IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Case No. HBC 52 OF 2013

BETWEEN :

DONALD MANI 
of 9 Kini Street, Suva, Fiji, Businessman.
PLAINTIFF

AND:

MICHAEL CHANDRA MANI 
of 27 Adam Place, Lautoka,
Joiner
1ST DEFENDANT

AND :

SHIRLY ROSINA MANI 
of Adam Place, Lautoka, Domestic Duties.
2ND DEFENDANT

Appearances:
The Plaintiff in Person
Ms. Vasemaca Narara for the Defendant

RULING

1.	By Summons filed on 15th June 2015 the Defendants seeks Orders that;

"There be stay of all Orders of His Lordship Justice Lal S. Abeygunaratne dated 14th of May 2015 pending the Determination of the Appeal against the said Orders"
 
2.	The Orders that I made on 14th May 2015 read as follows;

" a)	The Plaintiff is entitled to possession and the Defendant is to give up vacant possession of the property described as Housing Authority Sub-Lease No. 313037 as Lot 2 on DP No. 5961 situated in the district of Vuda in the province of Ba containing an area of 1103m2 

b)	The Plaintiff is entitled to recover from the Defendants a sum of $48,000.00 as rental income for the past 5 years 

c)	The Defendant's to pay the Plaintiff costs summarily assessed in the sum of $3,000.00
d)	The Defendants counter claim is struck out and dismissed".

3.	The application to stay is supported by the affidavit of the 1st Defendant. A reply thereto was filed by the Plaintiff on 20th July 2015 followed by a 	response thereto by the First defendant.

4.	When this matter was taken up for hearing on the 30th September 2015 the Learned Counsel for the Defendant stated to Court that she is relying on the written submission already filed by them. The Plaintiff did not make any submission at the hearing but stated that he is opposing the application.

5.	The first defendant in his affidavits states inter alia that:

i)	Meritorious grounds of appeal have been raised in the Notice of Grounds of Appeal and that they have a reasonable prospect of succeeding.

ii)	No prejudice will result to the Respondent thereby, whereas the Appellant will suffer extreme hardship if stay is not granted pending hearing of the Appeal.

iii)	There are special circumstances which warrant the grant of stay of execution.

iv)	The Defendant will suffer significantly if stay is not granted as he is living in the property and will become homeless.

v)	The Respondent will not suffer any hardship if a stay is granted for the following reasons:-

a)	That the Defendant has been residing in the property.

b)	That no consent of the Housing Authority has been obtained by the Defendant or the Plaintiff to rent out the property.

6.	In the affidavit in opposition the Plaintiff states inter alia that:

i)	The defendants have no basis to seek stay of execution as the Plaintiff is the registered owner of the property in question.

ii)	The Defendants do not have any meritorious grounds of Appeal as there was no error of Law and it appears that the Defendant's are relying on error in fact which is not a consideration for appeal from final Judgement.

iii)	The Plaintiff will be highly prejudiced if stay is granted as he is the registered proprietor of the property in question and the Defendants have unlawfully without any colour of right lived in the property in question whilst the Plaintiff lived somewhere else.

iv)	There are no special circumstances which warrant the grant of stay in this matter. Further the Defendant has failed to state what the "special circumstances" are which makes his statement insubstantial.

v)	As to paragraph 7, 8, 9, and 10 of the Affidavit in support the Plaintiff verily believe and he is informed by his solicitors that all matter and/or evidence regards to this matter was heard in open Court and paragraph 7 and 8 of the Affidavit is not a consideration in granting of stay. He has not collected any rent from the property in question rather the Defendant has been obtaining rent from a flat on the property without consent of the Housing Authority or the Plaintiff.

vi)	The defendant has failed to state that the refusal to grant stay will cause his appeal to be nugatory therefore a stay of execution is not mandatory in this matter.

vii)	The Defendant has failed to show in his affidavit that the plaintiff is not likely to suffer any irreparable loss if the application is granted. 

viii)	The Defendant has failed to show that the grounds of appeal which he relies on involve a point of Law which is novel and/or not just allegation of error or facts. Furthermore the Defendant failed to disclose in his affidavit reasons to show that his appeal is clearly arguable and is neither wholly unmeritorious nor wholly unlikely to succeed.

ix)	Prejudice will be caused to the public interest if the application is granted, and thus the Plaintiff will be denied the fruits of his success.

x)	There is no novelty on the points of law raised by the Defendant and that in any case the grounds of appeal are tenuous and the appeal is wholly unlikely to succeed.

Principles of Stay

7.	The Principles applicable for the grants of stay was discussed in the case of NLTB –v- Shanti Lal [2012] FJSC1; CBV 0009.11 (20 Jan 2012). Paragraph 14 of the said case summarized the principles as follows:

"[14] The Court considering a stay should take into account the following questions. They were the principles set out by the Court of Appeal and approved subsequently and applied frequently in this court. They were summarised in Natural Waters of Viti Ltd –v- Crystal Clear Mineral Water (Fiji) Ltd Civil Appeal ABU0011.04S 18th March2005. There are:

(a)	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 Liggett & 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"

8.	The principles governing "stay" was also discussed by Pathik J in (Chan Lum –v- Stoddart [1994] FJHC 218 [1994] 40 FLR 247 (11 November 1994). He said;

"It is entirely a discretionary matter for the Court whether to grant a stay or not. There are, however, two important matters which a Court would consider. Firstly the Court does not 'make a practice of depriving a successful litigant of the fruits of his litigation, …pending an appeal".(The Annot Lyle (1886) 11 P.D at p. 116, C.A.) Secondly, that 'when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal if successful, is not nugatory" (Wilson –v- Church (No. 2)(1879) 12 Ch. D. at pp. 458, 459 C.A.)

On 'stay' in Halsbury's Laws of England Vol 17 4th Ed. At page 455 it is stated:

"The Court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will as a rule, only grant a stay if there are special circumstances, which must be deposed to in affidavit unless the application is made at the hearing…."

Grounds of Appeal

9.	The grounds of appeal are annexed to the affidavit of the first Defendant filed on 15 June 2015 marked as annexure "A". The said grounds are:-

1.	THAT the Learned Trial Judge erred in law and in fact in holding that the 1st Agreement was withdrawn and the letter dated 15th of March 2007 constituted the 2nd Sale and Purchase agreement when the letter was only written to the Manager of Bank of Baroda to facilitate the loan application by the Respondent.

2.	THAT the Learned Trial Judge erred in law and in fact in holding that the Respondent is entitled to $48,000 in rental income when there was no consent obtained from the Housing Authority to put the property on rent.

3.	THAT the Learned Trial Judge erred in law and in fact in holding that Respondent had paid $40,000.00 in mortgage repayment when there was no documentary evidence submitted by the Respondent to prove the payment of $40,000.00.

4.	THAT the Learned Trial Judge erred in law and in fact in striking out the Statement of Defence and Counter Claim of the Appellants and holding that the Appellants did not call any witness to prove their Defence and Counter Claim.

10.	The first ground deals with the issue of whether the 1st agreement between the parties was withdrawn and whether the letter dated 15 March 2007 constitute a fresh agreement. This ground of appeal is based on the doctrine of contract formation and therefore the Court of Appeal will have to decide whether this Court erred in law and in fact by holding that the first agreement was withdrawn and the letter dated 15 March 2007 constituted a sale and purchase agreement between the parties. This ground deals with issues of law and facts.

11.	The second grounds of appeal deals with the issue of whether the Court can award rent when there was no consent from the Housing Authority to put the property on rent. I find that this ground of appeal only deals with issue of law.

12.	The third ground of appeal is whether the Court erred in Law and in fact in holding that Plaintiff had paid $40,000 in mortgage repayment without documentary evidence to prove the same. 

Analysis and Determination

13.	Bearing in mind the principles applicable to the grant of stay as mentioned herein before I will now consider whether a stay ought to be granted in this matter.

14.	It is apparent from the Grounds of Appeal that there are important Legal issues to be decided by the Court of Appeal in this matter. Whether the first Agreement was withdrawn and whether the letter dated 15 March 2007 constitute an agreement is a important legal issue to be decided applying the doctrine of contract formation. Therefore the said Ground show some merits with a likelihood of success in appeal.
15.	It is stated in the written submission of the Defendants that it will be very difficult for the Defendants to come up with the Judgment sum and if they do pay the said sum and they are successful then it will be difficult for them to recover the same from the Plaintiff. It is also stated that they will have to take further legal action to recover $48,000.00 and obtain vacant possession for the vacant lot 25 and $15,000.00 as per the 1st Agreement. It is submitted by the Defendants that this raises special circumstances for the grant of stay. 

16.	The defendant's financial position and the hardships they are undergoing is evident by them seeking Legal Aid Commission assistance immediately after the Judgment and also appearing in person at the Trial before this Court. Therefore there is no doubt that they will find it difficult to pay the Judgment sum to the Plaintiff pending appeal and even if they pay and hand over the property to the Plaintiff they will again find it difficult to institute legal proceedings to recover the said sum from the Plaintiff and obtain possession of the land due to their financial hardships. This I think could be considered as special circumstances for the grant of a Stay.

17.	The Plaintiff states that he will be highly prejudiced if stay is granted as he is the registered proprietor of the property in question and the Defendant's have unlawfully lived on the property whilst he had to live elsewhere. Though the Plaintiff alleges the Defendants were unlawfully occupying the property it was the Defendant's property that Plaintiff has purchased. Therefore the Defendants cannot be considered as unlawful occupants of the property prior to the Sale and Purchase agreements. The sale of the property to the Plaintiff is in issue now. If the Defendant's are not successful in appeal still the Plaintiff will be able to get vacant possession of the property and recover the judgment sum with costs. Therefore I cannot accept that the Plaintiff will be prejudiced by a stay being granted in this matter. I find that the balance of convenience lies with the Defendants as they will suffer most if stay is not granted.

18.	Before I conclude it is pertinent to note the observations made in Linotype – Hell Finance Limited –v- Baker [1992] 4 ALL ER p 887 CA. It was held:

"Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the Court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success".

19.	In this case too the Defendant's will be ruined if stay is not granted. As discussed above they have shown that they have an Appeal with some prospect of success

20.	Due to the reasons set out as above I make the following orders:

a)	The application to stay all Orders made by the Judgment dated 14 May 2015 pending determination of the appeal is granted.

b)	Costs of this application shall be costs in the appeal.

Lal S. Abeygunaratne
[Judge]

At Lautoka

7th October 2015