Vunisa v Vosuga [2004] FJHC 423; HBC0131.2003L (10 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0131 OF 2003L

BETWEEN:

TIMOCI BETENIKA VUNISA
Plaintiff

AND:

SEKOVE VOSUGA
Defendant

Counsel for the Plaintiff: Mr. A. Patel
Counsel for the Defendant: Mr. I. Khan

Date of Hearing & Judgment: 10 June 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of a Notice of Motion filed on behalf of the defendant which seeks that orders made by Mr. Justice Byrne on the 23^rd of May 2003 be stayed unconditionally and that the enforcement of those orders be stayed until a final determination by the court.

The orders of the 23^rd of May 2003 were orders made by the court on a Summons issued by the plaintiff for possession of land occupied by the defendant.

The history of the matter as it appears from the documents filed is that the defendant was the occupier of the land and the mortgagor pursuant to a mortgage to the Housing Authority. The Housing Authority claimed that the defendant had defaulted on his repayments and caused a Re-entry Notice to be served on the defendant on the 19^th of October 2000.

Following the service of that notice, the property was sold by the Housing Authority. The plaintiff then became the registered proprietor. The plaintiff then sought possession of the property that he had purchased.

In support of the Notice of Motion, the defendant claims he was not served with the Summons and Affidavit in Support and accordingly he was not aware of the proceedings commenced by the plaintiff seeking possession of the property and that the orders were made in his absence.

The plaintiff is, as I have said, the registered proprietor of the land, he having acquired it from the Housing Authority as a result of the alleged default of the defendant.

Even if it be true, that the defendant did not receive the Summons and the Affidavit in Support, whereby the plaintiff sought possession of the property then it would seem that the defendant would still have no rights as against this plaintiff. If it is that the contentions made by the defendant in his affidavit be correct, that is that he had not defaulted on the mortgage then any action that he has would appear to be against the Housing Authority and not the plaintiff in these proceedings.

To grant the orders sought would do no more than deprive the plaintiff of possession of the property he has acquired, that is not a course I propose to take.

The Orders of the Court will be: -

1. The defendant’s Motion dated 13 August 2003 be dismissed.

JOHN CONNORS
JUDGE

AT LAUTOKA
10 JUNE 2004