defendants also have to be given a fair opportunity to file court proceedings which they are entitled to file as of right.

11. For the aforesaid reasons, I am of the judgment that the defendants application must be granted.

Orders

12. I order that the execution of the judgment be stayed until the 28th day of February, 2010 after which leave is granted to issue writ of possession.

13. Orders Accordingly.

Anjala Wati
Acting Judge
10.12.2010