Prasad v Nand [2011] FJHC 494; HBC35.2010 (1 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 35 OF 2010

BETWEEN:

RAJENDRA PRASAD and LILY PREMILA DEVI
PLAINTIFFS

AND:

NITYA NAND
DEFENDANT

Appearances: Mr. R.P. Singh for the Plaintiffs.
Defendant in person.
Date / Place of Judgment: Thursday 1st September, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

SETTING ASIDE – application made by the defendant to set aside an order for vacant possession made in his absence as he was not made aware of the court date by the court and that he has a cause to stay on the land – application for setting aside dismissed.
Legislation
Land Transfer Act, Cap 131.

The Application

1. The defendant has filed an application on the 14th day of April, 2010 to set aside an order made by the court on the 30th day of March, 2010. The order was made on the plaintiffs' application for summary judgment for an order for vacant possession under s.169 of the Land Transfer Act.
   
2. The order was made in the absence of the defendant when he failed to appear in court to show cause why he should not give an order for vacant possession.
   

The Grounds in Support

3. The defendant filed an affidavit in support through which he supports his application for setting aside. In his affidavit he stated as follows:-
   
   • (a) He was served with a summons to attend the court on the 16th day of March, 2010 but he could not attend. The court was closed due to Hurricane Thomas.
     
   • (b) He was under the impression that a notice would be served on him for another date. This did not happen.
     
   • (c) To his surprise he was served with an order for vacant possession.
     
   • (d) He has a good cause and would like the court to take cognizance of his defence.
     
   • (e) He has been occupying the aforesaid premises for the past 19 years since 1991. He has spent tremendous amount of money on the property amounting to more than $35,000.
     
   • (f) That the fact of this case is that he has been appointed by Ms. Lily Premila Devi to stay in her premises as a care taker in the year 1991 and at that point of time she was the sole proprietor of the said property and not Mr. Rajendra Prasad. Ms. Lily Premila Devi stays in Australia and not at Ki Street, Wailoku as stated in the summons and his conversation with her revealed that she has at no stage asked him to vacate her premises.
     
   • (g) He understands and verily believes that Mr. Rajendra Prasad's half share was given on 07/09/2000 by Ms. Lily Premila Devi upon matrimonial property settlement as they have been divorced.
     
   • (h) Mr. Rajendra Prasad and Lily Premila Devi have been separated since 1987 and have been divorced in the year 1989 and are not in talking terms.
     
   • (i) Mr. Rajendra Prasad has never stayed in Ki Street, Wailoku as sworn by him but he stays in Valelevu and Ms. Lily Premila Devi has all these years stayed in Australia, and not at Ki Street, Wailoku.
     
   • (j) That the affidavit sworn and filed by Rajendra Prasad is false and misleading the court on the following grounds:
     
     • (i) That he does not reside at Lot 1 Ki Street, Wailoku as sworn.
       
     • (ii) That he does not have any written authority from the purported second plaintiff named Ms. Lily Premila Devi to take this action.
       
     • (iii) That he falsely used the name of second plaintiff and stated that she stays at Ki Street, Wailoku whereas she has all along been residing in Australia.
       
   • (k) He is occupying the share of Ms. Lily Premila Devi and not Mr. Rajendra Prasad and Ms. Lily Premila Devi has asked him to look after her share of the property.
     
   • (l) He is a respectable person and has respect in the society. He was President of Wailoku Navyuak Ramayan Bhajan Mandali and also a member of Wailoku Police Committee. He feels very embarrassed with the actions of the plaintiff.
     
   • (m) He has documentary evidence to prove that he has spent in excess of $35,000.00 (Thirty Five Thousand Dollars) for the past 19 years while he stayed as a caretaker.
     
   • (n) That although this application is under section 169 of Land Transfer Act, there has not been a full transfer to Mr. Rajendra Prasad as the other half is still retained by the original owner Ms. Lily Premila Devi who has not personally made any such application.
     

The Grounds in Opposition

4. Mr. Rajendra Prasad also filed an affidavit and stated as follows:
   
   1. The defendant does not have a good cause to justify him staying on the land.
      
   2. When an undivided half share of the land was transferred in his name, he was on the land. The defendant stayed on the land for 10 years. He denies that the defendant spent $35,000.00 in renovating the property. At present time the house is in a dilapidated condition and the value of the house would amount to less than $1,000.00.
      
   100. That it was not Ms. Lily Premila Devi, but he, who gave the defendant permission to live on the land.
        
   4. That the whereabouts of Ms. Lily Premila Devi is not known and he denies that the defendant has spoken to her. There is no written document produced by the defendant.
      
   5. He separated with Ms. Lily Premila Devi since 1987 but was still in talking terms with her. He lived at Ki Street, Wailoku.
      
   6. Although the residential address of Ms. Lily Premila Devi has been inadvertently stated as Ki Street, Wailoku, it does not have any bearing on this case and in particular it does not justify the defendant to maintain possession of the property.
      
   7. Ms. Lily Premila Devi has not given her consent to the defendant to occupy the share of the land.
      
   8. The defendant has been suspended from membership of the said Mandali.
      
   9. Even though he is the proprietor of one undivided half share of the land, he is entitled to an order for eviction against the defendant.
      

The Law and the Determination

5. The defendant has shown little interest in this case. When the matter could not be initially called in court due to natural disaster, the defendant demonstrated a laid back attitude. Instead of enquiring from the court of the next court date, he sat and waited for the court to serve him with a notice to attend court.
   
6. It was the defendant's duty to check with the court of the next fixture as the application against him was of a serious nature. He did not do so until he was ordered to give vacant possession. In any event, I gave him an opportunity to present his case on merits as the matter was heard and dealt with in his absence, notwithstanding who should have informed or enquired about the new court date.
   
7. On the day of the hearing of the setting aside application, the defendant again failed to appear and I only could deal with the matter based on the affidavit evidence. The defendant is basically claiming that the other owner of the undivided share had permitted him to stay on the land as a care taker and that he has spent around $35,000 on the property. There is no evidence to this effect that the other co-owner had permitted the defendant to stay on the land and that he has spent any money on the property. A mere allegation of this nature does not constitute sufficient cause to stay on the land. This is a common ground that is raised in matters of this nature and I believe that in this case it is just concocted to justify staying on the land.
   
8. I do not find the defendant's statement via his affidavit acceptable that he spent money on the property. He was appointed as care taker, if he was, to look after the property. He had no mandate to spend money on the property in his capacity as such. There is no evidence of who permitted and acknowledged the defendants spending and what was the source of spending. These evidence must be furnished to the court for the court to consider and there is no such evidence before the court.
   
9. The plaintiff Mr. Rajendra Prasad states that he was the one who permitted the defendant to stay on the land. That permission was revoked when a notice to vacate was served on him on the 19th day of December, 2009. Thereafter the defendant had no mandate to stay on the land and the property.
   
10. The defendant is raising irrelevant issues like the address being improperly noted on the originating summons and that the plaintiffs do not occupy the property. These statements are not sufficient to justify him staying on the land.
    
11. There is no evidence before the court that the other owner Ms. Lily Premila Devi has not permitted this action to be brought against the defendant. If what the defendant says is correct, I would have expected nothing less than a sworn document to this effect. In any event, the other co-owner is statutorily bound to allow her name to be used to bring this action for vacant possession. S. 174 of the Land Transfer Act is relevant:-
    

"The proprietor of any land or of any estate or interest therein shall, on the application of any beneficiary or person interested therein, be bound to allow his name to be used by such beneficiary or person in any action, suit or proceeding which it may be necessary or proper to bring or institute in the name of such proprietor concerning such land, estate or interest or for the protection or benefit of the title vested in such proprietor, or of the interest of any such beneficiary or person, but nevertheless such proprietor shall in any case be entitled to be indemnified in like manner as if, being a trustee, he would before the passing of this Act have been entitled to be indemnified in a similar case of his name being used in any such action, suit or proceeding by his cestui que trust."

Underlining is mine

12. Mr. Rajendra Kumar is an owner of an undivided share in the property. He is one of the last registered proprietors of the property and as such is in a position to bring this action against the defendant. He is, due to his undivided share, precisely in the position of the owner of an entire and separate estate. There is no prohibition in the Land Transfer Act for him to bring an action for vacant possession.
    
13. There are no merits in the defence raised by the defendant and his application for setting aside must be dismissed forthwith.
    

Orders

14. The application to set aside the order for vacant possession is dismissed with an order that each party bears their own costs.
    

Anjala Wati
Judge

1.09.2011

To:

1. Mr. Raman Singh for the plaintiffs.
2. Mr. Nitya Nand, defendant in person.
3. File: HBC 35 of 2010.