Mahesh Prasad v. Sohan Singh

• Jurisdiction: Fiji
• Judgment Date: 21 April 2017
• Date: 21 April 2017
• Docket Number: Civil Appeal No. HBA 09 of 2013
• Counsel: Appearance: Mr N. Padarath for Defendant/Appellant,: Ms V. Lidise for Plaintiff/Respondent
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

(WESTERN DIVISION) AT LAUTOKA

Civil Appeal No. HBA 09 of 2013

(On an Appeal from a Judgment given by the Learned Master of the High Court of Fiji at Lautoka on the 30^th of April 2013 in District Registry HBC No. 60 of 2012)

Between:

Mahesh Prasad of Tagitagi, Tavua, Cultivator.

Defendant/Appellant/Applicant

v.

Sohan Singh of 5917 Trawlerway, Citrus Heights, Sacramento, CA 95621, United States of America.

Plaintiff/Respondent/Respondent

Date of Hearing: 27 February 2017

Date of Ruling: 21 April 2017

Appearance: Mr N. Padarath for Defendant/Appellant

: Ms V. Lidise for Plaintiff/Respondent

Solicitors:

M/s Samuel K Ram, Barristers & Solicitors for the defendant/appellant/applicant

M/s Young & Associates for the plaintiff/respondent/respondent

RULING

[On stay of execution]

Introduction

[01] This ruling concerns with an application for a stay of enforcement of judgment pending appeal.

[02] By an inter partes summons filed 31 May 2016 (‘the application’) the defendant/appellant/applicant (‘the defendant’) seeks the following orders:

• 1. That all orders made by the High Court on the 27^th of April 2016 including the orders for costs, the order that the appeal to be dismissed and for the Appellant to vacate premises situated at Tagi Tagi, Tavua on land known as Lot 22 on RR 916 Tagitaginatua Subdivision in the Tikina of Tavua, Province of Ba containing 7 acres, 2 roods and 15 perches (NLTB No: 4/04/38908) and comprised in Native Lease No. 29433 be stayed pending the determination of this appeal;

• 2. The time for service and filing of this application and any Appeal be abridged, if needed;

• 3. That the costs of this Application be costs in the cause.

[03] The application is supported by two affidavits of Mahesh Prasad (the defendant) sworn on 31 May 2016 and 29 July 2016 respectively.

[04] The plaintiff/respondent/respondent (‘the plaintiff’) opposes the application and he filed an affidavit of Balbir Singh (Attorney of the defendant) sworn on 12 July 2016.

[05] At the hearing, both parties made oral submissions. The defendant also tendered skeleton submission. The plaintiff sought 7 days to file his written submission. However, the plaintiff did not file any.

[06] In the interim, I granted an interim stay on execution of the judgment on an application made by the defendant.

The Setting

[07] Sohan Singh, the plaintiff as the last registered proprietor of the property (land) institutes summary proceedings against Mahesh Prasad, the defendant pursuant to s.169 of the Land Transfer Act seeking vacant possession of the property. On 30 April 2013, the Master of the High Court, after hearing the matters on affidavit evidence delivers a ruling and orders that the defendant delivers up possession of the property to the plaintiff. The defendant appeals the order to the judge of the High Court. On 27 April 2016, the judge dismisses the appeal. The defendant appeals to the Fiji Court of Appeal. In the current application, the defendant, seeks a stay of the execution of the judgment pending determination of the appeal.

The Law

[08] Order 34 of the Court of Appeal Rules (‘CAR’) would be applicable to an application for stay of execution. That rules so far as material provides:

“34.- (1) Except so far as the court below or the Court of Appeal may otherwise direct-

• (a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;

• (b) no immediate act or proceeding shall be invalidated by an appeal.

(2) …'

The Governing Principle

[09] The relevant questions to be asked when considering an application for stay of execution include:

• (a) If a stay is refused, what are the risks of the appeal being stifled?

• (b) If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment?

• (c) If a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the...