In the High Court of Fiji at Suva
Civil Jurisdiction

Civil Action No.HBC 320(A) of 2013

Between:

Ashwin Lal

And:

Roselyn R Prasad
Plaintiffs

And:

Aliveta Draveuru
Defendant

Appearances: MrM. Nand for the plaintiffs
 Mr I.V. Tuberi for the defendant 
 Date of hearing: 24th September, 2015

Judgment

1.	This is an application by the defendant for stay of execution of the writ of possession issued by the Master pending the appeal of the decision of the Master of 4th August,2015.

2.	At the hearing, Mr Tuberi, counsel for the defendant submitted that the defendant has good and meritorious grounds of appeal which have likelihood of success. If the writ of possession is not stayed, her claim in other related cases will be prejudiced and her interest in the matrimonial home or the purchase price will be completely neglected. Mr Tuberi states the decision of the Master failed to address the defendant's interests in the matrimonial home.

3.	Mr Nand, counsel for the plaintiff in reply submitted that the there is no appeal on foot for two reasons. Firstly, the defendant, as appellant, has failed to file and serve a summons returnable before a judge for directions and a date for hearing of the appeal within 21 days of filing appeal, as required under Or59,r17(2). Secondly, the defendant has not sought leave to appeal from the order of the Master granting possession.

4.	The determination

a.	The first ground of objection taken by Mr Nand, counsel for the plaintiff in reply submitted that the defendant, as appellant, has failed to file and serve "within 21 days of the filing of notice of appeal..a summons returnable before a judge for directions and a date for the hearing of the appeal", as required under Or 59,re 17 (2). 

b.	Or 59,r 17 (3)provides:

If this rule is not complied with, the appeal is deemed to have been abandoned.

c.	MrNand cited Mitchelle Gay and Allan vs Resolution Trust Corporation,( Civil Appeal No. HBA 01 of 2009)where CalanchiniJ(as he then was) stated that the rules of Part II of Order 59 have imposed a strict timetable for the filing and serving of documents at the Registry and on the respondents . The purpose of the Rule was obviously to avoid delay at the interlocutory stage of civil proceedings and to make such appeals more efficient. CalanchiniJ stated further that:

The provision in Rule 17(3) that failure to follow Rules 17(1) and Rules 17(2) leads to an automatic abandonment of the appeal is intended to operate as a deterrence in respect of delay.

d.	The defendant filed notice and grounds of appeal on 10th August, 2015.

e.	On 14th September,2015,summons was filed by the defendant under Or 59 r17(2)for directions and allocation of a date for hearing of the appeal.

f.	The matter was called before me on 23rd September,2015,and the appeal was fixed for hearing on 16th November,2015.No objection was raised that the summons was not filed within 21 days of the filing of notice of appeal.

g.	In that circumstance, I will not make an order on the abandonment of the appeal at this stage.

h.	The next ground urged by Mr Nandis that the defendant has failed to comply with Or 59,r 11 for leave to appeal the order made by the Master, since the order by the Master granting writ of possession is an interlocutory order.

i.	Mr Tuberi's riposte was that the Constitution of Fiji overrides the High Court Rules, and his client has a right to be heard.

j.	The plaintiff is not appealing from the order of the Master granting possession, but seeking a stay pending appeal.

k.	In my judgment, the question whether leave to appeal is required does not arise in an application for stay of execution pending appeal.

l.	The principles governing the grant or refusal of a stay application pending appeal are well-settled. 

m.	The first principle is that the Court does not "make a practice of depriving a successful litigant of the fruits of litigation":The Annot Lyle,[1886] 11P.D. 116; Monk v Bartram,[1891] 1 QB 346.

n.	The second is that when an appellant exercises its right of appeal, the court should ensure that the appeal if successful is not rendered nugatory. Mr Tuberiin his written submissions cited the oft cited cases in support of this principle.

o.	The third principle is that in the exercise of its discretion, the court should consider the effect that a stay, or a refusal of stay, would have on each party. Mr Tuberi cited AG v Emerson,[1889] 24 QBD 56 in support. 

p.	A further principle emerged in Linotype-Hell Finance Limited vs Baker,[1992] 4 ALL ER 887as also referred to by Mr Tuberi which held that where an unsuccessful defendant seeks a stay of execution pending an 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".

q.	I turn to the grounds of appeal.

r.	The grounds of appeal read:

1)	That the Acting Master of the High Court erred in law and in fact in holding that the question to be decided was whether the plaintiffs are entitled to possession. The Acting Master failed to consider that the Section 169 application is a Summons to show cause by the Appellant should not give vacant possession of the property in question.

2)	That the Acting High Court Master erred in law and fact in failing to properly direct himself on the provisions of Section 172, Land Transfer Act. Cap 131. The Appellant has deposed in her Affidavit in Opposition that her interest in the said property is by virtue of being the legal wife of the Vendor of the said property.

3)	That the Acting Master of the High Court erred in law in failing to consider that the fact of a housewife created an interest under sections 160 and 161 of the Family Law Act 2003 and the said interest provides an arguable defence against the Summons. Under the provisions of Section 172 Land Transfer Act. Cap. 131.

4)	That the Acting Master of the High Court erred in law and in fact in failing to properly consider that the said property was the matrimonial property which was sold by the Appellant's husband and without her knowledge and consent.

5)	That the Acting Master erred in law and in fact in failing to consider that the interest of the Appellant in the said property existed in law and the same can only be registered in the title of the said property if there was a proper divorce proceeding where full disclosure to the Family Court at Nasinu that there was a matrimonial property involved.

6)	That the Acting Master erred in law and in fact the interest of the Appellant in the property or in the proceeds of sale of the matrimonial property. The said ruling is totally silent in the interest of the Appellant in the proceeds of sale of the matrimonial property.

s.	The first ground of appeal takes issue with the finding of the Master that the question to be decided was whether the plaintiffs are entitled to possession and failing to consider that the application was a section 169 summons for the defendant to show cause why she should not give vacant possession of the property.

t.	I find that the Master has considered the requirements of section 169 and quite correctly found that the plaintiffs are the last registered proprietors of the relevant native lease. He has next, considered whether the defendant has shown cause.

u.	Grounds 2,3,4 and 5 urge the Master failed to consider the provisions of section 172 and that the defendant has an interest and a right to possession of the matrimonial property sold by her husband without her knowledge and consent.

v.	The ultimate ground contends that Master had failed to consider the defendant's interest in the matrimonial property or in the proceeds of its sale.

w.	The case for the defendant is that the property sold by her former husband to the plaintiffs is matrimonial property. It constitutes an interest under sections 160 and 161 of the Family Law Act 2003. 

x.	The plaintiffs contend that they are bona fide purchasers of the property.

y.	I note that the defendant had not alleged fraud against the plaintiffs, in the proceedings before the Master. The defendant in her affidavit in opposition stated that:

•	"Neglect was shown by the Plaintiffs when they failed to check whether (she) was occupying the said property legally".

•	"deception and fraud to the Family Court of Nasinu" was committed by her former husband Singh,(the vendor) in the divorce case.

z.	In this context, I would refer to the interpretation of Lindley L.J.'s definition of "fraud" in Assets Company, Limited v Mere Roihi& Others,[1905] A.C. 176 at 210:

by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud.. the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Land Acts, must be brought home to the person whose registered title it impeached or to his agents… The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. 

aa.	In the early case of Caldwell v Mongston,[1908-1925] 2 FLR 1 at pg 14, it was stated that"it is not competent for this Court to examine facts antecedent to the issue of the. Certificate of Title, or to pronounce upon their validity or invalidity for the purpose of impeaching the plaintiff's title, except those facts be so connected with the issue of the certificate as to support an allegation of fraud in obtaining it." 

bb.	In exercising my discretion, I am required to weigh considerations of the balance of convenience and the competing rights of parties.

cc.	The defendant has a grievance with the vendor, her former husband and the manner by which he obtained a divorce while they were living together.

dd.	The defendant's position is that she should remain on the property until she proves, in other proceedings that she has a right to the matrimonial property and purchase price paid by the plaintiffs to her former husband, the vendor.

ee.	To my mind that is unacceptable for the reason that if the defendant's appeal succeeds, she would not be able to recover the property or the purchase price from the plaintiffs. The plaintiffs are bona fide purchasers.

ff.	It seems to me quite clear that the balance of convenience lies heavily in favour of refusing a stay pending appeal

gg.	The defendant in her affidavit in support of the stay states that there is an action before the Family Court in relation to the dissolution of her marriage and other related issues. In my view, the defendant has to seek redress in that action, as noted by the Master.

hh.	The application for stay of execution is declined.

5.	Orders

(a)	I decline the application for stay of execution.

(b)	I make no order as to costs.

5th October, 2015

A.L.B.Brito-Mutunayagam
Judge