NBF Asset Management Bank v Occupiers [2008] FJHC 278; HBC290.2007 (15 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 290 OF 2007

BETWEEN

NBF ASSET MANAGEMENT BANK
Plaintiff

AND

THE OCCUPIERS of Lot 3, Plan ND 5175, Part of Maqalevu, Nadi
Defendants

Appearances: Messrs. S. B. Patel & Company for the Plaintiff
Lemeki Draunikaumila, A Defendant in Person

Date of Hearing: 13 February 2008
Date of Judgment: 15 February 2008

JUDGMENT

[1] Before me is an originating summons filed by the plaintiff for an order that it do recover possession of the Crown Lease 6467 known as Lot 3 Plan ND 5175, Part of Maqalevu, formally CT 5877 (Farm 2830) in the Tikina of Nadi and Province of Ba having an area of 4 acres 0 roods 16 perches, (the property), on the ground that it is entitled to possession and that the persons in occupation are in occupation without licence or consent. Although not stated on the summons, learned counsel for the plaintiff submitted that the application was brought pursuant to Order 113 of the High Court Rules.

Plaintiffs evidence

[2] An affidavit in support by a Manager in the plaintiff bank deposed as follows:

(i) the registered proprietor of the property is Ilikini Dobui

(ii) by mortgage No. 329791 made between the plaintiff and Mr. Dobui (the mortgage), the

property was charged in favour of the plaintiff to secure advances made to Mr. Dobui

(iii) that a Notice of Demand under the mortgage dated 11 February 2004 was made for payment of $34, 446.99

(iv) the plaintiffs interest in the land arises by virtue of its status as mortgagee and because of default in repayment of advances by Mr. Dobui

(v) the plaintiff does not know the name of persons occupying the property who are in occupation without any licence or consent from the plaintiff

(vi) the plaintiff is proceeding to exercise its powers of sale under the mortgage, has accepted a tender for the property and will have to provide vacant possession

(vii) by notice to quit dated 15 June 2007, the occupiers of the property were given notice to deliver to the plaintiff possession of the property

(viii) the occupiers have failed to vacate the property.

Appearance by occupiers

[3] On the returnable date of the summons, 12 October 2007, Mr. Draunikaumila, Asesela Waqaniolo, Antonio Warara and Tavaita Draunikaumila appeared. I was informed that the application for eviction was being opposed. They sought a two month adjournment to instruct a lawyer. Mr. Patel submitted the matter was of urgency. I adjourned the application for a month to 16 November 2007 to give the defendants time to instruct a lawyer.

[4] On 16 November 2007, I was informed by Mr. Draunikaumila that he had tried to secure the services of a lawyer but costs were too expensive. I granted 28 days for the occupiers to file and serve an affidavit in reply and assigned 1 February 2008 to hear the originating summons. The Court could not sit on 1 February 2008 due to the continuing power outage to the premises in the wake of Cyclone Gene. The summons was heard on 13 February 2008.

Affidavit of Mr. Draunikaumila

[5] Mr. Draunikaumila filed an affidavit in person on 28 January 2008. Notwithstanding the apparent defects in the form and content of the affidavit, I have considered the evidence contained in the affidavit given that Mr. Draunikaumila who appears in person cannot afford the services of a lawyer and to ascertain whether he and other occupiers have a right to possession of the property.

[6] In summary, Mr. Draunikaumila says:

(i) he is one of Mr. Dobui’s sons and has lived on the property since birth. His father died in November 2005

(ii) the mortgage was "one of the worst dealings ever to be arranged by any commercial bank" and which required 100% of cane proceeds to be paid yearly to cover the loan repayment

(iii) the plaintiff failed to advertise the mortgagee sale

(iv) the plaintiffs acceptance of the tender was illegal and improper

(v) efforts were made to make arrangements for repayment in regard the demand notice of 11 February 2004 but the plaintiff demanded full payment

(vi) another attempt to settle his fathers outstanding debt in cash was made in 2006 but the plaintiff "opted for a tender of their own choice"

(vii) the plaintiff failed to pay due regard to the interest of his late father

(viii) the plaintiff had not acted bona fide, in good faith or with reasonable care

(ix) in view of the above, the summons be dismissed.

Mr. Draunikaumila’s standing

[7] Mr. Draunikaumila’s purported reliance on some form of authority, derived from him being a son of Mr. Dobui is misconceived. This is understandable given that he is not familiar with the legal processes in relation to Estates. It appears that Mr. Dobui’s estate is yet to be formally administered. In the course of the hearing, Mr. Draunikaumila informed me that neither he nor his siblings sought legal advice following the death of their father. He has a brother who is a police officer. Mr. Draunikaumila was at one time employed as a night auditor at the Skylodge Hotel. He speaks and understands English. I view with skepticism his claim that whilst he managed to secure a loan of $30, 000 to settle the mortgage debt, it did not occur to him to obtain legal advice in regard to his fathers estate and the banks Demand Notice. Whilst I have much sympathy for the plight he and his siblings now find themselves, I am obliged to apply the law. He has no standing in relation to the mortgage. He is neither the executor nor administrator of his late fathers estate. An administrator has no cause of action vested in him before obtaining letters of administration.[1] Mr. Draunikaumila is not sure whether his father left a will. He may well be a beneficiary of his fathers estate but that does not give him standing to challenge the mortgage or enforcement of it. He was not a party to the mortgage contract. I have also upheld the submissions of Mr. Patel that the claims put forward of the plaintiff acting unlawfully, in bad faith and unreasonably are made without any credible evidentiary foundation.

Clause 12 of the mortgage

[8] There is no serious dispute regarding the breach by the late Mr. Dobui of his repayment obligations under the mortgage. The bank called up it’s security. The bank proceeded with mortgagee sale by tender. Clause 12 of the mortgage provides:

"12. THAT the Bank upon default in payment of any money hereby secured or any part thereof or any interest may –

(c) bring an action of ejectment to recover the said land either before or after entering into the receipt of the rents and profits thereof or making any distress as aforesaid and either before or after any sale of such land affected under the power of sale given or implied in this mortgage in the same manner in which the bank might have made such entry or distress or brought such action if the principal sum were secured to the bank by a conveyance of the legal estate in the mortgaged land." (emphasis added)

[9] The plaintiffs action is validly constituted. The plaintiff is exercising it’s powers under clause 12. The occupiers of the property have not established that there is some issue or question that requires to be tried, or that for some other reason there ought to be a trial. These proceedings are summary in nature, akin to the Section 169 procedure under the Land Transfer Act. The plaintiffs action succeeds. Mr. Draunikaumila asked that I order the plaintiff to set aside a portion of land within the property for occupation by him and his family. I cannot accede to his application. However I will stay execution of my orders today for a period of 4 weeks to enable the occupiers to consider their options.

Order

i) Order granted that the plaintiff do recover possession of the Crown Lease 6467 known as Lot 3 Plan ND 5175, Part of Maqalevu, formally CT 5877 (Farm 2830) in the Tikina of Nadi and Province of Ba having an area of 4 acres 0 roods 16 perches.

ii) Order above stayed for 4 weeks from today.

iii) Each party to bear own costs.

Gwen Phillips
JUDGE

At Lautoka
15 February 2008

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^[1] Elia Lawakeli –v- The State [2004] FJHC 346; (24/3/04) per Justice Winter at p. 2 citing with approval Ingall –v- Marren (1944) 1 AllER97