HP Kasabia Brothers Ltd v Bibi [1993] FJHC 72; Hbc0046j.93s (26 August 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 46 OF 1993

Between:

H.P. KASABIA BROTHERS LTD.
Plaintiff

- and -

HAZRA BIBI
d/o Mohammed Ismail Khan
Defendant

Mr. G.P. Lala for the Plaintiff
Defendant in Person

JUDGMENT

This is an application under Section 169 of the Land Transfer Act seeking vacant possession of a small part of a piece of freehold land of which the plaintiff company is and has been the registered proprietor since 10th June 1992.

Vacant possession is sought on the basis of a written 'notice to quit' served on the defendant and acknowledged by her.

In such an application as this the person summoned is required to "... show cause why he refused to give possession of such land ..." by proving to the satisfaction of the Court "... a right to possession of the land".

In this latter regard the defendant has filed an affidavit with several annexures briefly outlining the course of dealings between the estate of her late husband of which she is a trustee and the plaintiff company and claiming a sum in excess of $35,000 being the amount of interest the estate allegedly lost as a result of the plaintiff company failing to settle on time.

In fact the transfer of the property to the plaintiff company was not registered until the 10th of June 1992 almost 6 months after the Sale and Purchase Agreement was executed and this has given rise to an additional claim by the defendant for rental arrears for the period between execution and the transfer.

I note however that the settlement clause of the Sale and Purchase Agreement provides that:

"4. The date of settlement shall be within thirty (30) days hereof or such other date as may be mutually agreed in writing between the parties."

No agreement in writing has been produced but in any event the plaintiff company has furnished sufficient evidence to show that rental was paid to the defendant up to and including the month of June 1992 (as confirmed by relevant corresponding entries in the bank statement of the Estate of Madar Buksh).

Be that as it may the defendant has sought to show through a document entitled "Mortgage Loan Analysis" and various "discrepancies" as to the outstanding monies allegedly owed by the defendant estate to the plaintiff company, that in valuing its interest in the assignment of the plaintiff company's interest to the mortgagee bank it had improperly included rental monies that had been paid but had not been accounted for.

With respect however the defendant is not a party to the 'Assignment Deed' between the plaintiff company and the bank and although it claims to be indirectly and adversely affected by the "discrepancy" this is neither an appropriate procedure or action for the resolution or determination of that matter.

There is no doubt in my mind that the defendant firmly believes that she has a valid claim to an account but with all due regard to her claim that cannot be elevated to a "... right to possession of the land ..."

If anything it ought to be the subject matter of a separate civil claim for accounts and can not be used as a means to hold the plaintiff company "to ransom" so to speak.

The application succeeds, there will be an order for immediate vacant possession with execution stayed for 21 days from the date of service of the order upon the defendant.

(D.V. Fatiaki)
JUDGE

At Suva.
26th August, 1993.

HBC0046J.93S