Mahabir v Dulari [1997] FJHC 148; Hba0014j.96s (10 October 1997)

Fiji Islands - Mahabir v Dulari - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CIVIL APPEAL NO. 14 OF 1996
(Magistrate's Court C.A. No. 1/94)

BETWEEN:

MAHABIR
s/o Bhanai
Appellant/Original Plaintiff

AND:

RAM DULARI
d/o Shiu Sharan
Respondent/Original Defendant

Mr. R. Chand for Appellant
Mr. J. N. Singh for Respondent

JUDGMENT

This is the Appellant's motion for an order that the "Order and any form of execution made on 2 July 1996 by the Magistrate's Court, Nausori be stayed until the hearing and determination of the Appeal filed herein" upon the grounds set out in the affidavit of AMI CHAND (Appellant's son) under a Power of Attorney.

In his Ruling of 2 July, 1996 the learned Magistrate made an order that vacant possession be granted to the Respondent RAM DULARI and that the Appellant vacate the land in question within 28 days from the date of the Ruling with $250.00 costs against him.

The Appellant had on 9 August 1996 lodged an Appeal against the Ruling and in the meantime made an application for a stay of execution of the Order which was rejected by the learned Magistrate without a hearing. The Appellant is therefore making the present application to this Court for a stay.

Appellant's contention

The land in dispute is all that piece of land known as Matakuro No. 4 in the Tikina of Bau, Province of Tailevu having an area of 5 acres 3 roods and 18 perches described in Native Lease Number 9156 (hereafter referred to as the "land") and originally granted to one BHOLAI, father's name Palli late of Kuku, Bau prior to 1953 which was renewed on 1 February 1953.

The said AMI CHAND traced the history of the land. In short the land eventually came to be in the name of SHIU SHARAN and RAM NATH. He said that about 7 September 1960 the Appellant paid a deposit of fifty pounds for purchase of Nath's half undivided share. Ever since then he enjoyed the sole use of a portion of the land. He then built a four bed-room house and expended a total of $10,200.00 (for ploughing $2000, building house $7000 on extensions and renovations $3000).

The Appellant through his attorney Ami Chand is alleging fraud in regard to the transfer of land to the Respondent.

Respondent's contention

The Respondent said in her Affidavit that the Appellant came on the land in 1957 and not 1953. The payment of fifty pounds was for the purchase of wooden building and not for the purchase of Ram Nath's share. As for the construction of the house it is illegal as no prior consent of NLTB and Director of Town and Country Planning was obtained. The NLTB denied that it had anything to do with "illegal dealing".

The Respondent opposes this application stating that the Appellant is in illegal occupation of the land. She also alleges that the Appellant failed to file Grounds of Appeal within one month from the date of the decision as required by order XXXVII 111(3) of the Magistrates' Courts Rules Cap. 14.

Consideration of the issue

The learned counsel for the Appellant argued orally and Mr. Singh went through a written submission which he handed in to the Court. I have considered both the submissions. The sole issue for my determination is whether I should grant the application in the circumstances of this case.

Mr. Chand complains, and it is clear from the Record, that the learned Magistrate had on 6 August 1996 without hearing counsel on his application for a stay refused it by letter through Clerk of the Court (p.18 Record). In fact he suggested that the Appellant should appeal against his decision.

The learned Magistrate should have given the Appellant a hearing. It is difficult to know the reason for rejecting the application out of hand. In this situation the Appellant had no alternative but to come to this court and re-apply.

Mr. Singh for the Respondent made a lengthy submission on the merits of the case which in my view would be more

relevant at the hearing of the Appeal but I should not be understood as rejecting his arguments. However, on the other hand, the Appellant has filed certain grounds of appeal alleging, inter alia, fraud in relation to the transfer of the land in question and at the same time asserting his right to remain on the land. There appears to be an arguable case.

Bearing in mind the facts and circumstances of this case and the Grounds of Appeal that have been filed I consider that the Appellant should be permitted to proceed with his Appeal and for that purpose the grant of a stay is necessary and no prejudice will be caused to the Respondent for after all the Appellant has been on the land for such a long time. This way the Court will be able to decide all the issues between the parties. I see no merit in the Respondent's contention that the Grounds of Appeal were filed out of time when one takes into account that it was the next day after the learned magistrate refused the application without a hearing that they were filed.

In the outcome the application for stay is granted pending the hearing and determination of the appeal herein. The costs are to be costs in the cause.

D. Pathik
JUDGE

At Suva
10 October 1997

Hba0014j.96s