Khan v Ravouvou [2010] FJHC 492; Civil Case 64 of 2009 (9 November 2010)

IN THE RESIDENT MAGISTRATE AT NADI
WESTERN DIVISION

CIVIL CASE NO. 64 OF 2009

BETWEEN:

ABBAS KHAN
PLAINTIFF

AND:

ATUNAISA RAVOUVOU
DEFENDANT

BEFORE THE RESIDENT MAGISTRATE: Mohammed Ajmeer, Resident Magistrate

For The Plaintiff: Messrs Qoro Legal, Barristers & Solicitors, Lautoka
For The Defendant: Messrs Esesimarm & Company, Barristers & Solicitors, Nadi

Date of Hearing: 19 October 2010
Date of Ruling: 09 November 2010

RULING

[On whether to transfer to High Court or Not]

1. The plaintiff commenced this action on 30th April, 2009 for trespass, vacant possession, and injunction, claiming the Defendant, his relatives, servants and agents had no colour of right whatsoever to be on the subject land.

2. The Plaintiff claims that:

(i) A Declaration that no relationship of Landlord and Tenant existed at anytime between the Plaintiff and Defendant in respect of that piece of land known as Nasou and containing 3 acres 3 perches and situate in the District of Nadi in the Island of Viti levu and being Lot 6 on DP 4098 under CT 33816.

(ii) A Declaration that the Defendant and/or his servants and/or agents and or his family and relatives and whosoever are unlawfully and without any color of rights resides on that piece of land known as Nasou and containing 3 acres 3 perches and situate in the District of Nadi in the Island of Viti Levu and being Lot 6 on DP 4098 under CT 33816.

(iii) A Declaration that the Defendant and/or his servants and/or agents and or his family and relatives whosoever are trespassers on that piece of land known as Nasou and containing 3 acres and 3 perches and situate in the District of Nadi in the Island of Viti Levu and being lot 6 on DP 4098 under CT 33816.

(iv) An Order that the Defendant and/or his servants and/or agents and/or his family members and/or relatives and/or whosoever vacate that piece of land known as Nasou and containing 3 acres 3 perches and situate in the District of Nadi in the Island of Viti Levu and being Lot 6 on DP 4098 under CT 33816 immediately.

(v) An Order restraining the Defendant and/or his servants and/or agents and/or his family members and/or relatives and/or whosoever from either physically or verbally interfering, threatening and intimidating the Plaintiff and/or his servants and/or agents from entering, conducting and carrying out all necessary work on Lots 1 CT 38811, Lot 2 CT 38812, Lot 3 CT 38813, Lot 4 CT 38814, Lot 5 CT 38815, Lot 6 38816, Lot 7 CT 38817, Lot 8 CT 38818, Lot 9 CT 38819, Lot 10 CT 38820 and Lot 11 CT 38821 all Deposit Plan No. 4098 for purposes of sale.

(vi) General Damages

(vii) Costs to be paid by the Defendant on indemnity basis

(viii) Any other orders this Honourable Court deem justs.

3. On 7th August, 2009 the Defendant, as administrator of the Estate of Semi Ravouvou of Saunaka, deceased, set up in the said action by way of counterclaim order for the transfer to the said estate of 15 acres of land, allegedly sold by the plaintiff to the said Semi Ravouvou and part of approximately 32 acres of land of the alleged value exceeding one million dollars.
   

4. The Defendant counterclaims:-

1) An injunction to restrain the Plaintiff by himself, his agents or servants, or howsoever otherwise from carrying out any transaction, dealing or disposition whatsoever whether by way of sale, assignment, transfer or otherwise whosoever over 15 acres part of the land comprised in Certificate of Tile 10930 subsequently subdivided under Deposited Plan 4098.

2) An order that the Plaintiff forthwith convey and transfer 15 acres from the subdivision of original Certificate of Tile 10930 to the Estate of Semi Ravouvou.

3) General damages

4) Costs on indemnity basis

5) Such other relief as this Honorable Court deems just.

5. The Defendant in his affidavit filed on 28th April, 2010 states that the said counterclaim, and claim for trespass and for vacant possession involve matters beyond the jurisdiction of this court and complex questions best determined by the High Court.
   
6. The plaintiff filed reply to defence and defence to counter-claim. In the reply the plaintiff averred that the Defendant's counter claim is statute barred and prayed the Defendant's counter-claims be dismissed with costs.
   
7. In the defence to counter-claim the Plaintiff admits paragraph 9 of the counter-claim that the Defendant is administrator and a beneficiary of the Semi Ravouvou late of Saunaka, Nadi.
   
8. In this case pleadings have closed, and there is pending for determination the Defendant's motion for discharge of injunctive orders obtained by the Plaintiff.
   
9. The Magistrate's Court Act [Amendment Promulgation 2007] Promulgation N0. 34 of 2007 had increased the Magistrate's Court jurisdiction to hear matters up to the claim of $50,000.00.
   
10. Section 16 of the Magistrate's Court Act divests civil jurisdiction in the Magistrate's Court to hear and determination.
    
11. An action may be transferred to High Court if the Magistrate is of opinion such course is justified [section 32, Magistrate's Court Act].
    
12. The Plaintiff obtained writ of summons for the sum of $9,500.00. But in the statement of claim there is no basis as to why he claims the said amount from the Defendant.
    
13. In the reply to defence and defence to counter-claim the plaintiff admits that the Defendant is administrator and a beneficiary of the Semi Ravouvou late of Saunaka, Nadi and that the probate was granted to the Defendant on or about 31st March 2009.
    
14. On the pleadings it appears to me that the Defendant is not a trespasser hence section 16 (1) (a) (ii) of the Magistrate's Court Act is irrelevant.
    
15. It is noteworthy that the Defendant claims title to about 50% of original land area. The counter-claim raises complex issues of estate, land title and contract laws.
    
16. I reject the Plaintiff's reasons for objecting to the transfer.
    
17. Because of this court's lack of jurisdiction to hear this case it is only proper that the case be transferred to the High Court on the facts and nature of this case.
    
18. To conclude, in the light of what I have stated hereinbefore, the Defendant succeeds in his application to transfer the case to the High Court of Lautoka.
    

Order

19. It is therefore ordered that this action be transferred to the High Court at Lautoka forthwith. This action is adjourned to 19th November, 2010 for mention before the High Court at Lautoka.
    

M H Mohammed Ajmeer
Resident Magistrate

Dated this 09th day of November 2010
At Nadi.