Gosai v Nadi Town Council [2005] FJHC 355; HBC0063.2005 (29 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0063 OF 2005

BETWEEN:

JAGDISH CHANDRA GOSAI
PLAINTIFF

AND:

NADI TOWN COUNCIL
1^ST DEFENDANT

REGISTRAR OF TITLES
2^ND DEFENDANT

Mr G P Shankar for the Plaintiff
Mr M K Sahu Khan for the 1^st Defendant
No appearance for the 2^nd Defendant.

Date of Hearing: 28 July 2005
Dates of Submissions: 11 August and 18 August 2005
Date of Ruling: 29 September 2005

INTERLOCUTORY RULING OF FINNIGAN J

I have before me an interlocutory application by Summons for removal of a charge that the 1^st Defendant has lodged on the Certificate of Title of the Plaintiff. The Summons was issued on 6 April 2005.

The Plaintiff commenced his substantive action on 11 March 2005 by Writ of Summons. He seeks declarations about the lawful nature of what the 1^st Defendant has done, and order for an immediate removal of the registered charge and damages.

This interlocutory application is yet another case of a Plaintiff trying to short-cut his way to the substantive remedy which he seeks. He filed his action and then within 4 weeks sought to obtain his remedy by interlocutory relief. Sometimes this course of action may be justified by the urgency of an evolving situation. Very frequently in the past it has been a tactic employed by Plaintiff to try to obtain relief when the Courts substantive hearings were falling further and further behind. By doing so they contributed to the problem. In March and April 2005 the Court had taken control of the hearing lists. Substantive hearing dates were being allocated and the Court had begun to discourage the filing of such application as this. These comments are not a reflection on Counsel but since this application was filed the profession has readily accepted the Court’s insistence that it concentrate on substantive remedies except where interlocutory remedies are in fact actually warranted.

The present application will be dismissed, but not for those reasons. It would be dismissed because the Court has accepted the Plaintiff’s action which raises serious issues to be tried. It will not resolve the substantive issues in that action on untested affidavits. The issues must go to trial. I have had the benefit of very full and very helpful submissions from both Counsel for the Plaintiff and Counsel for the 1^st Defendant. Both Counsel are to be complimented for the quality of their submissions. Their effect however is only to reinforce the clear fact that the parties to this action have been locked in a tussle for a long time. The 1^st Defendant claims to be acting as a responsible local authority in the interests of the wider community. It wants to obtain a drainage easement so that an entire subdivision can benefit from the flow-off of surface water. The Plaintiff’s property is at a key point in the drainage route. The 1^st Defendant says that the Plaintiff’s rule dispute may be over the amount of compensation he’s been offered.

What has occurred is a common situation. Normally the parties eventually resolve it between themselves. Sometimes the local authority asks the Court to intervene. In this case the property owner has come to Court. To get his remedy he must come to Court give his evidence and challenge the evidence of the 1^st Defendant. I dismiss this interlocutory application with costs.

I make the following Orders;

1. Dismissing this application;
2. Listing the matter for 25 November 2005 callover so that a hearing date can be allocated;
3. Costs to the 1^st Defendant summarily assessed at $500.00.
   

D.D. Finnigan
JUDGE

At Lautoka
29 September 2005