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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 95 of 2017
BETWEEN
FIJI ROADS AUTHORITY
PLAINTIFF
AND
MARY NAGAMMA DASS, HAROLD SURYA KANT PANNIKER, IVAN SUNDAR PANNIKER and GERALD NEELAM KANT PANNIKER
DEFENDANTS
COUNSEL
Ms N. Choo for the Plaintiff
Secondnamed Defendant in Person
DATE OF HEARING
1 June 2017
DATE OF JUDGMENT
31 October 2017
JUDGMENT
Introduction
“1. A Declaration that the Defendants, being the registered Lessees of the land known as Lot 72, Wainibuku being the land in Crown Lease 2408 have deliberately and knowingly encroached on the adjacent land known as the Road Reserve and vested in the Plaintiff pursuant to the Fiji Road Authority Decree 2012 by building a structure over a portion of the Plaintiff’s vested land without the consent of the Plaintiff.
(“the Originating Summons”)
For Plaintiff
(i) Affidavit of John McGregor Jefferies sworn on 4 April 2017 and filed on 5 April 2017 (hereafter referred to as “Jeffries 1st Affidavit”);
(ii) Affidavit of John McGregor Jefferies sworn on 30 May 2017 and filed on 30 May 2017 (hereafter referred to as “Jeffries 2nd Affidavit”);
For Secondnamed Defendant
Affidavit of Secondnamed Defendant sworn and filed on 19 May 2017 (hereafter referred to as “Secondnamed Defendant’s Affidavit”).
Background/Undisputed Facts
Issues of Determination
(i) Whether structure on the property is still encroaching the road reserve along Kings Road and Sasawira Road, Kings Road and Sasawira Road;
(ii) Whether Plaintiff is entitled to cost of this proceeding.
Whether Structure on the Property is encroaching on Road Reserve, Kings Road and Sasawira Road
“109. -(1) Where any building on any land, whether erected before or after the commencement of this Act, encroaches on any part
of any adjoining land (that part being referred to in this section as the piece of land encroached upon), whether the building was
erected by the owner of the first-
mentioned land (in this section referred to as the encroaching owner) or by any of his predecessors in title, either the encroaching
owner or the owner of the piece of land encroached upon may apply to the court, whether in any action or proceeding then pending
or in progress and relating to the piece of land encroached upon or by an originating summons, to make an order in accordance with
the provisions of this section in respect of that piece of land.
(2) If it is proved to the satisfaction of the court that the encroachment was not intentional and did not arise from gross negligence, or, where the building was not erected by the encroaching owner, if in the opinion of the court it is just and equitable in the circumstances that relief should be granted to the encroaching owner or any other person, the court, without ordering the encroaching owner or any other person to give up possession of the piece of land encroached upon or to pay damages, and without granting an injunction, may in its discretion make an order -
(a) vesting in the encroaching owner or any other person any estate or interest in the piece of land encroached upon; or
(b) creating in favour of the encroaching owner or any other person any easement over the piece of land encroached upon; or
(c) giving the encroaching owner or any other person the right to retain possession of the piece of land encroached upon.
(3) Where the court makes any order under the provisions of this section, the court may, i order, declare any estate tate or interest so vested to be free from any mortgage or other encumbrance affecting the piece of land encroached upon, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease or contract affecting or relating to that piece of land.
(4) Any order under the provisions of this section, may be made upon and subject to such terms and conditions as the court thinks fit, whether as to the payment by the encroaching owner or any other person of any sum or sums of money, or the execution by the encroaching owner or any other person of any mortgage, lease, easement, contract or other instrument, or otherwise.
(5) Every person having any estate or interest in the piece of land encroached upon or in the adjoining land of the encroaching owner, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, contract or easement affecting or relating to any such land, shall be entitled to apply for an order under the provisions of this section, or to be heard in relation to any application for or proposal to make any such order. For the purposes of this subsection the court may, if in its opinion notice of the application or proposal should be given to any such person, direct that such notice as it thinks fit shall be given to that person by the encroaching owner or any other person.
(6) Every order vesting any estate or interest in any person under the provisions of this section shall for the purposes of the Stamp Duties Act be deemed to be a transfer on sale and shall be liable to stamp duty accordingly. (Cap 205)”
(i) Plaintiff “is carrying out construction work on Kings Road between Nakasi and Davuilevu. The road is being upgraded from 2 lane carriageway to 4 lane carriageway over a length of 3.7 kilometers with footpaths along both sides of the carriageway (Annexure “E” of Jeffries 1st Affidavit - 1st paragraph);
(ii) During the course of the construction, it was revealed that Secondnamed Defendant has constructed structure on the property which are encroaching on road reserve along Sasawira Road and Kings Road and both roads;
(iii) Nausori Town Council had given notice to Secondnamed Defendant to remove the structure and has filed charges against Secondnamed Defendant in Nausori Magistrates Court in 2016;
(iv) Plaintiff’s Officers, Officers from Opus and Secondnamed Defendant met on 14 March 2017 (“the meeting”);
(v) At the meeting Secondnamed Defendant acknowledged that the structures have encroached on road reserve and sought twenty-one (21) days to dismantle the structure;
(vi) Plaintiff refused to grant Secondnamed Defendant twenty-one (21) days but instead granted him five (5) days to remove the encroaching structure;
(vii) On 15 March 2017, Plaintiff wrote to Secondnamed Defendant confirming the discussion held during the meeting and giving notice for him to remove the structures and his assets from the road reserve;
(viii) Secondnamed Defendant has removed part of the encroaching structure but has not done so fully;
(i) Encroachment was not intentional and an unforeseen human error;
(ii) Secondnamed Defendant’s request to remove this encroachment within twenty-one (21) days was refused;
(iii) Plaintiff agreed to assist in removal of structures;
(iv) Plaintiff through its contractors erected barricades which effected him to demolish the structures;
(v) Plaintiff is intending to acquire part of his property for which he needs to be compensated;
(i) Secondnamed Defendant has constructed structures encroaching on road reserves along Sasawira Road and Kings Road intentionally and not due to a human error;
(ii) Secondnamed Defendant was made aware of the illegal structures on or about 11 May 2016, as appears from Annexure “JMJ1” of Jefferies 2nd Affidavit (notices issued by Nausori Town Council);
(iii) Secondnamed Defendant deliberately delayed the removal of the encroachments;
(iv) In fact on 5 May 2017, Secondnamed Defendant informed Court that encroaches have been removed and Plaintiff wants to acquire part of his land but when he filed the Affidavit as directed by Court he raised the issue of barricades because of which he could not get crane to remove the containers;
(v) Secondnamed Defendant mentioned the barricade when the Originating Summons was called on 25 April 2017, but did not say anything about it when the Originating Summons was called on 5 May 2017.
(vi) On 5 May 2017, Secondnamed Defendant informed Court that he removed the encroachment and that Plaintiff wants to acquire his land.
(vii) This clearly shows that Secondnamed Defendant to some extent attempted to mislead this Court on 5 May 2017.
Costs
Orders
(i) Plaintiff cause the barricade placed along Kings Road and Sasawira Road to be removed by 3 November 2017;
(ii) Secondnamed Defendant within three (3) days of the barricade being removed dismantle and remove all structures constructed on road reserve along Sasawira Road and Kings Road including both Roads together Defendants assets and materials from the road reserves along Sasawira Road and Kings Road and both Roads;
(iii) If Secondnamed Defendant fails to dismantle and/or remove the structures and assets from the road reserves and the roads as ordered in paragraph 28(ii) of this Judgment then Plaintiff whether by itself or its contractors shall be at liberty to dismantle and remove the structure and assets from road reserves along the Sasawira Road, Kings Road and both Roads [at Secondnamed Defendant’s cost] without being liable for any damages caused to any other structure constructed on Defendants property comprised and described in Crown Lease No. 2408 whilst dismantling and removing the structures and assets on the said road reserve and the roads;
(iv) Secondnamed Defendant do pay Plaintiff’s cost of this action assessed in the sum of $2,000.00 within thirty (30) days from date of this Judgment.
.......................
K. Kumar
JUDGE
At Suva
31 October 2017
R. PATEL LAWYERS FOR THE PLAINTIFF
SECONDNAMED DEFENDANT IN PERSON
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URL: http://www.paclii.org/fj/cases/FJHC/2017/832.html