Bhagat v Fiji Sugar Corporation [2014] FJHC 6; HBC235.2012 (23 January 2014)

IN THE HIIGH COURT OF FIJI
AT LAUTOKA
WESTERN DIVISION

HBC 235 of 2012.

BETWEEN:

RAM BHAGAT of Rarawai, Ba as the Administrator
of the ESTATE OF GYAN DHARI previously of Rarawai, Ba, Fiji engaged in Domestic Duties.
PLAINTIFF

AND:

FIJI SUGAR CORPORATION
a duly incorporated Company having its registered office at Western House, Lautoka, Fiji.
DEFENDANT

RULING

INTRODUCTION

[1]. The plaintiff is the administrator of the estate of Gyan Dhari. The estate owns a state lease which is legally described as LD 4/4/22173. FSC owns land which adjoins the plaintiff’s land. According to the plaintiff, his lease will expire in 2016 by virtue of section 13 of the Agricultural Landlord & Tennant Act (Cap 270) which gives a right to single 20-year extension for expiring agricultural leases. However, the defendant says that the said lease actually expired in 1997 and that the plaintiff has never invoked that right of extension.

[2]. For years, the plaintiff has had problems with people dumping rubbish on his land and also planting crops on his land. This has led to drainage problems on his land. The plaintiff alleges that the dumping of rubbish and the planting of crops is being done by FSC workers who reside on the adjoining land. He seeks an injunction to stop the dumping of rubbish and any interference with his possession and to stop FSC from leasing out or licensing out its land to 3rd parties.

[3]. The plaintiff also seeks summary judgement for the alleged loss of profit of $5,000 per annum for 9 years plus damages for trespass and interest.

[4]. FSC admits that some of its workers actually reside on its land. Apart from these FSC workers, the other people also reside on the land who have no authority whatsoever to do so.

[5]. In its affidavit in support of the application, the plaintiff annexes a Terms of Settlement dated sometime in 1998 (poor copy exhibited) between one Amrit Prakash and the Fiji Sugar Corporation Limited. The Terms of Settlement was drawn up to settle a Ba Magistrates Court matter between Prakash as plaintiff and FSC as defendant (Civil Action No. 268 of 1997). The Terms of Settlement states inter alia that:

The defendant is to send out a memo to the tenants on its land telling them not to dispose of their waste product on the plaintiff’s land, not to build or erect anything on the plaintiff’s land and generally not to interfere with the quiet possession of the plaintiff.

[6]. The Terms of Settlement does not say which land is involved let alone whether it is the same land in question in this case. I am not inclined to treat the said document as evidence strong enough to estop FSC from denying that its employees are indeed dumping rubbish and planting crops on the plaintiff’s land.

DISCUSSION

[7]. Order 14 Rule 1(1) states as follows:

1.-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgement against that defendant.

[8]. The procedure is available to a plaintiff who desires a quick judgment on his or her claim where there is no defence to a claim, or, if a defence is raised, it either fails to set up a bona fide defence or discloses no triable issues and will merely have the effect of delaying a judgement in favour of the plaintiff. The Court’s task is to determine whether there ought to be a trial. In Carpenters Fiji Ltd –v- Joes Farm Produce Ltd Civil Appeal Number ABU 0019/2006, the Court of Appeal at pages 9 and 10 of the judgment stated the summary judgement principles as follows:-

"Here it is timely to state some of the well established principles relating to the entry of summary judgment:

(a) The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.

(b) The defendant may show cause against a plaintiffs claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.

(c) It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiffs claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it.

(d) Set off, which is a monetary cross claim for a debt due from plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set of claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v. Green (1958) 2 QB 9 at page 29 per Sellers LJ.

(e) Likewise where a defendant sets up a bona fide counterclaim arising out of the same subject matter of the action, and connect with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should before unconditional leave to defend, even if the defendant admits whole or part of the claim; Morgan and Son Ltd v. S. Martin Johnson Co (1949) 1 KB 107(CA).

[9]. The plaintiff must prove each claim clearly and to satisfy the Court that the defendant has no defence which has any realistic prospect of success. Once a claim is established, the evidential and persuasive burden shifts to the defendant (see Thomas J in Hibiscus Shopping Town Pty Ltd -v- Woolworths Ltd [1993] FLR 106 at 109) who must adduce affidavit evidence dealing specifically with the plaintiffs claim and affidavit and also state clearly and precisely what the defence is and what facts he relies on to resist the entry of summary judgment: Magan Lal Brothers Ltd. –v- L. B. Masters & Company Civil Appeal No: 31/84.

[10]. If the defendant has not filed an affidavit but a defence, the Court must then direct its mind on the issues raised in the defence to see whether it has merits and is not just a sham defence to delay judgment or avoid the necessity of showing cause by Affidavit (see the Fiji Court of Appeal in Magan Lal Brothers Ltd –v- L.B. Masters (supra); see also Halsbury's Laws of England (4th Edition) volume 37 para 413 – 415, notes 4).

[11]. After considering all, I am not inclined to grant the Orders sought for the following reasons:

• (i) FSC denies that its employees were responsible for the dumping of rubbish and for planting on the plaintiff's land. This is a triable issue.
  
• (ii) as stated, the Terms of Settlement is not strong enough evidence to estop FSC from denying its liability to the plaintiff.
  
• (iii) it is not clear to me whether or not the said Terms of Settlement was sanctioned by the Ba Magistrates Court or whether it was just entered into between the parties outside Court. In any event, there are some possible limitation issues which may limit the period over which the plaintiff may validly claim. I
  

[12]. I am also not inclined to grant an injunction as sought as to grant one will presuppose that FSC's workers are indeed dumping rubbish and trespassing onto the plaintiff's land.

[13]. The application is dismissed. Costs in the Cause. The case is adjourned to 06 February 2014 for mention at 10.30 a.m.

..........................................
Anare Tuilevuka
JUDGE
23 January 2014