Tunivono v Seruvatu [2005] FJHC 550; HBC0381.2004 (30 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0381 OF 2004

BETWEEN:

PITA SERUVATU TUNIVONO
PLAINTIFF

AND:

PITA SERUVATU
DEFENDANT

Counsel for the Plaintiff: Maharaj Chandra & Associates
City Agents: S.B. Patel & Co.
Counsel for the Defendant: Messrs Law Naivalu

Date of Hearing: 3 June 2005
Final Dates for Affidavits: 17 June & 24 June 2005
Dates for Submissions: 15 July, 5 August & 12 August 2005
Date of Judgment: 30 September 2005

JUDGMENT OF FINNIGAN J

The Plaintiff seeks by Originating Summons an order for possession of a house and land under Section 169 of the Land Transfer Act Cap. 131. Pursuant to Section 172 the Defendant is entitled to show cause why immediate vacant possession of the land should not be granted.

The Facts

Both parties have filed Affidavits and the Plaintiff has filed an Affidavit in Answer to the Defendant’s reply. The Affidavits are untested by oral cross-examination and each challenges the claims of the other.

It is common ground, that the Plaintiff owns the house which is at 161 Vomo Street, Lautoka and the Defendant lives in it. They are relatives. The Defendant has occupied the property for the past 12 years, apparently with the general agreement of the Plaintiff. The Plaintiff did give notice in January 2001 that he wanted the Defendant to vacate but nothing came of that. The Plaintiff gave notice again in October 2004 and again the Defendant did not vacate it so the Plaintiff filed this application.

There are allegations by the Plaintiff that the Defendant was to pay a monthly rental including the Housing Authority rent but none has been paid, at least to the Plaintiff. The Defendant has been paying the rates and mortgage payment. The Defendant claims (without details) to have spent about $15,000.00 on the property during the last 12 years and says the Plaintiff gave him an option to purchase. He says he disputed the price.

Decision

I have read the submissions of both parties. I agree with Counsel for the Plaintiff that the summary procedure of Sections 169 & 172 has been provided to enable a litigant to get a summary decision where the issues involved are straight forward and particularly where there are no complicated issues of fact. I accept the authority of Ram Narayan v Moti Ram Civil Appeal No. 16/83 FCA (Gould V. P.).

This is not a case for use of the summary procedure. The facts of the matter are in clear dispute. The Plaintiff has allowed matters to go on and cannot simply terminate them now at his whim. The competing claims of the parties have to be sorted out. There is no basis whatever for counsel’s claim that the Plaintiff is suffering some hardship. It may be the Defendant who suffers hardship if this application is granted without a full inquiry into the facts of the matter.

On balancing the untested affidavits I am inclined to think that the Plaintiff is estopped from denying that the Defendant has reasonable cause to be occupying the house and on balance the Defendant has shown cause why he refuses to give possession. Under Section 172 of Cap 131 I have an option whether to dismiss the summons with costs against the Plaintiff or else make any other orders I may think fit.

I think it best to dismiss the application. The parties need to consider the consequences of what each has done and if negotiations and settlement between them are not possible then dismissal of the summons does not prejudice the right of the Plaintiff to take any other proceedings to which he may be otherwise entitled (Section 172). A judgment of the Court of Appeal Gurdayal Singh v Shiu Raj Civil Appeal No 004/1982 may be in point.

I award costs to the Defendant which I fix at $500.

D.D. Finnigan
JUDGE

At Lautoka
30 September 2005