Prasad v Naidu [2006] FJHC 111; Civil Action 0069.2005 (23 February 2006)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 0069 OF 2005

BETWEEN

DAVENDRA PRASAD
s/o Jani Mangal
1^st Plaintiff

IRIMAIA BUKADAKAI
2^nd Plaintiff

AND

SANMOGAM NAIDU
s/o Tangvellu
1^st Defendant

RAM LINGAM
s/o Sanmogam Naidu
2^nd Defendant

PENI MAISIRI
3^rd Defendant

COMMISSIONER OF POLICE
4^th Defendant

ATTORNEY GENERAL OF FIJI
5^th Defendant

Counsel: Mr. N. Vere for the 1st & 2nd Plaintiffs
Mr. A Sen for the 1st & 2nd Defendants
Mr. Rabuku for the 3rd, 4th and 5th Defendants

Date of Hearing: 22nd February, 2006
Date of Ruling: 23rd February, 2006

RULING ON MOTION

[1] This is a dispute over a relatively small piece of land with a house on it.

[2] The second plaintiff is in occupation. He says it was bought from the first plaintiff. It was all lawful. He lives there with his wife and five children.

[3] On 22nd November 2005 the plaintiffs commenced an action for various remedies, including damages and specific performance. An ex-parte injunction was obtained before Mr. Justice Jitoko on 25th November 2005 for quiet enjoyment of the property and precluding the first and second defendants from evicting them.

[4] On the 20th of January 2006 affidavits in response were filed and a notice of motion asking for various orders including that the occupation of the house and land be returned to the second defendant. This could not be held before Jitoko J. as he was away.

[5] The second defendant and his wife in their affidavits say they have lived in this house on that land for eighteen years and were forcibly removed. There are various criminal proceedings in train.

[6] There is clearly a dispute as to the ownership and right of occupation of this land. There are strong competing arguments. I do not make any finding as to who is right. The question is who should occupy this house and land pending the hearing of this case.

[7] I do note there was no undertaking for damages offered or made in the hearing before Jitoko J. No return date of the ex-parte order was made. Even given the difficulties in Labasa the plaintiffs should have sought this. Further, from the face of the papers before me, I can see no reason why the original motion should not have been inter-partes.

[8] On the one side the second defendant says he and his family were forcibly evicted. On the other the second plaintiff says he asked for occupation and the second defendant granted it, but said he would burn the house down before he left. It was then the second plaintiff moved in.

[9] This morning an affidavit was placed before the court exhibiting a letter from the first to the second defendant telling the latter to vacate the premises. The second defendant had not had a time to consider this nor reply to it.

[10] This is an interim injunction and I must look to the balance of convenience. I must also look to the fact as to whether, on balance, there is evidence of unlawful eviction, no matter who is right concerning the central issue.

[11] I find it difficult to accept that given the circumstances the second defendant made a threat to burn the premises and then voluntarily walked out. If the second defendant considered he was properly in occupation, I do not believe he would have walked out.

[12] It is surprising also if the second plaintiff thought he obtained lawful occupation that he should bring these proceedings, or at least that part which restrains the first and second defendants

[13] There are three alternatives

1. Leave the status quo as it currently is.

2. Make an order that the second plaintiff leaves the premises and that the second defendant may occupy them again.

3. That neither party occupy the premises until the conclusion of these proceedings.

[14] I do not find the third alternative is right. I do find the second defendant should occupy the premises. It appears he and his family were forcibly ejected having lived there for many years. There is a real dispute concerning the land.

[15] It might be the second defendant ultimately or has already accepted that he should leave. This is disputed. It was the forcible removal of him and his family that supports the making of this order.

[15] The criminal proceedings should continue with due expedition. This Ruling must not be taken as any indication of what decisions the Magistrates Court should make.

(R.J. Coventry)
JUDGE