Gosai v Gosai [2005] FJHC 352; HBC0131.2005 (16 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0131 OF 2005

BETWEEN:

ATIL CHANDRA GOSAI
PLAINTIFF

AND:

PARMEND GOSAI
1ST DEFENDANT

NADI EARTHMOVING CONTRACTORS LTD
2ND DEFENDANT

Mr G.P. Shankar for the Plaintiff
Mr H A Shah for the Defendants

Date of Hearing: 8 July 2005
Dates for Submissions: 22 July, 5 August and 12 August 2005
Date of Judgment: 16 September 2005

JUDGMENT OF FINNIGAN J

The Plaintiff by Originating Summons seeks orders that the Defendants within seven days remove all gravel, tanks, spares and accessories or machinery and debris from the Plaintiff’s land, or in the alternative an order that he be at liberty to employ labourers to clear the property of the Defendant from his land. He also seeks costs.

In submissions Plaintiff’s Counsel changes that to an application for an order for possession and for damages to be assessed with costs on an indemnity basis. None of these latter remedies are open on the summons that was filed.

The Plaintiff filed an affidavit in support of the summons. The Defendants were given time and filed an affidavit in reply. Thereafter Counsel were given a timetable for submissions. The timetable has expired and I now deliver my judgment. As mentioned, the Plaintiff filed submissions but the Defendant did not.

The only actions taken by the Defendants in this matter were (1) to file an “Acknowledgment of Service of Writ of Summons” and (2) to file a five paragraph affidavit. In the affidavit they say there has been no subdivision of the subject property to demarcate the boundaries between the respective areas of the parties. The affidavit is sworn by the 1^st Defendant on behalf of both Defendants. He and the 2^nd Defendant occupy the part of the land in question which belongs to the 1^st Defendant. The 1^st Defendant says that he “takes issue with the Plaintiff that the alleged debris is on his property”.

The land in question is a little more than 3 acres. The Plaintiff owns two thirds (2/3) of it. One sixth (1/6) is owned by his father. The other 6^th is the part occupied by the two Defendants and is owned by the 1^st Defendant’s father. The Plaintiff has put in a plan informally annexed to this affidavit which by black lines shows the respective areas occupied by the 3 registered owners. He says each owner has occupied his respective area since 1970. He says the boundaries are marked by fences.

Decision:

By the evidence of both parties it is clearly established that the parties have rights to clearly defined parts of the 3 acre block. The Defendants do not deny the Plaintiff’s allegations that they are dumping gravel, tanks spares and machinery on his part of the land. He clearly is entitled to quiet possession of this part of the land and the Court orders accordingly.

I make the following Orders which are in the terms of the Originating Summons;

1. An order that the Defendant do forthwith and in any event within 7 days remove all gravel, tanks, spares and accessories or machinery and debris from Plaintiffs 2/3^rd share of freehold land comprised and described in CT No 7081 and situated at Waqadra (part of), and to clear and vacate the Plaintiff’s said property.
   
2. That alternatively in default of Defendant complying with order made by the Court the Plaintiff be at liberty to employ labourers to have all things chattels, debris and goods of Defendants removed from Plaintiff’s 2/3 rd shares in the freehold property comprised and described in CT No.7081 and situated at Waqadra (part of) and have the Plaintiff’s said property cleared and vacated and all costs and expenses.
   
3. That the Defendants pay the Plaintiff’s costs, I assess these summarily at $800.00.
   

D.D. Finnigan
JUDGE

At Lautoka
16 September 2005