Ali v Chabraji [1979] FJSC 80; Action 241 of 1978 (22 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 241 of 1978

BETWEEN

USMAL ALI f/n Abdul Raiman
Plaintiff

AND

CHABRAJI f/n Bubdar
Defendant

Mr. H.C. Sharma, Counsel for the Plaintiff
Mr. S. Anand, Counsel for the Defendant.

JUDGMENT

These proceedings arise out of a boundary dispute between neighbouring farmers.

The plaintiff's farm and the defendant's farm are substantially separated from each other by a large stream called the Waikomari according to plans submitted in evidence.

On the eastern bank of the creek is the plaintiff's farm on lot No. 9508 as shown in plans submitted by both sides. It is apparent from the plans that the Waikomari Creek flows into the Namaka River and the plaintiff's land is bounded on two adjacent sides by the creek and the river. The course now followed by the creek differs from its former course and the plaintiff alleges that as a result it no longer marks the whole of the boundary between the adjacent farms. He says that the creek now runs through part of his land cutting off a portion of it and leaving it so to speak, on the defendant's side of the creek.

The statement of claim alleges that the defendant has annexed that portion and claims its return with damages for loss of its use as from the time when the creek changed its course, allegedly 6 years ago.

The evidence of the plaintiff is that the creek changed its course dramatically in 1973 when Hurricane Bebe struck the area.

P.W.2, a registered surveyor, referred to a survey of 1954 showing the former course of the creek and superimposed upon it his own survey of the plaintiff's boundaries and the new course of the creek as shown in Ex. 4.

D.W.1 a Government surveyor presented a plan Ex. D1 which also shows an old course for the creek and a new course. He agreed in cross-examination that the portion in dispute falls within the original boundary of the plaintiff's farm lot 9508.

P.W.3 a resident and farmer in the area said that the creek had changed course as a result of hurricane Bebe and that it no longer separated the parties' farms as it had formerly done.

I have no hesitation in rejecting the evidence of the defendant that the creek had gradually changed course.

I find that the change in course was sudden and that it caused the creek to split the plaintiff's land. There is no doubt from the evidence of the surveyors on both sides that the disputed portion is part of the plaintiff's land.

The plaintiff says that the disputed area is 0.4 acre and the defendant's surveyor shows it as 1 rood or 0.25 acre. I am satisfied from the evidence of P.W.2 that the difference in areas is due to P.W.1 measuring to the water's edge and D.W.1 (the other surveyor), measuring to the top of the bank. For purposes of user the area given by D.W.1 is in my view the acceptable area i.e. 0.25 acre.

In para 6 of his amended statement of claim the plaintiff alleges that he cultivates 24 tons of cane per acre on his land and he claims 6 years loss of use of the land in question in terms of sugar production. No doubt he goes back to 1973, the year of Hurricane Bebe. However, he does not allege trespass by the defendant on his land for a period of six years. In para 4 he mentions the vague period of several years trespass.

I am satisfied that the defendant at one stage fenced off the portion in question. The plaintiff's evidence is that this was done in 1978 but the fence was taken down. He alleges that the defendant has been growing cane on it during the intervening years but this is denied by the defendant.

The proceedings were instituted in August 1978 and that is the year when the plaintiff alleges that the defendant fenced in the disputed portion. Now the plaintiff is farming the disputed portion, according to his evidence, but under protest from the defendant.

There has been no evidence that in 1974, '75, '76 or '77 the plaintiff endeavoured to cultivate the disputed land and was prevented from doing by the defendant. I am not satisfied that the defendant grew sugar cane on it; I am not satisfied that the plaintiff made any determined effort prior to 1978 to establish his right to the disputed portion. P.W.3, from his answers in cross-examination, seems to think that it has not been cultivated since the hurricane. Had the plaintiff tried to grow cane on the land in 1974 and been forcibly prevented from so doing I think he would have instituted proceedings then. I find that he was provoked to action when the defendant fenced off the land in 1978. There has been no proof of loss of use due to any trespass by the defendant, and on that ground the claim for damages is dismissed.

In any event his claim is based on 0.4 acres whereas the area in dispute is 0.25 acres on my finding. Again P.W.3 says that the plaintiff leaves about 1 chain of land fallow from the edge of the creek and river. That would very substantially reduce the arable area of the disputed portion as half its perimeter is bordered by the stream. The area he would probably cultivate for cane would probably be about one third of the area of 0.4 acre which he mentions in his statement of claim.

The plaintiff's claim for possession succeeds.

I allow $ 10.00 as nominal damages for trespass.

The defendant will pay the costs.

(Sgd) (J.T. WILLIAMS)
JUDGE

LAUTOKA,
22nd October, 1979