IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. 240 OF 2010

BETWEEN:

LONDON GUARANTEE CORPORATION LIMITED
Plaintiff

AND:

ISIRELI TABUA
Defendant

Mr V. Kapadia for the Plaintiff
Defendant in Person.

DECISION

In a Ruling dated 21 February 2011 Master Amaratunga ordered that immediate possession of the land described in Certificates of Titles 12684, 12683, and 10178 (the said land) be granted to the Plaintiff together with costs in the sum of $1500 to be paid within 21 days by the Defendant. The order was made pursuant to an application by the Plaintiff under section 169 of the Land Transfer Act Cap 131 (the Act). The application had been opposed by the Defendant.

The Defendant has filed a Notice of Appeal together with grounds of appeal. The Defendant seeks an order from this Court that the Master's orders be set aside. It appears not be disputed that the appeal has been filed within the time prescribed by Order 59 Rule 9 of the High Court Rules.

Pursuant to Order 59 Rule 16 (1) the filing of a notice of appeal does not operate as a stay of execution unless this Court so directs.

As a result and in accordance with Order 59 Rule 16 (2) the Defendant filed a summons dated 14 April 2011 seeking a stay of the Master's order pending the appeal. The application was supported by an affidavit sworn by the Defendant on 14 April 2011.

The application was listed for mention before me on 15 April 2011. On that day directions were given for the filing of further affidavit material. The Plaintiff filed an answering affidavit sworn by Divyesh Damoda on 20 April 2011. The Defendant then filed a reply affidavit sworn on 27 April 2011.

The hearing of the stay application took place on 12 May 2011. The Defendant in person and Counsel for the Plaintiff both presented helpful oral submissions.

Although the procedure contemplated under section 169 of the Act is essentially summary in nature, the Plaintiff commenced its claim for vacant possession of the said land by way of the Originating Summons procedure under Orders 7 and 28 of the Rules.

As required by section 169 of the Act the Plaintiff established by affidavit that it was the last registered proprietor of the said land. The Plaintiff claimed that the Defendant was illegally and unlawfully occupying an upstairs flat of a building on the said land. It claimed that there was no consent, licence or tenancy given to the Defendant to occupy the flat. A Notice of Quit had been served on the Defendant on 18 June 2010.

In response to the Notice to Quit the Defendant stated in a letter dated 14 July 2010 that:

"It was established in our meeting yesterday that the action taken against me is inconsistent with the normal procedure and process of law.

You are aware that I am entitled to a months notice and an additional month if I resist on reasonable grounds so as to enable you to institute legal action against me.

Furthermore the oversight has brought about unbelievable shame, inconvenience and has been very traumatic for the past few weeks.

Accordingly Mr Sireli Fa is informed to advise me on the appropriate step to take."

Under section 172 of the Act the Defendant is required to establish a right to his possession of the land. In proceedings under the Act, the Defendant may establish such a right by affidavit material. If such a right is established to the satisfaction of the court, the Plaintiff's claim will be dismissed with costs. In the event that the Plaintiff's claim is dismissed, it is open to the Plaintiff to pursue his claim against the Defendant by way of proceedings commenced by writ.

The Defendant claimed to be in occupation of the flat with the consent of the Plaintiff. The Defendant exhibited to his affidavit sworn on 22 September 2010 a hardcopy of an email dated 14 June 2007 from Navitalai Naisoro, who stated that he was a director of the Plaintiff company. The last paragraph of that email stated:

"I wish to confirm that you have the full authority to reside and oversee the Grantham Road property. Please ensure that the property is maintained tidy and meets City council regulations. Any costs related to grass cutting be submitted to Mr Steven Narain for approval first."

In its reply affidavit the Plaintiff exhibited hardcopies of a series of email communications passing between the parties between 14 June 2007 and 22 July 2010. One such email dated 26 October 2008 from Navitalai Naisoro to the Defendant stated:

"As per our discussions the following is our joint understanding.

Approval is given for you to continue your appointment as caretaker of the Grantham property.

Approval is also given for you to conduct a BBQ business from the premises you now occupy.

The above arrangement continues at the pleasure and sole discretion of the company.

Good luck to your endeavours."

It is apparent that the Defendant had become aware by February 2010 of a proposed development project on the said land and that he would need to vacate the premises.

In an email dated 19 June 2010 the position was made clear by Mr Naisoro when he advised the Defendant:

"I am writing to confirm that Sherani and Co. Attorneys are acting on behalf of London Guarantee Corporation.

As such London Guarantee requires immediate possession of the property to proceed with its development projects.
 _ _ _."

The Defendant understood the position as his email dated 11 July 2010 to Mr Naisoro stated:

"I've had a meeting this morning and Div and his Dad had decided that I vacate by Wednesday. I've told them that in our arrangement we have agreed that I be the last to leave but now I have not been served an eviction order and they insist that I move out. They said that whether there is going to be a project or not they want everybody out of the property _ _ _."

And in an email dated 22 July 2010 the Defendant appeared to accept the reality of the situation when he said:

"I made it clear to Div and his father that I had no intention to resist in an irresponsible manner and that I needed at least three months to find a place and assist them in the vacant possession of the property _ _ _."

It should be noted that the Defendant did not dispute service of the Notice to Quit dated 18 June 2010. The Plaintiff submitted to the Master that any licence that had been given to the Defendant had been revoked with sufficient notice verbally and in writing. Furthermore, the three months that the Defendant said he required to find a place came to an end in October 2010.

In his Ruling the Master stated in paragraph 10:

"It is clear that the Defendant has entered the property with leave and licence of the Plaintiff and had remained there at the pleasure of the Plaintiff. The Defendant was served the summons for this application and before that the leave granted to him to remain on the property was withdrawn and a quit notice was sent. The Defendant is in the property illegally and is also hindering the massive development activity that has been undertaken on the said premises. It is clear that the Defendant has failed to satisfy the court any right to remain in the premises in derogation to the rights of the Plaintiff in terms of section 172 of the Land Transfer Act."

The Defendant, in his affidavit in support of a stay stated that the Master's decision was "made in my default". Certainly an earlier order made by the Master had been made in default but subsequently set aside. It is clear from the record that the Defendant was present on 21 February 2011 when the parties presented submissions. It may be that the Defendant's reference to the order being made by default concerns the statement in the Master's Ruling that the Defendant has failed to file the affidavit in opposition (see paragraphs 3, 4 and 7). However the Defendant had filed an opposing affidavit in the form of an exhibit to his affidavit in support of his application to have the default order set aside. This fact was acknowledged by the Plaintiff in the reply affidavit sworn by Steven Narayan on 1 February 2011 (see paragraph 2).

Although the Master has not specifically referred to the Defendant's opposing affidavit to the substantive application, it is apparent from his ruling that he has considered its contents.

In determining whether the Defendant's circumstances are sufficiently exceptional for the grant of a stay of enforcement pending appeal, it is necessary to consider the relevant principles set out by the Court of Appeal in Natural Waters of Viti Ltd –v- Crystal Clear Mineral Water (Fiji) Ltd (unreported civil appeal No.11 of 2004 delivered 18 March 2005). They were:

"(a) Whether, if no stay is granted, the applicant's right to appeal will be rendered nugatory this is not determinative) See Philip Morris (NZ) Ltd –v- Leggett and Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

 (g) The overall balance of convenience and the status quo."

Without going into a detailed consideration of each of these factors it is sufficient to say that the Defendant has acknowledge that he must eventually vacate the land. His grievance appears to be related to the manner in which the Plaintiff has acted and a possible claim for compensation for services rendered and for subsequent anxiety and worry caused by the Plaintiff's conduct. These matters have nothing to do with the Plaintiff's claim for vacant possession.

Whilst the Defendant appeared determined to prosecute the appeal, I am left with the conclusion that what the Defendant is seeking to obtain is more time and in effect is only attempting to delay the date upon which he must vacate the land.

There is no novel or important question of law involved in these proceedings. Whilst the public interest may well be served by the timely development of the project, there is no question in these proceedings that involves a public interest element. I am quite satisfied that the balance of convenience clearly supports the conclusion that a stay of enforcement should not be granted.

Under the circumstances I must decline to order a stay. The costs of this application are to be costs in the appeal.

W D Calanchini
JUDGE

24 June 2011
At Suva