National Bank of Fiji v Salabogi [2012] FJHC 16; HBC174.2010 (20 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 174 of 2010

BETWEEN:

NATIONAL BANK OF FIJI LIMITED
Trading as COLONIAL NATIONAL BANK
a limited liability company having its registered office At Suva in the Republic of Fiji Islands.
Plaintiff

AND:

KINIVILIAME SALABOGI of Nakasi, Army Officer.
Defendant

Appearances: For Plaintiff; Mr. K. Kumar instructed by Young and Associates.
For Defendant; In person- (ID- Drivers Licence no. 605291, DOB-29/8/62)

JUDGMENT

1. The Plaintiff has instituted this action by Originating Summons under Order 88 of the High Court Rules (1998) seeking;
   
   1. That the Defendant deliver to the Plaintiff vacant possession of ALL THAT piece or parcel of land comprised in Methodist Church Lease No. 388298 being Dabuilevu [Part of] Lot 24 on DP No 6823 in the Province of Vitilevu and in the Tikina of Rewa TOGETHER WITH all improvements thereon, as charged by the Mortgagor to the Plaintiff by Mortgage No. 588440 registered on 6 June 2006 to secure the money therein mentioned.
      
   2. That the Defendant, his servants, agents or employees be restrained from interfering with the improvements on the said property in any way so as to deplete its value.
      
2. In the Plaintiffs affidavit by Jonathan Stevens in support of its Originating Summons, were annexed, as JS1 the photocopy of a certified true copy of the lease no. 388298 under which the Defendant becomes the lessee of the subject property said to have been Mortgaged to the Plaintiff, as JS2 the photocopy of a "certified true copy" of the alleged Mortgage no. 588440, as JS3 a photocopy of the Default Notice dated 25/9/2009, as JS4 a photocopy of the Notice to Vacate dated 5th August 2010. Subsequently the Plaintiff submitted to the record the "original" (Mortgagees copy) of the Mortgage no.588440, as required.
   
3. The Defendant filed in response his affidavit with annexure KS1, KS2, KS3 being statements of account of Mr. K. Tadrau, Mrs. S. Tadrau, and Mr. S. Waikelokelo respectively showing deductions from their respective accounts towards payment of loan installments said to be on behalf of the Defendant and as KS4 a letter from Mr. K. Tadrau and Mrs. S. Tadrau to the Plaintiff subsequently requesting the refund of the monies so deducted.
   
4. In the said affidavit the Defendant admits the Mortgage (JS2) in favour of the Plaintiff. The Defendant at paragraph 11 of the said affidavit states that he has not been served with the "notice dated 10th August 2010" till the 29th of September 2010 "after being informed through telephone by the defendants brother in law Kaiva Tadrau". However there is no affidavit of Mr. Kaiva Tadrau confirming the same. The Defendant acknowledges that he was aware of the notice and does not set out any prejudice caused to him by the notice or the form of its service. No written submissions were filed by the Defendant urging any prejudice or consequences in law.
   
5. The Defendant in his affidavit only proposes that an alternative agreement was agreed upon but does not propose as to how such an agreement would deprive the Plaintiff its rights as Mortgagee to recover possession, as according to the Defendants own affidavit by annexure KS4 those who had agreed to pay the loan installments have repudiated the "alternative agreement" and sought their money (deducted) back from the Plaintiff.
   
6. The Defendant does not dispute the loan, the balance due or the fact that he is in default. The Defendant did not file written submissions urging any matters of law against the Plaintiffs application either, though ample opportunity was afforded to the Defendant to do so. Though notice of adjournments (NOAM) were sent by text messages to the mobile phone number left with the registry in this record by the Defendant himself, he did not respond indicating that he has conceded the application of the Plaintiff.
   
7. Order 88 Rule 1(d) reads thus;
   

"This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or by any other person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following relief's, namely –

(a) ..................

(b) ................

(c) ...............

(d) delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property."

8. As such, in view of case law such as WESTERN BANK LTD v SCHINDLER (1977)1 Ch, FOUR MAIDS LTD v DUDLEY MARSHALL (PROPERTIES) LTD (1957) Ch 317 (at 320), NATIONAL BANK OF FIJI v ABDUL KUDDUS HUSSEIN Suva HC civil Action no.0331 of 1994, NBF ASSET MANAGEMENT BANK v KOLONIO BULIVAKARUA & Anor Suva HC civil action no.97 of 1999, FIJI DEVELOPMENT BANK v GRACE TRADING Co LTD Suva HC action no.466 0f 1995, submitted by the Plaintiff, and Fiji Development Bank v. Endeavour Youth Investment Cooperative Society Ltd (2000) FJHC 63; HBC0337J.99S(5 May 2000), Wati v Pillay ] FJHC 102; Civil Action Nion No 310.2008 (7 April 2009), and FIJI DEVELOPMENT BANK v. RATU TEVITA RAIVALITA KOMAISAVAI CIVIL APPEAL NO. ABUOO18 OF 2010 [High Court Action No; HBC 19 of 2010L], where the Defendant admits default, court has to permit the mortgagee (Plaintiff) to take possession of the property so as to further secure its only security, and recover the monies lent. Section 75 of the Property Law Act (Cap 130), too supports the Plaintiffs right to recover possession as Mortgagee.
   
9. In the premises the Plaintiff is entitled to judgment in the relief sought to obtain possession of the subject property. However there is no evidence to support the second relief sought to restrain the Defendant.
   
10. Cost is summarily assessed at $500/- in favour of the Plaintiff.

Orders on judgment;

1. the Defendant is hereby ordered to deliver to the Plaintiff vacant possession of ALL THAT piece or parcel of land comprised in Methodist Church Lease No. 388298 being Dabuilevu [Part of] Lot 24 on DP No 6823 in the Province of Vitilevu and in the Tikina of Rewa TOGETHER WITH all improvements thereon, as charged by the Mortgagor to the Plaintiff by Mortgage No. 588440 registered on 6 June 2006 to secure the money therein mentioned, within 30 days of this judgment.
   
2. the Defendant to pay the Plaintiff $500/- as cost within 30 days of this judgment.
   

.............................................
Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
20th January 2012.