Parvati v Kumar [2011] FJHC 95; HBC273.2008 (31 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 273 of 2008

BETWEEN:

PARVATI father's name Changaiya of Navakai, Nadi, Domestic Duties
Plaintiff

AND:

SHALEND KUMAR father's name Mariappa of Navakai, Nadi.
Defendant

Before: Master Anare Tuilevuka
Counsel: Messrs Janend Sharma for the Plaintiff
: No Appearance for the Defendant
Date of Ruling: 31st January 2011

RULING

[1]. The following – I gather from the Statement of Claim filed by the plaintiff on 16th February 2008.

[2]. The plaintiff is the mother of the defendant. In 1991, she purchased a piece of Crown Land. She describes the land as Lot 6 on SO 4426 having an area of 898 square meters (LD 4/10/2222) for $7,500. She then constructed three houses on the land. The defendant occupies one of the three houses which cost the plaintiff $10,000 to build. In 2003, the Director of Lands issued a Crown Lease over the said land (CL 15410).

[3]. Sometime in 2003, the defendant got the plaintiff to have the lease issued and registered in both their names as joint lessees. In consideration, the defendant is alleged to have undertaken to the plaintiff that he will reimburse the plaintiff 50% of the purchase price being $3,750-00 (three thousand seven hundred and fifty dollars) plus all other costs and expenses including the sum of $10,000 (ten thousand dollars) being the cost of construction of the plaintiff's house.

[4]. As joint lessee, the defendant is also required to pay to the Department of Lands 50% of the ground rental and all other expenses comprising the premium ($600), rental up to 2008 ($746) and stamp duty ($61). I gather that the plaintiff has been meeting these obligations herself.

[5]. Meanwhile, the plaintiff has had a change of heart about the defendant's presence on the land. Vide her solicitors, she issued a Demand Notice dated 22nd November 2006 to the defendant to settle the above debt - but to no avail.

[6]. The plaintiff pleads that in the circumstances, the consideration for the issue of the lease to the defendant as joint lessee has wholly failed and the defendant is not entitled to be registered as joint lessee. This is where her legal case theory is flawed. (see below)

[7]. Meanwhile, seeing that the defendant has not bothered to file an Acknowledgement of Service or Statement of Defence – the plaintiff filed a Notice of Motion pursuant to Order 19 Rule 7(2) of the High Court Rules 1988 seeking the following Orders:

1. That the Defendant does, within 7 days of an Order being served on him, execute all necessary documents and do all things necessary to effect a transfer of all of the Defendants title and rights in Crown Lease Number 15140 to the Plaintiff.
   
2. That in default of the Defendant complying with the above Order, the Deputy Registrar of the High Court – Lautoka do execute all necessary documents and do all things necessary to effect a transfer of all of the Defendants title and rights in Crown Lease Number 15140 to the Plaintiff.
   
3. That an order that the Defendant to give immediate vacant possession of Crown Lease Number 15140 to the Plaintiff.
   
4. That the sum of $2,500.00 as prayed for in paragraph 13 of the Statement of Claim.
   
5. That there be judgment against the Defendant and damages be assessed in favour of the Plaintiff and;
   
6. That the Defendant pay Costs.
   

[8]. Order 19 Rule 7(2) states as follows:

Default of defence: other claims (O.19, r.7)

7.-(1) Where the plaintiff makes against a defendant or defendantsa claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant, then, if one of the defendants makes default as mentioned in that paragraph, the plaintiff may-

(a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or

(b) set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment, against the other defendants.

[9]. I cannot grant Order in Terms of prayer 1 as the defendant is protected by section 40 of the Land Transfer Act (Cap 132) which espouses the principles of indefeasibility of title. While the plaintiff may have a right to sue the defendant in personam for his alleged breach of agreement, the alleged breach of agreement, even if established, will not create in the plaintiff a right in rem so as to remove the defendant's name from the lease title as joint lessee.

[10]. I think that the proper course for the plaintiff is to simply have judgment entered against the defendant for the debt alleged and to give the defendant time to settle it.

[11]. The plaintiff could then apply for Charging Orders under Order 50 of the High Court Rules 1988. The way the plaintiff has pleaded her case and the Orders she seeks and the approach she has taken, to me, appear to undermine the principles of indefeasibility. I am prepared only to enter judgment against the defendant, and which I do now, in the sum of $21,157.00 made up as follows:

$10,000-00	For construction of plaintiff's house as pleaded
$ 3,750-00	50% of purchase price
$ 600-00	Premium
$ 746-00	Rental upto 2008
$ 61-00	Stamp duty

Anare Tuilevuka
Master

At Lautoka
31st January 2011