Kumari v Pillay [2015] FJHC 737; HBC192.2014 (7 October 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 192 of 2014

BETWEEN:

RENU KUMARI of Cuvu, Sigatoka
PLAINTIFF

AND:

ASHNEEL PILLAY of Cuvu, Sigatoka
DEFENDANT

Mr. Ravneet Charan for the Plaintiff
Mr. Iniasi Vodo Tuberi for the Defendant

Date of Hearing: - 11th May 2015
Date of Ruling : - 07th October 2015

RULING

(A) INTRODUCTION
(1) The matter before me stems from the Defendant's Summons dated 03rd February 2015, made pursuant to Order 15, Rule 4(1) of the High Court Rules 1988, seeking the grant of the following orders;

1. That TOTA RAM be named as the Second Defendant
   
2. That time to file the Affidavit in Reply be extended
   
3. Costs to be cost in the cause
   

(2) The application for joinder is supported by an affidavit sworn by the Defendant on 04th February, 2015.

(3) The application for joinder is strongly resisted by the Plaintiff.

(4) The Plaintiff filed an Affidavit in Opposition opposing the application for joinder followed by an Affidavit in Reply thereto.

(5) The Plaintiff and the Defendant were heard on the Summons. They made oral submissions to court.

(B) BACKGROUND

(1) What are the circumstances that give rise to the present application?

(2) The Plaintiff filed an Originating Summons on 25th November 2014, pursuant to Order 113 of the High Court Rules, for an order for vacant possession against the Defendant.

(3) The Defendant is summoned to appear before the Court to show cause why he should not give up vacant possession of the Plaintiff's property comprised in Ministry of Lands and Mineral Resources Tenancy at will dated 18th February, 2014.

(4) The Land in question is Crown Land, within the meaning of Crown Lands Act.

(5) The status of the substantive matter is for the Defendant to file an affidavit in opposition, opposing the application for vacant possession.

(C) THE DEFENDANT'S APPLICATION FOR JOINDER OF PARTIES

(1) The Summons for Joinder of parties is supported by the affidavit of the Defendant which is substantially as follows:

Para (1) THAT I am the above named Defendant in this matter and make this affidavit with the authority as the Caretaker.

(2) THAT I am only the Caretaker in the land in question and I make this application so that TOTA RAM can properly answer the Affidavit in Support of the Plaintiff. Attached herewith are documents to support my application for TOTA RAM to be joined as the Second Defendant;

(i) Annexure "TR1" letter from Acting Director of Lands dated 4th April, 2014. Paragraph (3) shows that only the land has been transferred, NOT the house and chattels.

(ii) Annexure "TR2" Will of the late Balram aka Sadhu. Paragraph (3) of the said Will shows that the Testator devised his 1 acre of Crown Land to TOTA RAM, his son.

(iii) Annexure "TR3" a copy of the Probate was printed to TOTA RAM.

(3) THAT TOTA RAM lives in Australia and he has arrived in Fiji on Sunday, 1st day of February, 2015.

(4) THAT when TOTA RAM comes to Fiji he resides at the house which is the subject of this litigation.

(5) THAT according to the court record the Originating Summon was filed on the 26th day of November, 2014 and the same was placed outside the door of his house on the 19th January, 2015 and the First Call was listed on the 25th January, 2015.

(6) THAT there is not enough time for TOTA RAM to reply to the Affidavit of the Plaintiff.

(2) The Plaintiff filed an affidavit in opposition, which is substantially as follows (so far as relevant);

Para (4) THAT I am the Plaintiff in the within action.

(5) THAT paragraph 2 of the Pillay Affidavit is denied. I further say that:

(i) I am the beneficiary of a tenancy over all that land known as Lot 1 NDSW 1079 with an area of 1328 square meters in the Tikina of Sigatoka in the province of Nadroga/Navosa in Tenancy at Will dated 18th February 2014("the Land").

(ii) Mr. Tota Ram has no interest in the Land and therefore there is no need to substitute and/ or include anyone into the present proceedings.

(6) THAT in further response to paragraph 2 of the Pillay Affidavit is say that:

(i) Annexure marked "TR1" states facts that are factually incorrect as the same is a legal issue and I reserve my right to address the same at the hearing of this matter.

(iii) Annexure marked "TR2" purports to transfer land that is not described and is ambiguous in nature. In any event if the said Will annexed purports to devise a tenancy at will that is the subject of the present proceedings then the same is a also a legal issue and I reserve my right to address the same at the hearing of this matter.

(7) THAT I have no knowledge of paragraph 3 of the Pillay Affidavit and I make no comments in response to the same.

(8) THAT I have no knowledge of paragraph 4 of the Pillay Affidavit and I make no comments in response to the same.

(9) THAT the Originating Summons and Affidavit in Support of action No. 192 of 2014 as filed and served on the Defendant name herein and the facts deposed in paragraph 5 of the Pillay Affidavit is incorrect.

(10) THAT I have no knowledge of paragraph 6 of the Pillay Affidavit and I make no comments in response to the same.

(3) The Defendant filed an affidavit in rebuttal deposing inter alia (so far as relevant);

Para (4) THAT I have no comments in regards to the contents of paragraphs (1), (2) and (3) of the affidavit of Renu Kumari (herewith referred to the affidavit)

(5) THAT I note the no comments in paragraph (4) of the said affidavit.

(6) THAT I note also the bold denial in paragraph (5) of the said affidavit. I am advised that the letter from the Director Lands clearly stated that the house and the chattels have not been the subject of the Tenancy at Will (hereinafter referred to as the TAW.") I am further advised that the denial about the Will and Probate is quite unusual because the piece of land and the house were specifically mentioned and the Probate shows that the High Court has decided on the legal validity of the issues being raised by the Plaintiff. The Will and the Probate show that TOTA RAM owns the land and the Plaintiff's name never appeared on the two legal documents.

(7) THAT in reply to paragraph (6) of the said affidavit I am advised to say that Annexure "TR1" of my affidavit is a clear electronic communication from the Acting Director of Lands to Mr. TOTA RAM and I am further advised that the contents of the letter are not ambiguous. Further there is nothing factually incorrect about the message.

In reply to paragraph (ii) of the said affidavit I am advised to say that the land was in the description given by the Lands Department in File 4/11/1211 and 69/10 (Appointment) 4/05/14 or 15/5/15. The land is identifiable because there is a house on it which belongs to TOTA RAM and not Renu Kumari.

(8) THAT in reply to paragraph (7) of the said affidavit I am advised and verily believe that the Plaintiff is actually lying in the affidavit as TOTA RAM is her older brother and he used to send money to her from Australia. It appears to me and I am advised that the Plaintiff is lying on oath.

(9) THAT in reply to paragraph (8) of the said affidavit I say that Plaintiff knows that TOTA RAM stays at the dwelling house when he visits Fiji because that is his home which was given to him by a WILL from his father.

(10) THAT in reply to paragraph (9) of the said affidavit I am advised that the contents of paragraph (5) of the Affidavit in Support are true.

(11) THAT no comment of the Plaintiff in paragraph (10) of the said affidavit is noted.

(12) THAT in reply to paragraph (11) of the said affidavit I say that TOTA RAM is the legal owner of the house in question and he should be made a party to this action.

(13) THAT further I have been advised and verily believe that this action should be dismissed because the Plaintiff did not use the Section 169 Land Transfer Act procedure or Order 3 of the High Court Rules 1988 procedure. She cannot follow the procedures above, I have been advised, because she does not have the title to the house in question.

(D) ANALYSIS

(1) What is the Defendant's reason seeking the Court's leave to join "Tota Ram" as the second Defendant to the proceedings?

The Defendant says that;

(A) He is only the caretaker of the premises in question.

(B) "Tota Ram" is the legal owner of the premises in question.

(C) "Tota Ram" resides in Australia.

(D) "Tota Ram" stays at the premises in question, when he visits Fiji.

(2) In adverso, the Plaintiff submits, that "Tota Ram" has no interest in land and therefore there is no need to join "Tota Ram" as the second Defendant to the proceedings.

(3) After an in-depth analysis of the totality of the affidavit evidence in this case, I now summaries my understanding of the salient facts as follows;

• ❖ The Plaintiff and Tota Ram are siblings.
  
• ❖ The partie's deceased father (late Balram) was a state lessee over the land in question.
  
• ❖ The state lease has expired.
  
• ❖ According to the Plaintiff, a Tenancy at will was given to her at the expiration of her father's tenancy over the land.
  
• ❖ Neither the Defendant nor the Plaintiff is in actual physical occupation of the land in question at the present time.
  
• ❖ According to the Tenancy at Will, the Plaintiff is only the tenant over the land but not the house or Chattels which could be on the land (Annexure TR1).
  
• ❖ The Will of the partie's deceased father (Annexure TR2) shows that the testator devised his 01 acre of crown land to "Tota Ram".
  
• ❖ The Court has granted a probate to "Tota Ram" (Annexure TR3)
  
• ❖ "Tota Ram" has granted consent to the Defendant to stay on the premises in question.
  

(4) The Defendant issued Summons pursuant to Order 15, Rule 4 (1) of the High Court Rules 1988, seeking the Court's leave to join "Tota Ram" as the second Defendant to the proceedings.

The proposition advanced by the Defendant requires some examination of Order 15, Rule 4 of the High Court Rules.

I should quote Order 15, Rule 4, which provides;

Joinder of parties (O.15, r.4)

4.-(1) Subject to rule 5 (1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where-

(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and

(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

(2) Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.

This paragraph shall not apply to a probate action.

If, as I apprehend, Order 15, Rule 4 generally permits the joinder of Defendants subject to Order 15, Rule 5 (1) which provides (so far as relevant);

Court may order separate trials, etc. (O.15, r.5)

5.-(1) If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder or causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trails or make such other order as may be expedient.

In Payne v British Time Recorder Co. (1921) 2 K.B. 1 Scrutton L.J. said of the U.K. equivalent of Order 15 r.4 at p.16:

"... you must look at the language of the rules and construe them liberally, and that where there are common questions of law or fact involved in different causes of actions, you should include all parties in one action, subject to the discretion of the Court, if such inclusion is embarrassing, to strike out one or more of the parties.

It is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder... subject to its discretion as to how the action should be tried."

Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the court will allow the joinder of Plaintiffs or the Defendants, subject to its discretion as to how the action should be tried.

I ask myself, Is there in this, any "common question (s) of law or fact" in the Plaintiff's claim against the Defendant and against "Tota Ram", which is of sufficient importance as to render it desirable that both claims should be dealt with together by way of summary proceedings for possession of land?

I must stress here that the relief sought by the Plaintiff, namely, vacant possession of the land in question, is indeed common to the Defendant and "Tota Ram' but other than that, there is no "common question of law or fact" in the Plaintiff's claim.

In the case of the Defendant, his occupation of the premises is undoubtedly based upon a license to occupy coupled with possession.

On the other hand, in the case of "Tota Ram', his occupation of the premises is undoubtedly based upon an equitable interest to live on the property.

Thus, as a matter of law the defendant and "Tota Ram" cannot be joined since there is no common question of law or fact.

The joinder may embarrass or delay the hearing of the action. Thus, the defendant's application in so far as it purports to invoke Order 15, Rule 4 is dismissed as misconceived.

(5) Leave all that aside, the Defendant's application for joinder relates to Order 15, Rule 11, of the High Court Rules. This rule refers specifically to actions for possession of land.

For the sake of completeness, Order 15, rule 11 is reproduced below.

Actions for possession of land O.15, r.11)

11.-(1) Without prejudice to rule 6, the Court may at any stage of the proceedings in an action for possession of land order any person not a party to the action who is in possession of the land (whether in actual possession or by a tenant) to be added as a defendant.

(2) An application by any person for an order under this rule may be made ex parte, supported by an affidavit showing that he is in possession of the land in question and if by a tenant, naming him. The affidavit shall specify the applicant's address for service and Order 12, rule 2(2), (3) and (4), shall apply as if the affidavit were an acknowledgement of service.

(3) A person added as a defendant by an order under this rule shall serve on the plaintiff a copy of the order giving the added defendant's address for service specified in accordance with paragraph (2).

On a strict reading of Order 15, rule 11, suggest to my mind, that Order 15, rule 11 cannot be invoked by a person who is not in actual physical possession or occupation of the land such as absentee landlord or a lessor.

It is undeniable that "Tota Ram' is not in actual physical possession or occupation of the land.

Thus, as a matter of law, "Tota Ram" cannot be joined since he is not in actual physical possession of the land.

I am fortified in my view by the judgment of Lindley L.J. in Minet v Johnson (1890) 63 L.T. 507.

"The action was brought against Johnson to recover possession of some land. It so happens that Hartley was in possession, but was not named as a defendant on the writ. On principle a person in actual possession ought to be made a defendant; but where this has not been done Order XII r.25, seems to me to point out what is the proper procedure. The moment the person in possession has done as he is there directed he is treated as a defendant in the action".

(Emphasis Added)

Applying those principles to the instant case, I see no ground in law to grant leave to the Defendant to join "Tota Ram" as the second Defendant to the proceedings.

Accordingly, there is no alternate but to dismiss the Summons.

I cannot see any other just way to finish the matter than to follow the law.

(E) FINAL ORDERS

(1) The application for Joinder is dismissed.

(2) The Defendant is ordered to pay costs of $500.00 to the Plaintiff within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
07th October 2015