Goundar v Goundon [2022] FJHC 437; HBC41.2021 (26 July 2022)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 41 of 2021

BETWEEN: SATYA NAND GOUNDAR aka SATYA NAND GOUNDAN of Siberia, Labasa.

APPLICANT

A N D: RAMES CHANDAR GOUNDON of 16 Mali Place, Suva.

1^st RESPONDENT

A N D: DIRECTOR OF LANDS of GCC Complex, Nasova, Suva.

2^nd RESPONDENT

AND: ATTORNEY GENERAL OF FIJI of Suvavou House, Victoria Parade, Suva.

3^rd RESPONDENT

Appearance : Mr. Rishal Dayal for the Applicant
Mr. Benjamin Ram for the 1^st Respondent
Ms. Mary Motofaga for the 2^nd and 3^rd Respondents

Hearing : Monday, 23^rd May, 2022 at 9.30 a.m
Decision : Tuesday, 26^th July, 2022 at 9.00am

DECISION

(A) INTRODUCTION

[01]. The matter before me stems from the applicant’s Originating Summons filed on 21.09.2021 seeking the grant of the following orders:

1. An Order that State Lease No. 19550 (LD 4/9/3356) known as PT. of Labasa & Naiyaca (formerly Lot 2 SO 965) situated at Labasa, Macuata be subdivided by the 2^nd Respondent into two equal lots and the costs of the subdivision be shared equally between the Applicant and the 1^st Respondent;
2. Costs of this action be paid by the 1^st Respondent; and
3. Any further or other relief as this Honourable Court deems just.
   

[02]. The originating summons is supported by an affidavit sworn by the applicant on 16.09.2021.

[03]. The first respondent opposed the application and filed an affidavit in opposition sworn on 17.11.2021 followed by an affidavit in reply there to.

[04]. The second respondent in response to the relief sought by the applicant stated that it shall abide by any orders of the court.

[05]. The applicant and the respondents were heard on the summons. They made oral submissions to court. In addition to oral submissions, counsel for the applicant filed written submissions for which I am grateful.

(B) BACKGROUND

[01]. The applicant and the first respondent are the joint registered proprietors of State Lease no. 19550 (LD 4/9/3356) known as PT. of Labasa & Naiyaca (formerly Lot 2 SO 965) situated at Macuata, Labasa (Annexure “A” referred to in the affidavit of applicant sworn on 16.09.2021).

[02]. The applicant and the first respondent are brothers and a dispute regarding the subject land comprised in State Lease No. 19550 arose between the parties and the following final orders by consent were entered in Labasa High Court Civil Action No. HBC 20 of 2019 after a successful mediation between the applicant and the first respondent.

“Parties by consent have agreed to the equal share of the land, registered proprietor of State Lease No 19550 known as Pt. of Labasa & Naiyaca (formerly Lot 2 SO 965) situated at Macuata Labasa having File Reference No. LD 4/9/3356 which is in question as follows:-

1. The place of residence of the plaintiff to remain with the boundary extending to the river.
2. The equal share will be given to the defendant, 9 feet away from the plaintiff’s residence and the remaining piece of land to be divided between the plaintiff and the defendant.

3. All the claim and counter-claim by consent are struck out.

4. Parties to bear their own costs.“

[03]. As per the consent orders, the applicant and the first respondent were to attend to subdivision of subject land comprised in State Lease No. 19550.

[04]. The applicant alleges that despite numerous requests, the first respondent has failed and refused to facilitate the subdivision of the said property.

[05]. The applicant asserted the followings in his affidavit sworn on 16.09.2021 (reference is made to paragraph (10) to (15) of the applicant’s affidavit).

10. THAT after the Orders were made, I had engaged Mr Muni Dutt of Keystone Consultants who provided me with a quotation of $5,000.00 (Five Thousand Dollars) to attend to subdivision works. Annexed hereto and marked with letter “C” is a copy of ‘To Whom It May Concern’ letter dated 20^th July, 2021 from Mr Munil Dutt of Keystone Consultants.
    
    11. THAT I gave the quotation to the 1^st Respondent and requested the 1^st Respondent to pay me $2,500.00 (Two Thousand Five Hundred Dollars), being 50% of the quoted price, so that I can instruct the surveyors to commence the subdivision works.
        
    12. THAT my surveyor has also prepared a proposed subdivision plan of Lot 2 on Plan SO 556. Annexed hereto and marked with letter “D” is a copy of the proposed subdivision plan.
        
    13. THAT I have obtained the relevant consents from the Sugar Industry Tribunal (SIT) and Ministry of Agriculture (MOA) for the subdivision of the lot (Lot 2) but the 1^st Defendant has refused and/or neglected to help in the subdivision of the said lot. Annexed hereto and marked with letter “E” and “F” are copies of the consent from the Sugar Industry Tribunal (SIT) and Ministry of Agriculture (MOA).
        
    14. THAT due to the 1^st Respondent’s failure and/or refusal to his share of the survey fees, I am not able to have the lots separated and separate titles issued to the 1^st Respondent and me.
        
    15. THAT all these while I have been paying land rent to the 2^nd Respondent while 1^st Respondent has been enjoying and having a good time in Suva.
        

[06]. In reply, the first respondent asserted the following in his affidavit in opposition sworn on 17.11.2021.

1. That my responses to the Applicant’s Affidavit in Support sworn on 16 September 2021 and filed on 21 September 2021 follows:
   1. I agree with paragraphs 1 and 2;
   2. I neither agree nor disagree with paragraph 3;
   100. I agree with paragraphs 4 — 8;
   4. I disagree with paragraph 9 and say that the surveyor till date has not met me for a discussion on the manner in which the subdivision will take place despite my son and me making 2 visits to his office/yard and 3 attempts to meet him at a scheduled time and place which he failed to show up. I kept calling on the number of the surveyor however he continuously ignored my call nor did he return my calls;
   5. I agree with paragraph 10;
   6. I agree with paragraph 11 on condition that the surveyor meets me in person;
   7. I agree with paragraph 12 but say that the subdivision plan is biased as the better part of the property is being given to the Applicant. Thus, this is the reason why I was/am adamant to meet the surveyor;
   8. I disagree with paragraph 13 and say that I took the initial steps to have the subdivision on forth going, however, the Applicant did not agree with the surveyor I chose as the Applicant said that the surveyors fees was too high. Annexed and marked “A” is copy of the quotation from Land Planning, Surveying & Engineering Consultants (Fiji) Professional Land Surveying Inc and my application to Lands Department for the appointment of my surveyor;
   9. I disagree with paragraph 14 and say that I will pay 50% of the surveyor’s fees amounting to $2,500.00 on the condition that he meets me and amends the subdivision plan;
   10. I disagree with paragraph 15 and say that I have also made significant amount of payment to the Lands Department by clearing the rental arrears, paid for the lease documentation fees. Annexed and marked “B” are copies of the receipt.
   11. I disagree with paragraph 16 and say that this is a frivolous and vexatious application made by the Applicant who could have sorted this matter out via alternative dispute resolution.
2. That I would like to further say that the Applicant built his house and runs his business in the name of Satya Nand Goundar Tyre Centre and Car Wash without seeking consent of the 2^nd Respondent.
3. That my solicitors were liaising with the Applicant's solicitors to settle this matter via terms of settlement but neither the Applicant nor his solicitors understood our approach. Annexed and marked “C” is copy of the Letter from my solicitors.
4. That I being the eldest son in my family, I paid all the debts that left unpaid by my late father at Westpac Banking Corporation in the amount of $33,000.00.
5. That the Applicant reaped the benefits of all my hard work and efforts trying to maintain our property. I feel disgusted about the attitude/approach taken by my brother/Applicant to resort to Court to settle this matter.
6. That I verily believe that the Applicant’s solicitors are misguiding the Applicant and not making the proper application. The Applicant's solicitors are deliberately procrastinating this matter in order to increase their legal fees for which they have made a deal with the Applicant to transfer one of the lots so that the fees will be set off.
7. From 1996 till date, the Applicant benefitted from all the proceeds of the farm produce and not a single cent was given to me or any of my siblings.
8. That I pray this action to struck out and for the 2^nd Respondent and 3^rd Respondent to take a strict approach and look into the allegations I have laid against the Applicant and his solicitors.
   

(C) CONSIDERATION AND THE DETERMINATION

[01]. The applicant and the first respondent are brothers. They are joint registered proprietors of State Lease No. 19550 (LD 4/9/3356).

[02]. There have been long –running disputes over the subject land comprised in State Lease No. 19550 and there was a civil action instituted in the Labasa High Court and final orders by consent were entered after a successful mediation between the applicant and the first respondent.

[03]. The Lands Department inspection report of the subject land confirms that the subject land is occupied and cultivated by the applicant while the first respondent resides in Suva.

[04]. Upon perusal of the sealed order of the High Court dated 27.03.2020 appearing as annexure marked “B” referred to in the affidavit of Satya Nand sworn on 16.09.2021, it is clear to me that the applicant and the first respondent by consent have agreed to equal share of the land comprised in State Lease No. 19550 subject to the following:

• The place of residence of the applicant to remain with the boundary extending to the river.
  
• The equal share will be given to the first respondent, nine feet away from applicant’s residence and the remaining piece of land to be divided between the applicant and the first respondent.
  

[05]. The applicant complains that the first respondent refused to facilitate the subdivision of the said property. The applicant further states that he had prepared a proposed subdivision plan and he had obtained the relevant consent from the Sugar Industry Tribunal and Ministry of Agriculture for the subdivision but the first respondent has refused to help him in the subdivision. The applicant further complains that due to the first respondent’s failure to pay his share of the survey fees, the applicant is not able to have the lots separated and arrange for the separate titles issued to the applicant and the first responded.

[06]. In reply, the first respondent says (reference is made to paragraph 1 (d), (g), (h), (i), (j) and (k) of the affidavit in opposition of the first respondent sworn on 17.11.2021).

1. That my responses to the Applicant’s Affidavit in Support sworn on 16 September 2021 and filed on 21 September 2021 follows:
   
   1. I agree with paragraphs 1 and 2;
   2. I neither agree nor disagree with paragraph 3;
   100. I agree with paragraphs 4 — 8;
   4. I disagree with paragraph 9 and say that the surveyor till date has not met me for a discussion on the manner in which the subdivision will take place despite my son and me making 2 visits to his office/yard and 3 attempts to meet him at a scheduled time and place which he failed to show up. I kept calling on the number of the surveyor however he continuously ignored my call nor did he return my calls;
   5. I agree with paragraph 10;
   6. I agree with paragraph 11 on condition that the surveyor meets me in person;
   7. I agree with paragraph 12 but say that the subdivision plan is biased as the better part of the property is being given to the Applicant. Thus, this is the reason why I was/am adamant to meet the surveyor;
   8. I disagree with paragraph 13 and say that I took the initial steps to have the subdivision on forth going, however, the Applicant did not agree with the surveyor I chose as the Applicant said that the surveyors fees was too high. Annexed and marked “A” is copy of the quotation from Land Planning, Surveying & Engineering Consultants (Fiji) Professional Land Surveying Inc and my application to Lands Department for the appointment of my surveyor;
   9. I disagree with paragraph 14 and say that I will pay 50% of the a surveyors fees amounting to $2,500.00 on the condition that he meets me and amends the subdivision plan;
   10. I disagree with paragraph 15 and say that I have also made significant amount of payment to the Lands Department by clearing the rental arrears, paid for the lease documentation fees. Annexed and marked “B” are copies of the receipt.
   11. I disagree with paragraph 16 and say that this is a frivolous and vexatious application made by the Applicant who could have sorted this matter out via alternative dispute resolution.

I note that the Ministry of Lands and Mineral Resources has not received any application for subdivision of the subject land. It seems to me manifest that there has been disputes between the applicant and the first respondent over the proposed subdivision plan. The essence of the matter is whether the proposed subdivision plan is in accordance with the consent orders entered in Labasa High Court Civil Action No- HBC 20 of 2019.

[07]. In those circumstances, the court deems just, expedient and equitable to make an order for the subdivision to be completed by the second respondent subject to the applicant and the first respondent bearing all administration costs, fees and charges of the second respondent associated with the subdivision work. This would be for the benefit of the applicant and the first respondent.

ORDERS

[01]. The State Lease No. 19550 (LD 4/9/3356) known as PT. of Labasa and Naiyaca situated at Labasa, Macuata be subdivided by the second respondent as per the final orders by consent entered in the Labasa High Court Civil Action No. HBC 20 of 2019 on 27.03.2020.

[02]. All administration costs, fees and the charges of the second respondent associated with the subdivision works be born equally by the applicant and the first respondent.

[03]. The parties to bear their own costs in these proceedings.

.................................

Jude Nanayakkara

JUDGE

High Court – Suva
Tuesday, 26^th July 2022.