Kumar v Kumar [2010] FJHC 23; HBC157.2008L (1 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 157 of 2008L

BETWEEN:

BAVINDRA KUMAR
(f/n Vijen Nath) of Velovelo, Lautoka, Mechanic
Plaintiff

AND:

AGESHWAR KUMAR
(f/n Vijen Nath) and SITAL KUMAR (f/n Vijendra Sharma)
both of Velovelo, Lautoka, Unemployed and Domestic Duties respectively
Defendants

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. Kamal Kumar for the Plaintiff
Mr. Iqbal Khan for the Defendants

Solicitors: Young & Associates for the Plaintiff
Messrs Iqbal Khan & Associates for the Defendants

Date of Hearing: 19 January 2010
Date of Judgment: 1 February 2010

INTRODUCTION

[1] This is an application for vacant possession. The Originating Summons stated that the application was being made under s 169 of the Land Transfer Act but in the course of argument Counsel informed me that is was in fact under Order 113 of the High Court Rules.

[2] It is one of those all too often and unfortunate disputes between family members which this Court is asked to resolve. The Plaintiff and the First Defendant are brothers. The sugar cane farm in question initially belonged to their mother and two uncles.

THE FACTS

[3] The Plaintiff is the registered lessee pursuant to an Agreement for Lease with the Native Land Trust Board (NLTB) of native land for residential purposes. He says the Defendants are occupying his property without his consent. On 9 June 2008, through his solicitors, he served notice on the Defendants to vacate within 30 days. The notice also said that any permission or licence given by him, his agent or any predecessor in title for them to occupy the premises was thereby revoked.

[4] The First Defendant and Second Defendant are husband and wife. The First Defendant says that when he received the notice to vacate he enquired with his mother why her share of the sugar cane farm had been transferred. She said the Plaintiff and others tricked her into signing what she thought was a Gang Agreement. When she found out later that it was a surrender of her share of the land, she went and saw a solicitor who wrote to the NLTB withdrawing the surrender that she had been tricked into signing. She said when the Plaintiff found out he threatened her with imprisonment and forced her to withdraw her letter which she did. She said she had no intention of surrendering the lease because it was her late husband’s wish that she live on the land during her lifetime and after her death, the property was to be shared between her two sons equally. A copy of her late husband’s last Will was annexed to her affidavit and confirms what she said in her affidavit. The First Defendant also says that he has spent considerable sums of money in renovating the house and also confirms what his mother had said.

[5] The Plaintiff in response says that an agricultural lease of the land was issued to his mother and two uncles for a period of 30 years from 1 January 2001. One of the uncles is now deceased. He said he discovered that monies were being withdrawn from his account without his knowledge. He lodged a complaint with the police who charged his brother, the First Defendant. The Defendants then left to leave somewhere else in January 2008. On 9 June 2008, they came back on to the property to remove their personal belongings when they were served with the notice to vacate. From then on the Defendants entered onto the premises by breaking the door lock and have remained there ever since. As to how the residential lease was issued in his name, the Plaintiff said that since no one was cultivating his mother’s share of the cane farm, it was decided by her mother, the surviving uncle and the trustee of the deceased uncle to approach the landowners to issue a residential lease. His mother was not able to pay the premium and fees her mother agreed that he would pay them. He obtained the landowners’ approval and paid the outstanding rentals, premium and fees to the NLTB. On 1 April 2008 his mother and the other lessees signed a partial surrender of the agricultural lease and the residential lease over part of the land was issued in his name. He says his mother is still a joint lessee of the remainder of the cane farm. He knew of his mother’s solicitor’s letter to the NLTB withdrawing her surrender of her share. He said when he explained to her mother that it was only a partial surrender she accepted it and agreed to the issue of the residential lease. He too had spent money in extending the house.

THE APPLICATION

[6] Order 113 of the High Court Rules provides:

(1) Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.

[7] The Plaintiff did not explain why his brother and his wife came to occupy the premises before their falling out in 2008. It also seems to me that their mother, who was predecessor in title of the sugar cane farm part of which was subdivided for the residential lease, has not withdrawn her consent for her son and his wife to occupy the premises. Further, there is conflicting affidavit evidence which I am unable to resolve unless oral evidence is given and I am able to observe the witnesses.

[8] The procedure under O 113 is a summary process and it is only in the clearest of cases should it be used: Sabha v Merrum [2009] FJHC 115; HBC350.2008 (9 June 2009). This is not one of them. The application for vacant possession therefore fails. The Plaintiff, if he so wishes should bring his case by Writ of Summons.

[9] I do not think I should aggravate an already hostile family situation so I make no order as to costs.

ORDERS

[10] The Orders are:

1. The application for vacant possession is dismissed.

2. There is no order as to costs.

Sosefo Inoke
Judge