Sorenson v Devi [1993] FJHC 20; Hbc0359d.92s (5 March 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 359 OF 1992

Between:

GALE EMILY MOANA SORENSON
Plaintiff

- and -

KIRAN DEVI alias KRISHNA DEVI
d/o Ram Kirpal
Defendant

Mr. G.P. Shankar for the Plaintiff
Mr. M.B. Patel for the Defendant

RULING

This is a contested application for vacant possession of a property comprised in Crown Lease No: 3922 of which the plaintiff is 'the last registered proprietor'.

In support of the application the plaintiff's attorney has sworn an affidavit claiming inter alia that the defendant was "not a tenant and has never been a tenant" and further her 'licence' to occupy the property had been terminated. No 'Power of Attorney' or 'Notice to Quit' has been annexed as might be expected.

Be that as it may the defendant for her part whilst denying that she is not a tenant asserts a right to continue to occupy the property on the basis that she and her children were permitted by the plaintiff's attorney to occupy the premises at a time when she was the plaintiff's attorney's 'de facto wife'. She further asserts that the plaintiff's attorney represented to her that he was the registered proprietor of the land.

It is clear in my view that whatever 'rights' the defendant may have acquired and whatever 'claims' she may have against the plaintiff's attorney personally, cannot and does not entitle her in any way shape or form to continue to occupy the plaintiff's premises.

If I may say so whatever the personal relationship maybe that existed between the plaintiff's attorney and the defendant, that relationship cannot found a 'cause of action' against the plaintiff much less can any 'equity' arising therefrom raise a 'shield' to the plaintiff's claim for vacant possession of her land.

Furthermore the defendant's letter to the plaintiff's attorney of May 12, 1992 appears to accept that her 'licence' to remain in occupation of the premises had been terminated. Additionally her reference to the attorney's "generosity" and her offer to pay rent for the premises for a month is somewhat inconsistent with the existence of a legal tenancy.

At its highest the defendant's claim (if any) raises some form of 'equitable estoppel' against the plaintiff's attorney in his personal capacity. In the absence of any evidence or argument that such an 'equity' could or does bind the plaintiff I am not satisfied that the defendant who bears the burden of proof in this instance has established a right to possession of the plaintiff's land.

Accordingly I make an order for vacant possession in favour of the plaintiff with execution stayed for 2 weeks from the date of personal service of the order upon the defendant.

(D.V. Fatiaki)
JUDGE

At Suva,
5th March, 1993.

HBC0259D.92S