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Prasad v Hussain [2021] FJHC 381; HBC197.2014 (14 December 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION


Civil Action No. HBC 197 of 2014


BETWEEN


GAYA PRASAD aka MUKESH PRASAD and PRAVEENA PRASAD both of

33 Tyndall Avenue, Toronto, Ontario, Canada,

Businessman and Domestic Duties.


PLAINTIFFS


AND


SABIR HUSSAIN aka SABIR QAIYUM HUSSAIN of Ratu Dovi Road, Nadera,

Nasinu, Fiji trading as SABIR BUILDERS and KHALIL HUSSAIN of

Nausori, Fiji, Businessman.


DEFENDANT


Counsel : Mr. Singh S. with Ms. Soumaki K. for the Plaintiffs.

Mr. Kumar S. for the defendant


Date of Hearing : 16th November 2021


Date of Ruling : 14th December 2021


RULING

[On Stay of Proceedings & Execution of Judgment]


[1] The plaintiffs instituted these proceedings claiming, inter alia, $146,328.75 as damages. The court on 27th January 2017 delivered the judgment ordering the defendant to pay the plaintiff the said amount with interests and costs.

[2] On 13th September 2021 the plaintiff filed an ex-parte summons seeking the following orders:

  1. That the Judgment against Sabir Qaiyum Hussain entered and pronounced on 27 January 2017 in the sum of $149,898.75 together with interest on the said sum in terms of section 4 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 as amended by Law Reform ( Miscellaneous Provisions) (Death and Interest) (Amendment) Decree 2011, from the date of the judgment until the entire sum is paid in full and costs up to judgment date in the sum of $4,000.00 stand charged against the Defendant’s interest in the land described as all that State Lease No. 23012 being Lot 3 on SO 8647, State Lease No. 23013 being Lot 2 on the SO 8647 and Crown Lease No. 10267 being Lot 2 on R. 1775 until such date as the Court makes a final order.
  2. Copies of all the documents be served on Defendant, Sabir Qaiyum Hussain who must make an appearance in terms of Order 50 Rule 1 (6) of the High Court Rules.
  3. On service and appearance, the Defendant Sabir Qaiyum Hussain do show cause why the said Judgment pronounced and entered on 27 January 2017 in favour of the Plaintiffs shall not become Charging Order Absolute against Defendant’s interest in the land described as all that State Lease No. 23012 being Lot 3 on SO 8647, State Lease No. 23013 being Lot 2 on SO 8647 and Crown Lease No. 10267 being Lot 2 on R. 1775 until such date as the Court makes a final order.
  4. On the orders being pronounced Charging Order absolute, the Plaintiffs be permitted to sell the Defendant’s land being State Lease No. 23012 being Lot 3 on So 8647, State Lease No. 23013 being Lot 2 on So 8647 and Crown Lease No. 10267 being Lot 2 on R. 1775 by public advertisement.
  5. The Deputy Registrar Legal of the High Court, Suva Registry shall execute all documents required on behalf of the Defendant to process the sale including the form of Sale and Purchase agreement with the Purchasers, Transfer, Application for Consent to Assign to the Director of Lands, any applications for release and settlement of Mortgage on the properties and Capital Gains Tax clearance applications.
  6. Within 7 days of making of the orders herein, the Defendant whether by his Banker, Bank of South Pacific, himself or his agent, his lawful Power of Attorney Holder, shall provide the duplicate Original State/ Crown Leases listed in Schedule herein to the Plaintiffs’ solicitors. If the Defendant fails to hand in the duplicate Original State/Crown Leases, then the Registrar of Title shall cancel the duplicate Original State/ Crown Leases in the Defendant’s possession and issue fresh duplicate/provisional Crown/State Leases for use by the Plaintiffs to achieve the sale by the Plaintiffs of the properties listed in the Schedule herein.
  7. The Defendant be refunded the extra/excess from the sale proceeds of the properties.
  8. Such further and/or other Orders as this Honourable Court deems just.
  9. Costs on an indemnity basis.

[3] On 22nd October 2021 the 1st named defendant filed the summons pursuant to Order 45 rule 10 of the High Court Rules 1988 seeking to have the execution of the judgement stayed. The orders sought in the said summons are as follows:

  1. There be stay of execution of all other and further proceedings to enforce and/or execute the judgment of this court dated 27th day of January 2017 pending the determination of the petition for special leave to appeal to the Supreme Court of Fiji.
  2. The court order dated 16th day of September, 2021 placed by the plaintiffs’ solicitors in due execution of the judgment in the within action against the 1st named defendant’s properties being State lease No. 23012, State Lease No. 23013 and Crown Lease No. 10267 be immediately withdrawn and/or removed and/or canceled and/or set aside and such order be granted as this Honourable Court deems just in favour of the plaintiff restricted to one property only that being on Crown Lease No. 10267 until the appeal is determined or otherwise as a safeguard and/or security for the plaintiffs’ monetary judgment granted by this court.
  3. Such other and further orders this Honourable Court deems just and expedient under the circumstances to ensure administration of justice.
  4. The costs of this application be costs in cause.

[4] The defendants did not appeal the judgment dated 27th January 2017 within the period prescribed by law. They subsequently made an application to the Court of Appeal seeking leave the appeal the judgment out of time and for stay of the execution of the judgment to the Court of Appeal. The Court of Appeal on 18th September 2020 refused the application of the defendants. The defendants then made an application to the Supreme Court seeking special leave to appeal the said decision of the Court of Appeal which is still pending.

[5] It is important to note that this is the second stay application of the defendants. The 1st application was filed by Amrit Chand Lawyers but it was not pursued, instead defendant’s fourth counsel Mr. Abhay Singh of A.K. Singh Law 23rd March 2018 filed summons seeking certain clarifications of the judgment which was refused by this court.

[6] Since the learned counsel for the defendants submits that his clients did not instruct some of the lawyers who appeared in court were not instructed to appear it is important to consider the history of this matter. Nand law has filed the acknowledgement of service of writ of summons and filed the statement of defence. On 11th May 2015 Tuifagalele Legal filed Notice of Change of Solicitors and represented the defendants until the date of the judgment.

[7] On 5th March 2018 Amrit Chand Lawyers filed Notice of Change of Solicitors and filed the an ex-parte notice of motion seeking an injunction restraining the plaintiffs from selling the Crown Lease No. 10267 which have already referred to above. On 23rd March 2021 Messrs A. K. Singh Law made the application for clarification of the judgment.

[8] Order 45 rule 10 of the High court rules Provides:

Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.

[9] Justice Amaratunga in Sharma v Singh [2021] FJHC 275; HBC230.2016 (12 October 2021) made the following observations:

In England and Whales Court of Appeal (Civil) decision R (on the application of BMW AG) v Re and Cust Customs Comrs, [2008] EWHC 712 (Admin);;[2008] STC 3090; [2008] EWHC 689; [2008] All ER (D) 114 (May) lifting a stay order of court below in the exercise of discretion held,

“That starting point is, however, by no means also the finishing point, because it is also equally well-established that the court has an unfettered discretion to order a stay of the order under appeal if the justice of the case demands it. In a case in which the question of the ordering of a stay arises, the role of the court is to make the order that best accords with the interests of justice. Where there is a ri harm harm to one party or the other, whichever order is made, the court has to balance the alternatives and make a decision as e course which is likely to occasion the least injustice. In;Leicester ster ster Circuits Ltd v Coates Brothers Plc [2002] EWCA Civ 474, Potte0 LJ said, at paragraph 13:

he proper approach oach is to make the order whict accords with the interesterests of justice. Where there is a risk of harm to one party or another, whichever order is made, the court habalane alternatives toes to deci decide which is less likely to cause injustice. The normal rule is for no stay, but where the justice of that approach is in doubt, the answer may well depend on the perceived strength of the appeal."(emphasis is mine)

The learned counsel for the appellant cited the decision in Federal Commissioner of Taxation v Myer Emporium Ltd (No. 1)(1986) [1986] HCA 13; 160 CLR 220; 4 April 1986 where it was observed:

It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal.

Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.

Per Dawson J. - Whilst I was initially inclined to accept the taxpayer’s submission, upon reflection I think that there is sufficient force in the argument advanced by the commissioner to cast doubt upon the power of this court to grant relief upon appeal as the taxpayer contends. I do not think that in these proceedings I have to go further than that; I do not have to conclude the issue. It is sufficient to say that in my view there is a real risk that if the judgment made by the Supreme Court is not stayed, the Commissioner may be prejudiced by the payment pursuant to a statutory obligation, of a substantial amount of money which will prove to be irrevocable notwithstanding the conclusion of the appeal in his favour.

In the case of Linotype – Hell Finance Ltd v Baker (1992) 4 All ER 887 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.

[10] The 1st defendant complains that he was not served with the writ of summons and statement of claim. However, Nands Law has filed the Acknowledgement of Service of Writ of Summons on 22nd July 2014 stating that the defendants intends to contest the proceedings. If the writ of summons and the statement claim were not served on the defendants they could not have filed the acknowledgement of service pursuant to order 12 rule 1 of the High Court Rules 1988. Therefore, the allegation that the writ of summons and statement of claim were not served on them has no basis.

[11] The defendants have changed their solicitors at every single step of the matter. Although the Mr. Sunil Kumar submits that the defendants did not know about this matter the 1st defendant could not explain from whom Tuifagalele Lawyers got instructions to appear for them in court. From the documents available to the court it appears that it was the 1st defendant’s sister who held a power of attorney to act on behalf of the 1st defendant who had given instructions to the lawyers.

[12] The learned counsel also submits the 1st defendant was mostly living in New Zealand and tendered a document titled Client Movement and under the heading Client Movement Summary it is stated that the 1st defendant had been in Fiji from 14th June 2014 to 25th October 2014 and these proceedings were instituted on 18th July 2014.

[13] In paragraph 12 of the affidavit in support the 1st defendant’s sister states his brother was denied his right to natural justice by the solicitors who represented him without his instructions. It cannot be believed that a counsel appeared for the 1st defendant without instructions. This in my view, is a baseless allegation.

[14] In paragraph 13 of the affidavit in support the 1st defendant’s sister states that if stay is not granted her brother’s appeal will be rendered nugatory. There is no appeal before the Supreme Court. It is only an application for leave to appeal out of time. Further, in paragraph 6 of the affidavit in opposition of the 1st defendant’s sister filed on 22nd October 2021 she states:

That I am advised by my donor and his Solicitors and I verily believe that same to be true that in response to paragraph 3 of the said affidavit, the Plaintiff and his Solicitors are playing around and abusing the court process by obtaining orders against my donor’s properties being State Lease No. 23012, State Lease 23013 and Crown Lease No. 10267 when they could have placed the same on one property which is the commercial Lot being Crown Lease No. 10267.

[15] Although the plaintiffs has included all three properties in the application for Charging Order, they are entitled to sell the properties only to the extent to recover the judgment sum. Therefore, including all three properties in the charging order will cause no prejudice to the 1st defendant.


[16] For the reasons aforementioned the application of the 1st defendant for stay must fail.


ORDERS

  1. The summons filed on 22nd October 2021 by the 1st defendant is struck out.
  2. The 1st defendant is ordered to pay FJD 1000.00 to the plaintiffs within 30 days from the date of this ruling.

Lyone Seneviratne

JUDGE

14th December 2021


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