IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 4/09

BETWEEN:

JANKI F/N BIRAG of Lot 73, Omkar Road, Narere in the Republic of Fiji Islands, Domestic Duties.
Plaintiff

AND:

NARENDRA PRASAD F/N SHIU SAHAI of Lot 73, Omkar Road, Narere in the Republic of Fiji Islands, Carpenter.
Defendant

The Plaintiff appeared in person
Mr. Raman Singh for the Defendant

Judgment

Background

1] By writ of summons the plaintiff commenced this action against the Defendant. The Facts of the Plaintiff's case are as follows;

2] She said that she is the lawful owner of a property located at Lot 73, Omkar Road, Narere, Fiji. She is 63 years old and the Defendant named in this action herewith is her biological son. In 2002 her son moved into her home when the Red Cross gave her assistance to build a house. Since 2004 the Defendant and his wife have been abusive towards the plaintiff and the defendant is always threatening and abusing her both verbally and physically. Further, she has suffered continual abuse at the hands of the Defendant and his wife and would therefore seek this Court's Order for defendant to be kept away from her and her home.

3] The plaintiff said that the Police have been called on numerous occasions since 2004, more recently she has been threatened approximately 3 or 4 times a month throughout 2009.

4] Therefore she can no longer bear to be treated this way even after the Defendant was convicted by the Suva Magistrates Court on 28.6.05 for assaulting her. 
5] WHEREFORE THE PLAINTIFF PRAYS FOR AN ORDER:

(i)	Restraining and restricting the Defendant whether by himself or by his servants and/or agents in whatever manner from interfering, molesting, or abusing and any manner of form the Plaintiff, her family or any other persons residing at the residential property of the Plaintiff situated at Lot 73 Omkar Road, Narere, Fiji until further Order of the Court;

(ii)	Restraining and restricting the Defendant whether by himself or by his servants, and/or agents in whatever manner from interfering, molesting, entering onto, and occupying the residential property of the Plaintiff situated at Lot 73 Omkar Road, Narere, Fiji until further Order of the Court

6] The Plaintiff filed this Writ of summons along with the ex parte notice of motion. On 14th August 2009, this notice of motion was supported by the affidavit and documents tendered as "J1 to J3". Then the plaintiff filed Inter parte notice of motion for same relief. On 14th December 2009, it was served to the Defendant and affidavit of service is in this case record. Then my predecessor, her worship Madam Makereta Mua gave interim injunction orders against the Defendant as below;

a) The Defendant in this matter whether by himself or by his servant and/or agents be restrained and restricted from entering the plaintiff's said residential property.

b) The Defendant in this matter whether by himself or by his servant and/or agents in whatever manner from interfering, molesting or abusing in any manner of form the Plaintiff, her family or any other person residing at said residential property. 

7] This was served on 29th December 2009 to the defendant and affidavit of service was filed in record. This case was called on 18th-12-2009 and the defendant appeared in courts and above interim injunctions were granted inter parte. Then he was given 21 days to file Statement of defence. On 21-01-2010, this case was again called. It is seen that the defendant had not complied the interim injunction reliefs, he was then ordered to vacate the property immediately. He was given another 21 days to file the defence. 

8] On 04th February 2010, the defendant filed notice of motion to vacate said interim orders, but they could not find the plaintiff and no order was made in this regard. Then on 11-03-2010, matter was fixed for hearing of notice of motion on 30-06-2010. On that date court records indicates that Mr. Raman Singh for the defendant said "there are no problems between the Plaintiff and the defendant at the moment. An order was granted ex parte; we are ready to hear the substantive case". It is therefore seen that these restraining orders are still prevailing and the defendant did not comply the order and vacate the premises. 

9] Meantime the defendant has filed the Statement of defence. In that he says that states that the property is located at Lot 6, Vatoa Road, Narere, Nasinu and not at 73 Omkar Road, Narere, Fiji. The defendant further denies that the Plaintiff is the only owner of the land and the house built on the said land is partly his as he has contributed towards it. The defendant said that he moved with the Plaintiff in 2000 and not 2002. The Defendant brought his dismantled house and built it on the land and the house was extended after assistance from Red Cross. He further says that he incurred expenses in building the house as the assistance from Red Cross was not enough. The defendant says that the Plaintiff has been always using abusive language. But the defendant admits that he pleaded guilty to the assault charge after he was wrongly advised by a Court Staff. This Statement of defence dated on 21st of January 2010 and nothing was prayed as a relief from this court. Even the defendant did not ask to dissolve the interim injunctions nor that the plaintiff action be dismissed with cost or other relief. 

Evidence

10] This case heard on 10th August 2011 and Judgment was fixed for today. The Plaintiff in her evidence said that her application is to the defendant to vacate the house. She said "The house is under my name, (title tendered as Ex-1). The house is made from roofing irons and timber; part of the floor is cement and concrete. It got 5 bedrooms. I am requesting to leave the defendant from this house and not to damage this house". She said that Fiji Red Cross supported her to build this house. She also spent money. The defendant did not contribute to build the house. He supported the defendant, she paid bills. She said at the moment she is renting. He left the place because the defendant always swearing and abusing her. She said that the defendant claims half share but he did not have everything she bought. 

11] In cross examination, the Plaintiff said 15 years ago the defendant came to stay with her as he had no place to go at that time. They stayed in a squatter settlement. The defendant was staying at Magul Road and there was no place to go, the he asked me and I allowed him to come; the plaintiff further adduced. The plaintiff said that the defendant did not dismantle the house and built a house her property. The plaintiff admitted that the lease is written for her name and her youngest son, Muneshwar's name. She said she is uneducated and her son prepared the documents. She said she is not ready to pay any compensation to the defendant. The defendant suggested that her portion is still vacant and she can come and stay with them. But she refused that the defendant and his wife is very abusive therefore she cannot live with them. 

12] In re examination the plaintiff said that the defendant did not contribute any money and he should vacate the place obeying court order as soon as possible. 

13] Then the Plaintiff called Muneshwar Prasad as a witness. He said this house was built by his mother. There were in Valelevu Settlement and that house was dismantled. Those materials were given to the defendant. And he built a house in Magul Road. To this land he did not get any right. The Red Cross gave $3000 to build the house. Then defendant created problems and they moved out. When he moved out the defendant assaulted his mother and it was reported to the police. Then his mother also moved out of fear. Now she is renting and but they got the title (His mother and him). This witness said that we are the title holders, therefore asked the defendant to leave the premises. He said that he has old house in squatter settlement and he is willing to give that. He said they are not throwing them out, but his mother can peacefully stay rest of her life; witness said.

14] He said that lease application was in his and his mother's name. He said the family house was sold by the father. Although the lease is in his name, he left the place to solve the problem. But problems were not solved and it still persists. 

15] Then, the plaintiff closed her case. The defendant gave evidence thereafter. 

16] The defendant said the plaintiff is his mother and other witness is his brother. He stayed in this house. It was made of Tin, Roofing Iron and timer. It is a 30 x 40 feet house. When he worked in Kasabia, it was built in a squatter settlement. Initially it was 20 X 40 feet; there was no lease at that time. At that time he said he dismantled the Magul Road house and built this one. At that time he has 4 kids, now he has 6 kids. He said his mother had problem with him then he moved out. He stayed with sister in law. Then mother had problems with younger brother and he moved out. Then he was selling vegetable and mother approached him and invited to stay with him the Red Cross supported to build the house. His one of brother who is in Levuka paid $300. Mother had problems with him, he then moved out to Levuka. The defendant asked to dismantle the 15 X 10 feet portion which he built. The defendant said when younger brother moved out the plaintiff started problems with him. Then she reported matter to the police. The Police came and disturb his work place. The defendant said they are all three brothers, but mother chased all of them and created problems with them. He said he s asking half share of the land or he may be compensated $7000 or $8000 to vacate the place. 

16] In cross examination the defendant said the Red Cross gave only two loads of gravel, 150 blocks, 32 of 16 feet roofing iron. The rest of materials they had to buy. The plaintiff suggested that on that time she worked in a garment factory. But the defendant refused and she was unemployed and he had a car registration number BJ 007 and he sold it for $550 and spent that money for house building. The defendant said she gave only $36. The plaintiff suggested that the defendant is not telling the truth. But defendant denied it. 

17] Then the defendant closed the case. The defendant Counsel says that the plaintiff only got half share and other owner has no made the claim and she cannot maintain the application.

Determination 

18] This court has no jurisdiction to decide the ownership of the land. The plaintiff asked to eject the defendant who is in unlawful possession and recovery of possession. Section 16 of the Magistrates Court Act (Cap 16) gives the Jurisdiction to hear civil suits. I reproduce section 16(1) for clarity. 

"16.-(1) A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes-

(a) (i) in all personal suits arising out of any accident in which any vehicle is involved where the amount, value or damages claimed, whether as a balance claimed or otherwise, is not more than three thousand dollars;

(ii) in all other personal suits, whether arising from contract, or from tort, or from both, where the value of property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than two thousand dollars;

(b) (i) in all suits between landlords and tenants for possession of any land (including any building or part thereof) claimed under any agreement or refused to be delivered up, where the annual value or annual rent does not or did not exceed two thousand dollars;

ii) in all suits involving trespass to land or for the recovery of lands (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof);"

19] In this case the plaintiff filed the recovery of land. She does not ask any decision regarding ownership. Even the defendant did not dispute the ownership and it belongs to the State. This was given to the Janaki (the plaintiff) and Munneshwar Prasad on 18th March 2010 under Crown Lease 729942. It had commenced on 1st of July 2009 at yearly rental of $300 payable to the Director of Lands. This is well proved by Ex-1. Thus, the defendant has no claim in this land. He said that he used his funds and materials to build this house but the plaintiff denied it. The defendant did not prove that he spent moneys on this property. 

20] The plaintiff has taken interim injunction to evict the defendant. On that application, she submitted several documents. These documents were not impeached by the defendant. It is apparent that Red Cross helped her to build the land. The defendant has not made any counterclaim for restitution of his money. Therefore, this court cannot give any sort of relief which the defendant has not prayed for. Even the defendant has not prayed for dismissal of this action in his Statement of Claim. He did not dispute interim injunctions and these orders still prevail. 

21] This is a civil case and the plaintiff should prove her case balance of probabilities. By Ex-1 she proved she is the lawful tenant of this land. There is no joint ownership and her occupation of this land and house has been stopped unlawfully by the defendant. Therefore the plaintiff has legal right to recover her land. The defendant is her live and licensee and she had terminated that permission by her acts, therefore defendant has no right to stay this property against her will. I hold that the plaintiff has proved her case balance of probabilities.
 22} I make following orders

a)	There will be judgment for the plaintiff against the defendant as plaintiff prayed in the statement of claim.

b)	The prevailing interim injunctive orders are hereby made permanent. 

c)	The statement of defence is hereby dismissed.

d)	The Defendant to vacate the premises forthwith and the plaintiff has liberty to file contempt papers for non compliance of interim injunctive orders. 

e)	Parties to bear their own cost. 

Orders Accordingly

On 24th October 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate