Maharaj v Begum [2008] FJHC 192; HBC564.2006 (5 August 2008)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Action No. HBC 564 of 2006

IN THE MATTER of an Application under Section 169 of Part XXIV of the Land Transfer Act, Cap. 131 for and Order for immediate vacant possession

BETWEEN:

KAMAL MAHARAJ (f/n Shiu Dutt Maharaj) as Executor and Trustee of Shiu Dutt Maharaj of Australia, Accountant (formerly of 22 Milverton Road, Raiwaqa, Suva)
Plaintiff

AND:

ZARINA BEGUM (f/n Nazir Mohammed) of 22 Milverton Road, Raiwaqa, Suva)
Defendant

Coram: Hickie, J

Dates of Hearing: 26 May 2008 and 5 August 2008
(Mentions: 12 June, 10 and 23 July 2008)

Appearances: Mr G. O’Driscoll for the Plaintiff
Ms for the Defendant

Date of Decision: 5 August 2008

DECISION

THE APPLICATION

[1] This is an application by KAMAL MAHARAJ pursuant to Section 169 of Part XXIV of the Land Transfer Act, Cap. 131 for an Order for immediate vacant possession of the property being one rood more or less residential site comprised in Certificate of Title No.9363 of Deposited Plan No.2274 situated in the District of Rewa on the island of Viti Levu, of which the Plaintiff is the registered proprietor as Executor and Trustee of the Estate of Shiu Dutt Maharaj.

[2] The Summons filed on 21 December 2006 on behalf of the Plaintiff sought that the Defendant show cause why an order for immediate vacant possession of the said property should not be made against her upon the grounds set forth in the Affidavit of KAMAL MAHARAJ sworn at Suva on 20 December 2006.

[3] The hearing of the Summons came before the Master on eight occasions (2 February, 5 March, 3 May, 12 June, 2 July, 6 August, 28 September and 17 October 2007) before it was transferred to Justice Coventry to fix a hearing date, who then mentioned it on 29 October and 16 November 2007, whereupon it was set down for hearing by him for 15 February 2008 but His Lordship subsequently then left the Bench on 24 January 2008.

[4] On 14 March 2008, I undertook a Call Over of all Justice Coventry’s outstanding matters and placed them before the Master on various dates for allocation of new hearing dates. The matter then came back before the Master on 1 April 2008 before it came before me again on 9 May 2008 when I set it down for hearing on 26 May 2008 and noted that the hearing would not be vacated unless there were exceptional circumstances.

[5] On the Thursday, 22 May 2008, the matter was relisted before me upon the request of Counsel for the Defendant due to a clash of hearing dates. After hearing Counsel from both parties, the hearing date was confirmed.

THE HEARING

[6] When the hearing commenced the following Monday, 26 May 2008, the crux of the dispute was the alleged invitation of the Defendant’s former mother-in-law, SATYA WAIT MAHARAJ (who has a life tenancy over the property) allowing the Defendant to continue to reside there. The Plaintiff had an Affidavit from the said SATYA WAIT MAHARAJ sworn at Suva on 29 December 2006 filed in relation to earlier probate proceedings wherein she stated at paragraph 4 therein:

“I am now returning home with my son Kamal Maharaj to australi [sic] and I authorize [sic] him to remove Zarina Begum and her children from our property as she is already divorced my son Navin Tiwari before his death on 24th November 2006.” (My emphasis)

[7] By contrast, Counsel for the Defendant submitted that her instructions were that the Defendant was residing in the said property (with her children) at the invitation of her former mother-in-law, SATYA WAIT MAHARAJ, who had allowed the Defendant with her children to re-enter the property two months before the Defendant’s former husband, NAVIN TIWARI, died.

[8] Due to the fact that the former mother-in-law, SATYA WAIT MAHARAJ, was now residing in Australia, Counsel for both parties agreed that it was vital that her wishes be ascertained as at the present time, that is, mid-2008. Therefore, by virtue of her life tenancy, if SATYA WAIT MAHARAJ agreed that the Defendant and her children could reside in the said property then that would be the end of the matter. Similarly, if SATYA WAIT MAHARAJ agreed that they must vacate forthwith, then the Plaintiff would be granted his request to an order for immediate vacant possession.

[9] Counsel for the Plaintiff agreed to formally file with the Court a copy of the Affidavit of the said SATYA WAIT MAHARAJ sworn at Suva on 29 December 2006 from the earlier probate proceedings.

[10] Similarly, Counsel for the Defendant (who was at the time making a trip to Australia) said that she would make her best endeavours to see the said SATYA WAIT MAHARAJ and have her complete an Affidavit. The matter was then adjourned part-heard to allow time for Counsel for each party time to obtain the relevant documentation in support of their respective cases.

[11] Since the matter was adjourned part-heard on 26 May 2008 (and despite three mention dates since, being 12 June, 10 and 23 July 2008), the only documentations filed has been on behalf of the Plaintiff being:

(a) Affidavit of SALA TAU’AGA, Law Clerk, with the Solicitors for the Plaintiff, sworn on 5 June 2008 annexing a copy of the said Affidavit of SATYA WAIT MAHARAJ sworn at Suva on 29 December 2006 filed in relation to the previous probate proceedings; and

(b) Affidavit of SATYA WAIT MAHARAJ sworn at Newtown (NSW, Australia) on 29 July 2008 before a Notary Public.

[12] Not only has no documentation been filed in support of the Defendant but there was no appearance on 10 July and again when the matter was called before me this morning. I understand from Court staff that Ms Veretawatini appeared mid-morning to ask what had happened with the matter and I asked that she be advised (as well as Mr O’Driscoll for the Plaintiff), that judgment would be given after 3.00pm today.

[13] I further note that when Mr O’Driscoll and Ms Veretawatini appeared before me on 23 July 2008, whilst he was ordered to obtain an Affidavit from SATYA WAIT MAHARAJ in Australia, it was also noted that Ms Veretawatini was to explain to the Defendant that the Court would be proceeding to judgment on 5 August 2008 unless other material was filed in response. As at 9.00 am today, nothing had been filed, there was no appearance by Ms Veretawatini and I indicated to Mr O’Driscoll that having read the two documents he had filed (referred to above) I was going to make the order for vacant possession requested. Mr O’Driscoll submitted (kindly in my view) that in the circumstances he was agreeable for a stay of the Order for 28 days so as to allow the Defendant to be notified and make arrangements for her and her children to vacate. I noted that I would be making formal orders but containing them at the end of a short judgment so that there would be no possibility of any misunderstanding as to what has taken place today. This I have now done, with the Registry asked to contact Counsel to advise that judgment would be given at 3.30pm today.

FINDINGS

[14] In relation to service for the purpose of the Section 169 proceedings, the Court finds as follows:

(a) In relation to the “Notice to Quit”, the Court finds that it was validly served upon the Defendant by way of a letter dated 11 December 2006 (as annexed to the Affidavit of KAMAL MAHARAJ sworn at Suva on 20 December 2006);

(b) In relation to the “Summons for Ejectment and Affidavit in Support”, the Court finds that these two documents were validly served upon the Defendant on 24 January 2007 (as per the Affidavit of NAREND PRASAD sworn at Suva on 26th January 2007).

[15] Further, the Court finds that the Defendant has not shown on Affidavit evidence “some right to possession which would preclude the granting of an order for possession under Section 169 procedure”: (See Ram Chand & Others v Ram Chandar & Others, (Unreported, ABU0021U of 2000, 28 February 2003, Reddy P, Kapi and Sheppard JJA) (Paclii: [2003] FJCA 10 http://www.paclii.org/fj/cases/FJCA/2003/10.html); see also Hari Narayan v Shiu Narayan (Unreported, Court of Appeal, 24 June 2008, Byrne, Shameem and Hickie JJA).

[16] Indeed, the Court finds that the Plaintiff has clearly shown a right to immediate vacant possession.

[17] In view of the above, the Court finds that the Defendant has failed to show cause pursuant to Section 172 of the Land Transfer Act as to some right to possession which would preclude the granting of an order for possession in favour of the Plaintiff as the Executor and Trustee of Shiu Dutt Maharaj.

ORDERS

[43] Accordingly, the Court makes the following Orders:

1. That the Plaintiff is entitled to immediate vacant possession of the property situated being one rood more or less residential site comprised in Certificate of Title No.9363 of Deposited Plan No.2274 situated in the District of Rewa on the island of Viti Levu, of which the Plaintiff is the registered proprietor as Executor and Trustee of the Estate of Shiu Dutt Maharaj.
   
2. That execution of this Order is delayed for twenty-eight (28) days from the date of this judgment so as to enable the Defendant to voluntarily remove herself, her children, and their possessions, from the said land.
   

I will now hear the parties as to costs.

Thomas V. Hickie
Judge

Solicitors:
O’Driscoll & Co, Suva, for the Plaintiff
Law Solutions, Suva, for the Defendant