Ocean Shores Estates Ltd v Karavaki [1998] FJHC 120; Hba0468j.1996s (11 August 1998)

Fiji Islands - Ocean Shores Estates Ltd v Karavaki - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTIO468 OF 1996

BETWEEN:

OCEAN SHORES ESTATES LIMITED
Plaintiff

AND:

RATU MOSESE RATUMAITAVUKI
Defendants

Mr. T. Fa for the Plaintiff
Mr. Savu for the Defendants

JUDGMENT <1"> This is the Piff's Originating Summons for an Order that it do recover possession of the property compriomprised in C.T. No.1873 Lot 2 on DP 4515 situate at 29 Wairua Road, Tamavua, Suva.

On 6 March 1997 I gave a decision herein in which I decided that in the circumstances os case an open court hearinearing is required in this action. I said that the provisions of Or.28 r.9 of the High Court Rules (i.e. continuation of proceedings as if cause or matter begun by writ) could be invoked in this situation.

The hearing in open court tooce today.

During the hearing Mr. Fa withdrew against the first defendant as there was already an order of this Court for vacant possession against him made on 12 June, 1987. The fact that there was this Order was not disclosed to Court before when I heard the section 169 application as it appears the Plaintiff was not fully aware of that.

The case proceeded against the second and third dents. The Plaintiff's witness Mr.Vijay Prakash Maharaj, a Di a Director of the Plaintiff Company, testified that the Plaintiff is the registered proprietor of the said property and that a notice to quit was served on the defendants but they failed to vacate. He said that they have no right to possession of the portion of the said land which they occupy.

The defendants were not present at earing. Hence no evidence was adduced on their behalf.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Mr. Savu addressing the Court said that the defendants are not present alt they were informed of the the hearing date. Therefore he says he cannot show any cause as required under s172 of the Land Transfer Act Cap 131. He said that the only thing he could ask for is to give the two defendants time to vacate.

On the above facts, and Mvu for the defendants conceding that no cause can be shown as to why the defendants should ould refuse to give possession, the order sought by the Plaintiff has to be made .

In the circumstances upon hearing counsel for the Plaintiff and upon hearing counsel fordefendants (D2 & D3) an3) and upon considering the evidence of Mr. Maharaj, I find that, as required under s172 of the Act, the two defendants have not shown cause as to why they refuse to give possession of the land in question.

I therefore make an Order foediate vacant possession of the said land but by consent there be no execution until 31 Dec1 December 1998 with each party to bear his own costs.

D Pathik
JUDGE

At Suva
11 August 1998

: 1"> Hba0468j.96s