Kadavu v Housing Assistance and Relief Trust [2000] FJHC 128; Hbc0429j.2000s (30 November 2000)

Fiji Islands - Kadavu v The Housing Assistance and Relief Trust - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0429 OF 2000

Between :

RANADI KADAVU TIMAIMA TAVITE

Plaintiffs

- and -

THE HOUSISISTANCE

AND RELIEF TRUST

MERE ROKOSAWA

Defendants

Mr. R. Naidu for the Plaintiffs

Mr. F. Haniff for the Defendants

JUDGMENT

By its amended inter partes motion the plaintiffs jointly seek a mandatory injunction requiring the defendant trust to `permit them access to their Housing Assistance Relief Trust (HART) home situated in the Hart Village, Newtown, Nasinu’.

The brief background to the case is that thentiffs are women whose husbands deserted them leaving them to raise five (5) childreildren and two (2) children respectively with little or no regular source of income except for social welfare assistance and earnings from casual domestic work that both plaintiffs are able to obtain. By no stretch of the imagination can the plaintiffs be described as either financially well-off or comfortable.

The first defendant is a registered charitable trust whose objects and functions includes inter alia :

`(1) &nbspacqu re and maintmaintmaintain land for special low cost housing projects and self-help housing settlements for:

(a) ; &nbs;&nnbp;&&nbs; &nbs; &nbbp;&nassistance ance and benefit of destitute families ;

(bn style="font:7.0pt "Times New Roman""> &nnbsp;;&nspp;nbsp;nbsp;&nbp; &nnbsp;;&nspp; span>families for whose average income is less

than an average incomencome of t of the Gohe Government

of Fiji unestablished workers at the time ;’

One such settlement was established and maintaby the defendant trust in Newtown, Nasinu and was where the plaintiffs lived with thth their children since 1994 until the 25^th and 26^th of September this year when both plaintiffs and their families were evicted from their respective Hart homes.

Prior to their eviction the second defendant who is the Executive Secretary of the defendant Trust deposed that she had verbally warned both plaintiffs on 10^th September that they were required to vacate on 16^th September and that was confirmed in a letter to each plaintiff dated 14^th September. Neither plaintiff vacated however and on the 25^th September and 26^th September their homes were `made secure’ with their belongings still inside.

Clearly then the plaintiffs eviction was not something that occurred summarily or in circumstances that required their urgent eviction without notice in order `to save life or limb’ or to prevent the eminent destruction of property.

Be that as it may econd defendant who is the Executive Secretary of the defendant Trust deposeeposed that `in cases of urgency it is necessary to take immediate steps and this was the case in respect of both the 1^st and 2^nd plaintiffs’. In particular she deposed of the first plaintiff :

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`... her eviction became necessary on account of the intolerable and annoying anti social behavof her son Alipate Kadavu aavu and herself ... between April and September 2000'.

ass=MsoN=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> If I may say so, given the sworn fact by the first plaintiff ter wayward son `Alipate Kadavu was living with me at e at the HART until May 15, 2000 when at the recommendation of the (2^nd defendant) Alipate Kadavu went and lived with his father at Cummingham Road (and) at the time of eviction ... Alipate Kadavu was not living with me’, the inclusion of her son’s so-called antisocial behaviour (pre-May 2000) as a reason for the first plaintiff’s almost summary eviction in late September 2000, is an unfortunate afterthought seemingly advanced to bolster the defendant’s case against the first plaintiff.

As for the specific allegation against the first plaf personally, the Executive Secretary deposed :

`The plaintiff herself is one of the leaders of a religious movement which continuously held noisy religious gathe at the Newtown Hart Villagillage and in particular held noisy prayer meetings in her flat. There was often organised noisy singing outside her flat which caused annoyance to other tenants in the Village.’

Similarly, in the second plaintiff’s case, the Executive Secretary depos/span>

`(she) so conducted numerous noisy prayer meetings in her flat as one of the leaders of the religieligious group to which she and the first plaintiff were affiliated. This group has caused considerable disruption within Newtown HART Village and held very noisy prayer meetings in the flats in the village and also group meetings which leads to the 2^nd plaintiff running up and down the path shouting at the top of her voice. The group was also associated with noisy singing conducted outside the 1^st plaintiff’s flat on 10^th September, 2000.’

The plaintiffs for their part whilst admitting being actively involved in a religious congregation cathe FAITH Ministry wtry which ministers to the tenants at Newtown and other Hart Villages, categorically `deny that our prayer meetings are noisy’ or that there are `any disruptions caused to the peace in the village through our religious gatherings as alleged’ and both plaintiffs attribute their summary eviction to `a personal vendetta (by the Executive Secretary) against us due to our involvement with the Faith Ministry’ as evidenced by the unjustified and unreasonable circumstances of their eviction and a letter signed by the 2<sup>nd</sup> defendant dated 29<sup>th</sup> August 2000 denying use and access by the Faith Ministry, to `all HART properties within the HART Village boundaries including HART Community Halls, Tenants flats, Offices etc’.

In the absence of any leareement tenants of Hart homes are bound by `RULES FOR TENANTS OF HART HOMES’ enacted by the defendant TRUST. For present purposes it is only necessary to set out the following Rules :

`1. &nbbsp; If youf you wish to vacateacate, you must tell HART at least one month before. If HART wants you to vacate, HART must tell you at least a month before;

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4. & p;&nbbsp;&bsp;&nbp;&nbp; ;&nbssp; &nsp; The house mut not be used for any pe othan to live in;

5. &nnbsp;;&nspp;&nsp; &nsp; &&nsp; &nbbp;&nnbsp; Ypan>You must not do anything to offend people living nearby;

n lanGB>&n/span>

20. (c) All ministf religion are tare to meet members of their congregation in the community hall;

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23. &nIsp; y anthef bovearulesrules are broken the following disciplinary action will be taken:

(a) &nnsp;&&nsp;;&nspp;&nssp;&nsp; Verbal wa by gillagillage Turaga-ni-koro

(b)B>(b) & p;&nssp;&nsp; &nsp; ;&nbpp; spanteritten warning by g by village Turaga-ni-koro

: 1"> (c) ;&nspp;&nssp;  p; &nbp; &nbp; Verbrnina by field ield staff

(d) (e)ot;">&nbsp &nbssp; &nsp; &nbbp;&nnbsp; &nb/span>Action tion letteretter by Executive Secretary;

24. &nbbsp;& Isp; If you you observe all the conditions mentioned above HART will allow you to enjoy your home without disturbance.’

Nowhere in the Rules is a power or right to summarily evict a tenant granted to anyone but in its Statement of Defence the defendant TRUST avers that `(it) retains the implied right to evict any tenant without giving one month’s notice in circumstances where the safety and well-being of other tenants requires urgent action’.

In this latter regard the Executive Secr who claims to be vested with `... the ultimate authority on eviction ... under Rder Rule 23(e) ...’, deposed that as a result of the activities of the religious group of which the plaintiffs were leaders `... the situation was deteriorating rapidly to a situation of rebellion within the Village. I then decided it was necessary to move quickly by removing the two families concerned in order to restore calm to the Village. I felt I could not achieve this by giving one month’s notice and I considered it was necessary to act urgently and decisively to remove the nuisance’.

Noticeable by their absence however, are any prior written warnings e Executive Secretary of any noise nuisance and dist disturbances caused by the plaintiffs’ religious gatherings or any affidavit by neighbouring tenants who were in fact disturbed by the plaintiff’s noisy gatherings as might be expected.

This absence is made all the more nt in the context of the plaintiffs’ proffered reason for their `summary’ evi> eviction but also, because the Rules themselves envisages and permits the holding of religious gatherings `in the community hall’ [see : Rule 20(c) above].

Be that as it may, it is sufficiently plain from the above that the plaintiffs were evicted without the benefit of a months notice as required under Rule 1 (op.cit) and, in the absence of an implied right in the defendants to summarily evict a tenant, the actions of the defendants must be considered prima facie in breach of the above Rule.

I am grateful to cou for their helpful written submissions and references to authorities.

Counsel for the plaintiffs forcefully submits that the plaintiffs have established from thefidavits a strong prima rima facie case of breach by the defendants of Rules (1), (23) & (24) of the Tenancy Rules. Furthermore counsel submits that given the personal financial circumstances of the plaintiffs the finding of alternative accommodation is not even a viable alternative for them. Quite simply `homelessness is not compensatable in damages’.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Defence Counsel on the othnd equally forcefully, submits that :

`It would be impossible for HART to run the conduct of the establishment without having the power to remove people for disruptive activity. The question then becomes what is the degree of disruption required in a controlled community to remove people for disruptive behaviour .’

and this question, counsel submits, ought to be left for eventual determination at the trial. In the meantime `maintaining the status quo would be far less of a risk then if the plaintiffs were allowed back into their homes’. I cannot agree.

In my considered view the `status quo’before the defe defendants summarily altered it in prima facie breach of its own Tenancy Rules.

In not dissimilar circumstances in Thompson v. Park (1944) 1 K.B. 408 Goddard L.J. n rejecting a similar submisubmission in that case said at p.409:

`Having got back into the house, to use the words of the (Forcible Entatute) with strong hong hand and with multitude of people, he has established himself in the house, and he then says : `I ought not to have an injunction given against me to make me go out because I got back here ... and therefore, I want the status quo preserved.’ The status quo that could be preserved was the status quo that existed before these illegal and criminal acts on the part of the defendants. It is a strange argument to address to a court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and to say that that would be preserving the status quo and a good reason for not granting an injunction.’

[See also : The observation of Lord Uthwatt in Winter Garden Theatre (London) v. Millenium Productions (1948) A.C. 173, 203.]

I am satisfied in this case that the plaintiffs have established a strong prima facie case, that damages areolly inadequate remedy and and that the balance of convenience favours the maintenance of the status quo before the plaintiffs eviction.

Accordingly in the exe of my discretion I grant the plaintiffs the orders sought in the amended motion of 1717^th October 2000 effective forthwith together with costs summarily assessed at $400.00 payable within 7 days of the date hereof.

D.V. Fatiaki

ass=MsoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> > JUDGE

At Suva, 30^th November, 2000.

HBC0429J.00S