iTaukei Land Trust Board v Prakash [2016] FJHC 396; HBC 77 of 2012 (11 May 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA, FIJI ISLANDS

CIVIL ACTION HBC NO.: 77 OF 2012

BETWEEN : ITAUKEI LAND TRUST BOARD a body corporate of

Victoria Parade, Suva incorporated pursuant to the Native Land Trust Act Cap 134, Laws of Fiji.

PLAINTIFF

A N D : RAM PRAKASH AND SUMINTRA JOSEPHINE both

of Vuda, Lautoka, Cultivator and Domestic Duties respectively.

DEFENDANTS

Appearances:

Mr I.B. Lutumailagi for the Plaintiff
Mr K. Tunidau for the Defendant

R U L I N G

1.0 Introduction

1.1 This is the Plaintiff’s application by way of Originating Summons filed on 7^th May, 2012 for the following Declaration and Orders.

Declarations

(a) That the “agreement for lease” dated 18^th June, 2004 and issued to the Defendants for an area of 1000 square meters of the land known as “Vunakeilo Subdivision Lot 1”, in the Tikina of Vuda, Province of Ba, is “subject to survey”,
(b) That the Defendants are unlawfully occupying the three meter wide easement access that is immediately adjacent to the northern boundary of the land in question,

(c) That the Defendants give up vacant possession of the three meter wide easement access that is immediately adjacent to the northern boundary of the land in question,

(d) That the said agreement obliges the Defendants by clauses (A) (2) (b), (g) and (j) to obtain the prior written consent of the Plaintiff to sub-lease or sub-let the land in question,

(e) That the Defendants are in breach of the said agreement by failing to obtain the prior written consent of the Plaintiff to sub-lease or sub-let the residential structures erected on the land in question,

Orders

(f) The Defendants pay the Plaintiff the sum of $3,018.75 (Three Thousand and Eighteen Dollars and Seventy Five Cents) being penalty fees for the above mentioned breach of lease conditions,

(g) The Defendants give up vacant possession of the land in question for breach of the conditions of the said agreement particularly in failing to obtain the Plaintiff’s consent to sub-lease or sub-let part of the said land;

(h) Such further or other orders as this Honourable Court deems just and expedient;
1.2 The Originating Summons is supported by an affidavit sworn by Jekope Vunisa an Estate Assistant of the Plaintiff’s Board sworn on 30^th April, 2012.

1.3 The 1^st name Defendant has filed an Affidavit in Response to Affidavit in Support on 1^st January, 2012.

1.4 The Plaintiff has filed two Affidavits in Reply to the Affidavit of the Defendant sworn by Plaintiff’s Technical Officer Lui Mackay and aforesaid Jekope Vunisa.

1.5 The Court granted leave for both parties to file their written submission as the Learned Counsel for both parties agreed that the matter to be concluded on written submissions. However, only the Plaintiff has filed their written submissions pursuant to leave being granted to file the same.

2.0 Determination

• 2.1 Before I delve into the merits of this application I would consider the submission made by the Plaintiff’s Counsel in regards to an irregularity in the summons and affidavit initially filed in this matter. He is now seeking leave to amend the summons by substituting the word “Southern” for the word “Northern” in paragraph (b) and (c) of the Summons under Order 2 Rule 1 of the High Court Rules stating that it is an irregularity that should not nullify the proceedings.
  
• 2.2 In perusing the Originating Summons and the supporting Affidavit filed in this matter I find that in both documents the easement which the Defendant is alleged to be unlawfully occupying is described as “immediately adjacent to the said land on its northern boundary.”
  
• 2.3 The Defendants in their Affidavit in Response denied that there is an “easement access” adjacent to the land on its northern boundary.
  
• 2.4 The Plaintiff in reply admitted that this was a drafting error and the word “Southern” should be substituted instead of the word “Northern” in the said paragraphs of the Originating Summons and the relevant paragraphs of the Affidavit.
  
• 2.5 Declarations b and c prayed for by the Plaintiff in their Originating Summons are declarations sought in regard to an easement access that is immediately adjacent to the northern boundary of the land in question. The application to amend the Summons is made by the Learned Counsel for the Plaintiff in his written submissions filed at the hearing. He contends that this is an irregularity that should not nullify the proceedings and the Court to treat the same as a failure to comply with the requirements of the rules in respect of the content and leave to be granted to amend the Summons invoking the inherent jurisdiction under Order 2 Rule 1 of the High Court Rules.
  
• 2.6 In perusing the Originating Summons filed I find that the Plaintiff has not complied with the provisions of Order 7 Rule 3 (1) of the High Court Rules. Order 7 Rule 3(1) provides:

Contents of Summons (O.7, r.3)

“3.(1) Every originating summons must include a statement of the questions on which the Plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims that relief or remedy.”

2.7 The Plaintiff admits that the “easement access” that is subject to this action is located at the southern boundary of the Defendants land and not on the northern boundary as wrongly stated in the Originating Summons filed. This error in my view can be considered as a failure by the Plaintiff to provide sufficient or accurate particular to identify the cause of action in this matter. However, I find that this an error which could be cured under Order 2 Rule 1 of the High Court Rules as it can be considered as a failure to comply with the requirements of Order 7 Rule 3 (1) of the said Rules.

2.8 In the light of the above finding I hold that the error appearing in the Originating Summons could be corrected under the provisions of Order 2 Rule 1 of the High Court Rules by amending it. I also find that this matter cannot be adjudicated without rectifying the said error appearing in the Originating Summons filed.

3.0 Conclusion

3.1 For the above reasons I make the following Orders:

(i) The Plaintiff is ordered to file the Amended Originating Summons and Affidavit in Support, the copies to be served on the Defendant.

(ii) The Defendant is at liberty to seek a date to file a fresh Affidavit in response once the amended Originating Summons and Affidavit is filed.

Lal S. Abeygunaratne

Judge

At Lautoka
11^th May, 2016