Pillay v Bulivou [2017] FJHC 258; HBC223.2016 (3 April 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 223 of 2016

IN THE MATTER of an application under Section 169 of Part XXIV of Land Transfer Act, Cap 131 for an Order for immediate vacant possession.

BETWEEN: DEBORAH ANNE PILLAY of 9/51 Tidewater Way, Ascot, Western Australia.

PLAINTIFF

AND: MEREONI TAMAKI BULIVOU of Taunovo, Pacific Harbour, Deuba, Domestic Duties.

1^ST DEFENDANT

AND: JOSUA VOSAKI of Taunovo, Pacific Harbour, Deuba.

2^ND DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Ms. Ulamila Fa - for the Plaintiff

Mr. Lanian - for the 1^st Defendant

Non Appearance - of the 2^nd Defendant

DATE OF RULING: 03^rd April, 2017

RULING
(Inter-Parte Notice of Motion seeking Injunctive Relief and Restraining Orders pursuant to Order 8 (2) (1) of the High Court Rules, 1988)

INTRODUCTION

1. This is the Plaintiff’s Interlocutory Inter-Parte Notice of Motion seeking the following orders-
   • (i) The 1^st and 2^nd Defendants by themselves and/or their agents or servants be restrained from interfering with authorised personnel of the Plaintiff attending to their duties at the main house at Lot 2 on DP 4881 being CT 24116 until the final determination of Civil Action No. 223 of 2016 being the Section 169 application currently before this Court;
   • (ii) The 1^st and 2^nd Defendants by themselves and/or workers of the Plaintiff at the premises at Lot 5 on DP 2585, CT 11836 until the final determination of Civil Action No. 223 of 2016, the Section 169 Application currently before this Court.
2. The Navua Police to assist in this matter.
3. In the alternative, an early hearing date for Civil Action No. 223 of 2016.
4. This application is made in support of the grounds set forth in the Affidavit in Support deposed by Sala Kunatuba.

THE LAW

5. The Plaintiff has made his application pursuant to Order 8 (2) (1) of the High Court Rules, 1988 which stipulates as follows-

Notice of motion (O.8, r.2)

2.-(1) Except where an application by motion may properly be made ex parte, no motion shall be made without previous notice to the parties affected thereby, but the Court, if satisfied that the delay caused by proceedings in the ordinary way would or might entail irreparable or serious mischief may make an order ex parte on such terms as to costs or otherwise, and subject to such undertaking, if any, as it thinks just; and any party affected by such order may apply to the Court to set it aside.

ANALYSIS AND DETERMINATION

6. It was agreed between both Counsels that the Interlocutory Application was of urgency and should take precedence of hearing over the impending Substantive Section 169 application.
7. The Interlocutory Application was argued and heard on 28^th March, 2017 with both parties furnishing their written submissions to Court in the matter.
8. Before any determination could be made in terms of the Injunctive relief and the restraining Orders sought on the Plaintiff’s Inter-Parte Motion, it would be prudent for this Court to First determine if the Plaintiff, has any ‘Locus Standi’ and or ‘Jurisdiction’ to file and commence proceedings against the Defendants.
9. When the Plaintiff’s Counsel was asked to explain whether the Plaintiff had the ‘Locus Standi’ and ‘Jurisdiction’ to file and commence proceedings, she answered in the affirmative supporting the issue as follows-
   • (a) In 1995, Plaintiff’s husband, Naveen Chandra Pillay purchased two (2) Lots of land, Certificate of Title No. 24115, being Lot 1 on DP 4881 and Certificate of Title No. 24116 being Lot 2 on DP 4881. (Reference made to Plaintiff’s affidavit at paragraph 6).
   • (b) In 1989, Plaintiff’s late husband with two others, purchased Certificate of Title No. 11836 being Lot 5 on DP 2585. (Reference made to paragraph 7 of Plaintiff’s affidavit).
   • (c) On 17^th February, 2011 the Plaintiff’s husband, Naveen Chandra Pillay, passed away and the Plaintiff was appointed as the Executrix and Trustee in terms of his WILL.
   • (d) The Supreme Court of Western, Australia, granted a “Probate Grant” to the Plaintiff on 21^st March, 2012. (Annexure DAP 5 at paragraph 9 refers in the Plaintiff’s affidavit).
   • (e) Re-Seal grant application is impending issuance with the Principle Probate Registry in Suva since the caveat in place is obstructing and re-seal grant be issued.
10. In response, the Defence Counsel submitted that in light of no Re-Seal Grant issued to the Plaintiff, the Plaintiff did not have the Locus Standi and jurisdiction in this case.
11. Upon the perusal of the Affidavit evidence, Annexures and, both oral and written submission, the subject properties under contention in the current proceedings before this Court are comprised and described in Certificate of Title No. 24115, Lot 2 on DP 4881 AND Certificate of Title 11836, Lot 5 on DP 2585.
12. Certificate of Title Nos. 24115 and 24116 currently remains under the proprietorship of Naveen Chandra Pillay (The Deceased husband of the Plaintiff).
13. The Plaintiff [Deborah Anne Pillay] was granted with a “Probate Grant” in the Deceased Husband’s [Naveen Chandra Pillay] Estate in Western Australia. As far as this Court is concerned, this Grant will allow the Plaintiff to administer and transfer the properties and assets existing in the Australian Jurisdiction only in terms of the Deceased’s WILL. This Probate Grant does not give the Locus Standi and the Jurisdiction to the Plaintiff to exercise within the Fijian Jurisdiction until the Plaintiff is able to file a Re-Seal application and obtain a Re-Seal Grant under her name accordingly.
14. In the absence of Plaintiff having obtained a Re-Seal Grant in the Fijian Court, she will not be able to exercise her administration rights over the Deceased Husband’s properties and assets within the Fiji Jurisdiction, including the properties which are the subject matter of the current proceedings before this Court.
15. Therefore, for the aforesaid rational, the Plaintiff does not have any ‘Locus Standi’ nor “Jurisdiction” in the present matter before this Court. The Plaintiff did not have any ‘Locus Standi” nor “Jurisdiction” to even file and commence this proceedings.
16. In Conclusion, I have no other alternative but to make the following final Orders-

FINAL ORDERS

1. The Plaintiff’s Inter-Parte Notice of Motion seeking Injunctive Relief and Restraining orders is Dismissed.
2. The Plaintiff is ordered to pay costs to both Defendants summarily assessed at $750 and the same to be paid within 14 days.

100. This Court will now proceed to hear and determine the Section 169 application as earlier scheduled.

Dated at SUVA this 03^rd day of APRIL, 2017

...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva

cc: Law Solutions, Suva

M. A. Khan Esq., Suva

Plaintiff’s Case

17. The Plaintiff’s Affidavit filed in this case deposed as follows:
    
    • (i) That he is the registered proprietor of the property comprised in Agreement to Lease – Native Lease No. 4/14/11715, Nasoqela No. 29 (part of) Lot 5, Namata, Tailevu, being subject to this litigation (Annexed hereto and marked annexure “A” is copy of the Agreement to Lease.
    • (ii) That on or about 11^th February, 2013 the First Defendant namely Arveen Chand and he entered into Sale and Purchase Agreement whereby the said Arveen Chand agreed to purchase the property as described in paragraph one herein (hereinafter referred as the said property) for the sum of $20,000.00. (Annexed hereto and marked annexure “B” is copy of the Agreement.
    • (iii) That the 1^st Defendant agreed to settle the property transfer within 90 days the date he signed the said agreement. He further agreed with the 1^st Defendant that in the event settlement could be effected within 90 days then he will pay $200.00 per month as rental until such time settlement is effected. Reference is made to clause 10.1 in the said agreement.
    • (iv) That after the execution of the said agreement the 1^st Defendant requested if he could move into the dwelling house on the said property since transfer will be done within 2½ months for which he agreed as the 1^st Defendant assured him that his finance was all arranged and there was nothing to worry about.
    • (v) That after the execution f the said agreement the 1^st Defendant requested if he could move into the dwelling house on the said property since transfer will be done within 2½ months for which he agreed as the 1^st Defendant assured him that his finance was all arranged and there was nothing to worry about.
    • (vi) That after expiry of 2½ months the 1^st Defendant failed to honour the said agreement and he then asked him to pay rent as per clause 10.1 in the said agreement and will wait until he is ready to effect transfer. The 1^st Defendant again gave him assurance that transfer will be effected within few days.
    • (vii) That the 1^st Defendant continued to reside in the said dwelling house and did not pay any rent. I he then gave Power of Attorney to his son Ratnesh Sharma to deal with the 1^st Defendant and either get the transfer effected or vacate him. He then travelled to Australia due to health reasons.
    • (viii) That the 1^st Defendant failed to pay any rental after expiry of 90 days and when asked by his son to vacate the premises he refused to do vacate and instead became very abusive towards his son.
    • (ix) That his son Ratnesh Sharma informed him that 1^st Defendant has refused to vacate and since he had to migrate to New Zealand he need to look for someone else o help him evict the 1^st Defendant. He then sought help from his grand children in Fiji who informed him that the 1^st Defendant and his father (2^nd Defendant herein) were residing on the said property and refused to vacate.
    • (x) That due to his health reasons he could not travel to Fiji and the 1^st and 2^nd Defendants continued to reside and enjoy his property without paying any rental whereas he had to pay lease every year.
    • (xi) That since March 2013 he was unable to travel to Fiji due to ill health and only in 2015 when he was able to be mobile travelled to Fiji with his daughters to try to sort out the property matter. He is 80 years of age and need to resolve issue without delay as his health is not very good.
    • (xii) That he came to Fiji in June 2015 and sought legal help from Diven Prasad Lawyers who advised him the option of eviction proceedings in High Court or complaint to Police that the Defendants are illegal occupiers and ought to be charged for trespass. His said lawyers then issued a notice to the Defendants and also sought assistance from Nausori Police. (Annexed hereto and marked annexure “C” is copy of the said letters).
    • (xiii) That he also went to Itaukei Land Trust Board (after his said lawyers asked him to do) and complained about the Defendants and they also gave letter to his said lawyers that he had the right to remove the Defendants. (Annexed hereto and marked annexure “D” is copy of the said letter).
    • (xiv) That he personally visited the Defendants sometime between 10 to 11^th June, 2015 and requested them to vacate his land as he is old and do not need to go through this stress but they both told him that do whatever but they will not vacate. He does not want any trouble and decided to take court proceedings.
    • (xv) That he then instructed his lawyers in July 2015 to proceed with legal action and he advised that Notice to vacate was served to Defendants on 6^th August 2015. (Annexed hereto and marked annexure “E” is copy of the said Notice).
    • (xvi) That the Defendants have refused to abide by the notice continues to live rent free and have no means to purchase the said property. The 1^st Defendant fraudulently executed the Sale and Purchase Agreement knowing that he did not have monies to effect transfer and it was his intention to occupy the said property after signing the agreement and to defraud me. The 1^st Defendant knew that I was not well and would be travelling to Australia hence it was his ploy to enter into the said agreement.
    • (xvii) That the Defendants consistent failure to abide by the notices and vacate the premises in a timely amicable manner over a long duration has resulted in undue loss of economic benefits and the unnecessary incurrence of legal costs.
    • (xviii) That the Defendants do not have any legal right to stay or occupy the said property as there is no valid lease agreement in place and the Defendants have to vacate the Plaintiff’s property.
    • (xix) That he prays to this Honourable Court to order that the Defendant to give immediate vacant possessions of the said premises.
    • (xx) That he also seek costs of this application from the Defendants.
      

Defendant’s Case

18. The Affidavit in Response deposed by the Defendant states as follows:
    • (i) That he is the person named and described as the 1^st Defendant in the within action and he is duly authorized by the 2^nd named Defendant, his father to make this on his behalf.
    • (ii) That he deposed to the facts which are within his knowledge save and except where it is stated to be on information and belief, he verily believe that matter deposed are true and accurate to the best of his knowledge, information and belief.
    • (iii) He has read the Affidavit of Shiu Ram filed on 16^th October, 2015 and respond to the same as follow.
    • (iv) That in response to paragraphs 1 and 2 of the said Affidavit he neither admit nor deny the same as he has no knowledge of the same.
      

RIGHT TO POSSESSION & ARGUABLE DEFENCE

(v) That in response to paragraph 3, save to admit that he resides with his family on the land comprised in ITLB No. 4/14/11715 described as Nasogela No. 29 (Part of) Lot 5 in the Tikina of Namata and Province of Tailevu, he denies the rest of the paragraph and state that he has been residing on the said land for the past 7 years.
(xxi) That he was renting the property of the Plaintiff with the agreed rental of $120.00 per month from 2008 and in 2009 the Plaintiff through his Power of Attorney son Ratnesh Sharma started negotiating with him to buy their land. (Annexed hereto and marked annexure “A” are copies of receipts as confirmation of the rent paid).
(vi) That on or about 30^th November 2009 the Plaintiff offered to sell his property for $8,000.00 and further stated that remaining term of lease for TLTB Ref 4/14/11715 was only 2 years and as such he agreed to buy the land for $8,000.00 and made a deposit of $2,000.00. (Annexed hereto and marked annexure “B” is copy of the receipt being for the purchases of the land).
(vii) That the Plaintiff and he did not engage in any written agreement since the lease period remaining for the land was less than two years therefore he agreed to engage in a verbal agreement and a deposit of $2,000.00 was made by me and he agreed to receive the balance sale amount of $6,000.00 when the new lease was issued and he also agreed that the monthly rental between the Plaintiff and myself will be cancelled until the settlement for the sale of property is finalised.
(viii) That prior to this, when he moved in the premises of the Plaintiff, it came to their attention that the water supply to this property is terminated and that the water bill arrears to this property is $4,741.56, however, the Plaintiff requested him to pay the said amount and promised to reimburse the full amount on the day of settlement and based on his promise he made arrangement with the Fiji Water Authority and made a first payment of $790.00 and instalments of $200.00 hereafter until the amount was made in full. (Annexed hereto and marked annexure “C1” is the copy of the reconnection invoice and arrangement and “C2” are the respective receipts).
(ix) That while they stayed in the property, the Plaintiff and his son who was the holder of the Power of Attorney migrated and as such he was kept in dark about the renewal of the lease of the said property and about the final settlement and he kept awaiting response from the Plaintiff to effect settlement over the said property.
(x) That on or about 2013 the Plaintiff offered him to purchase and he enter into a new Sale and Purchase Agreement with the consideration amount of $20,000.00.
(xi) That since he had made massive improvement to the land and the property and had paid for maintenance and outstanding water bills and electricity bills, he accepted the offer and entered into a new Sale and Purchase Agreement for a consideration sum of $20,000.00. (Annexed hereto and marked annexure “D” is the copy of the Sale and Purchase Agreement).
(xii) That after he had entered and executed the said Sale and Purchases Agreement in Diven Prasad Lawyers, he was advised by the Plaintiff’s lawyers Messrs Diven Prasad Lawyers that they would provide a copy to him once the Plaintiff has executed before an Notary Public in overseas which has not eventuated to-date.
(xiii) That after he had executed the Sale and Purchases Agreement, they were advised by the Plaintiff and his solicitors Messrs Diven Prasad Lawyers that the Lease Agreement for the land described as TLTB Ref 1/14/11715 has expired and that the Sale and Purchases agreement executed between the Plaintiff and he will be valid unless and until the Lease Agreement is renewed for another term and that the settlement will be effected as soon as the lease is renewed and based on the verbal promise by the Plaintiff and their solicitors, he continued to improve the property.
(xiv) That after the Sale and Purchases agreement was executed, he reminded the Plaintiff and their solicitors that a deposit of $2,000.00 has been paid on 30^th January 2009 which must remain as deposit for the said land and also reminded that the water bill arrears for sum of $4,741.56 paid by him must also act as a deposit for the said land which were agreed accepted by the Plaintiff and his solicitors.
(xv) That thereafter he also paid the land rent for the year 2014 valid until June 2015 on instructions from the Plaintiff and he assured that the rental payments for the land will expedite the process of renewal of lease. (Annexed hereto and marked with the letter “E” is the copy of the receipt from iTaukei Land Trust Board).
(xvi) That after he had executed the Sale and Purchases agreement, they also carried the valuation of the said land on 14^th August 2014 and after the valuation was completed they were advised by the Valuer that the pegs located some 2 metres into their existing residence. After they were informed by the Valuer, they immediately advised the iTaukei Land Trust Board and the Plaintiff to look into all the pegs into adjourning to he said property, however, the ILTB confirmed that the pegging was not as per the agreement between the Plaintiff and the ILTB this would have further resulted in demolishing 5 metres of the current dwelling. (Annexed hereto and marked with the letter “F” copies or receipt of the payment to the Valuer and a copy of the Valuation Report).
(xvii) That they also informed he Plaintiff to liaise with the ILTB and adjust the pegs and advise the accordingly in order to effect settlement.
(xviii) That the Plaintiff with the help of the TLTB adjusted the pegs of the property on 3^rd June 2015and on 5^th June 2015, the Plaintiff served a letter from Diven Prasad Lawyers stating that they are the illegal occupier and trespasser of the Plaintiff’s land and instructed them to vacate the said land immediately. (Annexed hereto and marked with the letter “G” is the copy of the letter from Diven Prasad Lawyers addressed as “Police Assistance-Illegal Occupier and Trespasser”).
(xix) That they continued to reside in the property despite receiving the letter from their solicitors since they are the intended buyers of the said property as per the Sale and Purchases Agreement.
(xx) That they are of the impression that the settlement will be effected once he Renewal of lease is granted and such they are holding on with the settlement amount which will be released on the settlement date.
(xxi) That they have been at all material time been ready, willing and able to full all their obligations under the said agreement to complete the transfer of the property from the Plaintiff to them.
(xxii) That he is advised that the land does not belong to him which he is aware of and acknowledge the same, however, he has been living on this land for past 7 years, have worked, maintained and developed it and today the value of the land has gone up.
(xxiii) That the Plaintiff family ought to compensate him for his labour and invest carried out on their property and he will move out and get a place of his own to live but as to date he do not have anywhere to go and the payment in compensation will help him.
(xxiv) That he has acquired as equitable interest on the said land and he will be totally prejudiced if the Plaintiff is allowed to evict him and his family as he will loose all his investments.
(xxv) That he verily believes that the Plaintiff does not have a defence to this claim.
(xxvi) Therefore the application filed by the Plaintiff seeking the Defendants to give immediate vacant possession of the property together with the cost shall be dismissed and struck out.
(xxvii) In the case of Ram Narayan v Moti Ram (Civ. App. No. 16/83) Gould J.P. said:

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."