IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA
Miscellaneous Application No. 53 of 2011
(Arising from Civil Side No. 289 of 2001)
Heirs of Josselin Bossy Represented by P Smith==============Respondent
Frank Elizabeth for the Applicant/defendant
Sammy Freminot for the Respondent/plaintiff
The applicant is seeking an order for stay of execution of the judgment in the head suit pending the hearing of the applicant’s appeal to the Court of Appeal over a decision of this court made on 31st March 2011 which find that the applicant/defendant had failed to comply with the judgment of the Court of Appeal dated 29th November 2006.
The grounds of the application are set out in the affidavit of Mr Paul Chow sworn on 13th April 2011. I shall set out the relevant portions thereof,
‘5. I aver that my appeal has merit and is not frivolous or vexatious. 6. I aver that my appeal raises serious questions of legal procedure, facts and law. 7. I make this application in good faith and I aver that no prejudice will be caused to the respondent. 9. I aver that I have an overwhelming chance of success in my application and that it is just and necessary that execution be stayed pending the final determination of my appeal by the Seychelles Court of Appeal. 10. I aver that I have an arguable case on appeal. 12. I aver that if the respondent is allowed to execute the said judgment now and then I am successful in my appeal, any judgment given by the Court of Appeal would be redundant. 13. I aver that it is practical and in the interests of justice for the court to make the order sought.’
The respondents oppose this application. In his affidavit in opposition Mr Paul Smith states in part,
‘2. That Mr Paul Chow is not in a position to question the authenticity of the judgment of the Chief Justice. 3. That Mr. Paul Chow has failed on two occasions to appear in court to defend himself. 4. That on 14 February, Mr F. Elizabeth, counsel for Mr Chow, was told to bring all his witnesses to court on 4 March 2011 for a whole day hearing. No witnesses appeared. He is not in a position to raise objections on matters of procedure and law. 5. That Mr Chow’s good faith must be doubted since he and his counsel have managed to extend to more than 24 months a procedure which, according to agreed standards, should have taken 2 months. Further prejudice will indeed be caused to me. Having already made and borne the cost of 19 flights from South Africa I will have to make yet more trips the longer execution is stayed and I have to wait for justice. My fellow heirs and I are even further prejudiced by Mr Chow living in our house and denying us access to our land—a property valued in excess of R 24,00,000 (or R6,575 per day in lost earnings while the applicant pays no rent. 6. That Mr Chow has no chance of success in his proposed appeal. Surely there must be an end to litigation? It will be déjà vue for the Court of Appeal.’
In considering whether or not to grant a stay of execution the court may have regard to the following principles, as enunciated in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, at page 694:
(a) The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all the parties.
(b) The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.
(c) The court has a discretion involving the weighing of considerations such as balance of convenience and competing rights of the parties.
(d) Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
(e) The court will not generally speculate upon the appellant’s prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.
(f) As a condition of a stay the court may require payment of the whole or part of the judgment sum or the provision of security.
It was the decision of this court, in compliance with the Court of Appeal decision that the lease, the subject matter in this suit, was rescinded effective 29th November 2008. The applicant has remained in occupation of the property since then today without a running lease or the permission of the owners of the property. The original judgment of the Supreme Court ordered him to pay arrears of rent up to 28th February 1998 of R11,627.00. From 28th February1998 up to the rescission of the lease on 29th November 2008 applicant has not paid any rent during the subsistence of this case. Neither has he paid any compensation for period since 29th November 2008 when he has continued to retain possession of the formerly leased property.
The applicant is enjoying the property without payment of any rent or other compensation. The judgment of the Court of Appeal did not make adjustments to the trial court order with regard to rent. The result is that the respondents are suffering great prejudice, much as they are the judgment / decree holders, while the applicant is enjoying the property over which any rights he may have had have long ceased and for which the owners are deriving no benefit.
The applicant has suggested that his appeal will be rendered redundant without demonstrating how that would happen. I do not accept that execution or denial of a stay of execution would render his appeal redundant. He can always re-gain possession if the lease is found to be still in existence.
As to whether he has an arguable case or the probability of success of his appeal I will decline to make any observations as no information has been available to me under this head.
Given the competing rights of the parties, the prejudice suffered by the respondents, unlike the applicant who has the best of both worlds, out of lease and in possession of the property, the balance of convenience in my view lies with refusing this application rather than granting it. This application is dismissed with costs.
Signed, dated and delivered at Victoria this 4th day of July 2011