Lami Town Council v Hussain [2011] FJHC 324; HBC355.2009 (31 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 355 OF 2009

BETWEEN:

LAMI TOWN COUNCIL
PLAINTIFF

AND:

SAYED RAHAT HUSSAIN, SAYED MEHMOOB HUSSAIN, MAZIMAN, ATRUN NISHA and TAHERUN NISHA
DEFENDANTS

Appearances: Ms. Laurel Vaurasi for the Plaintiff.
No Appearance for the Defendants.
Date / Place of Judgment: Tuesday, 31st May, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

LAND TRANSFER ACT, CAP. 131 –application under s. 104 of the Land Transfer Act for defendants property against which a judgment was obtained in the Magistrates Court and registered against the property be sold to satisfy the judgment, statutory debt is due and owing and the defendants failure to pay shall result in the sale of the very property against which the judgment has been obtained.
_____________________________________
Legislation
High Court Rules 1988.
Land Transfer Act, Cap. 131.
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Case Background

1. This matter was heard in absence of the defendants who failed to appear after being served by way of an advertisement in a local newspaper.
   
2. The application was brought by an originating summons which sought the following orders:-
   
   1. An order for the sale of CT No. 8130 being Lot 4 on DP 1496, the land being situated in the district of Suva;
      
   2. A call for tender is made in the Fiji Sun by the plaintiff or its solicitors on its behalf;
      
   100. Tenders to be closed 4 weeks from the date of advertisement;
        
   4. The plaintiff or its solicitors be at liberty to accept the highest tender received; and
      
   5. The monies received from the sale be applied as follows:-
      
      • (i) Firstly to satisfy judgment obtained by the plaintiff in the Magistrate's Court of Fiji at Suva in Civil Action No. 80 of 2009;
        
      • (ii) Secondly to satisfy the expenses incurred by the plaintiff in this action and cost of this action; and
        
      • (iii) Any balance to be paid to the defendant.
        

The Grounds in Support

3. The plaintiff relies on the following to support its application:-
   
   • The defendants are the registered proprietors of the Certificate of Title No. 8130. The land is known as Qoya (part of) and containing five acres, one rood and thirty seven perches and situated in the district of Suva in the island of Viti Levu and being Lot 4 on Deposited Plan No. 1496.
     
   • The land has always been a vacant piece of land. Initially the demand notices for town rates were sent to the 3rd named defendant at 415 Kings Road, Samabula on behalf of the defendants. Thereafter the 3rd defendant left the address. There were repeated efforts by the bailiffs to locate the defendants' and serve them but this was unsuccessful. Thereafter the plaintiff commenced legal action and served the defendants with the Writ of Summons and Statement of Claim via substituted service by advertising the claim in the Fiji Times on the 07th day of May, 2009.
     
   • The plaintiff obtained judgment for a sum of $13, 565. 28 against the defendants in civil action no. 80 of 2009 in the Magistrate's Court. The judgment was for arrears of rates and costs.
     
   • The judgment has been registered against the subject Certificate of Title. The Notice of judgment registered against the land was advertised in the Fiji Sun on the 22nd day of October, 2009.
     
   • The defendants owe the plaintiff the amount of the judgment and no interest has been shown for payment despite the notice of registration of judgment against the land.
     
   • The defendants have also failed to contact the plaintiff and the continuous failure to pay the debt shows that there is no real intention to pay the debt.
     

The Determination

4. The defendants are the registered proprietors of the subject property in respect of which rates was due and owing. Non payment resulted in a civil suit and consequently a judgment against the defendants. The judgment was registered against the property and the notice of such registration brought to the attention of the defendants. Despite that the judgments remains unsatisfied.
   
5. The plaintiff is entitled to recover the judgment and recovery in this instance is only possible by a sale of the subject property as the defendants are neither coming forward to enquire about the debt not are they to be found for the debt to be enforced against them.
   
6. I am satisfied that the plaintiff has procedurally acted properly and in a bona fide manner to obtain the debt that is justly due and so they are entitled to recover the money from the sale of the subject land.
   

Costs

7. The plaintiff is also entitled to cost of this matter. The originating summons was filed in court initially followed by an application for substituted service. Later a notice of appointment of hearing was filed. The applications were also advertised as ordinary mode of service was impossible due to the defendants' addresses not being known to the plaintiff. The plaintiff's counsel also appeared in court to obtain the orders. Time and money has been spent in bringing this matter and therefore the plaintiff is entitled to costs of this action which I shall summarily assess for which I have powers under the High Court Rules, 1988.
   

Final Orders

8. For the above reasons I make the following orders:-
   
   1. An order for the sale of CT No. 8130 being Lot 4 on DP 1496, the land being situated in the district of Suva after a call for tender is made in the Fiji Sun by the plaintiff or its solicitors on its behalf.
      
   2. An Order that the tenders be closed 4 weeks from the date of advertisement.
      
   100. An order that the plaintiff or its solicitors be at liberty to accept the highest tender received.
        

4. An order that the monies received from the sale be applied as follows:-
   
   • (i) Firstly to satisfy judgment obtained by the plaintiff in the Magistrate's Court of Fiji at Suva in Civil Action No. 80 of 2009;
     
   • (ii) Secondly to satisfy the expenses incurred by the plaintiff in this action and cost of this action; and
     
   • (iii) Any balance to be paid to the defendants or the Chief Registrar who shall hold the funds on behalf of the defendants in an interest bearing account.
     

9. The defendants must pay the plaintiff the costs of this action in the sum of $1500.
   
10. Ordered accordingly.

____________________

Anjala Wati
Judge
31st May, 2011
At Suva.
To:

1. Ms L. Vaurasi for the plaintiff.
2. Sayed Rahat Hussain, Sayed Mehboob Hussain, Maziman, Atrun Nisha and Taherun Nisha, the defendants.
1. File: HBC 355 of 2009.