Dediya v Ketner [2019] NRSC 24; Civil Suit 29 of 2018 (12 July 2019)

THE SUPREME COURT OF NAURU

[CIVIL JURISDICTION] Civil Suit No. 29 of 2018

Between: Rosehilda Dediya & Chrishilda Akubor

PLAINTIFFS

AND: Eneasi Ketner

RESPONDENT

Before: Judge Rapi Vaai

APPEARANCES:
Appearing for Plaintiff: V Clodumar
Appearing for the Respondent: K. Tolenoa

Date of Hearing: 24/5/2019
Date of Ruling: 24/5/2019
Date for Reasons: 12/7/2019

Reasons for Ruling

1. Before the court is an unfortunate bitter dispute between a brother and his two sisters over the occupation of the family house which they and their other siblings inherited following the death of their mother who died in July 2003, and her estate determined, distributed and published on the 14^th July 2004.
   
2. In April 2018 the brother, the defendant in these proceedings, who was living elsewhere with this wife and family and was going through marital problems, was admitted to hospital.

He wanted to move into the family home which was then occupied by his sisters, the plaintiff’s, and their families, upon his discharge from hospital.

He did move into the family house upon his discharge and occupied one of the 4 bedrooms which was already occupied.

Not long after his adopted daughter and children also moved into the house and occupied one of the bedrooms which was occupied by Anna, daughter of the deceased sister of the plaintiffs and defendant.

3. Anna and her late mother have been living in the family house together with the plaintiffs since the death of the plaintiffs and defendant’s mother.
   
4. It seems that friction and disagreements commenced to develop soon after the defendant’s adopted daughter moved in. The defendant’s other daughter and her young family were also living in the house.
   
5. By November 2018 the differences have developed to bitterness, abuses, threats and confrontational between the plaintiffs and defendant and between plaintiffs and defendant’s adopted daughter. Police were at times summoned.
   
6. On the 21^st December 2018 the plaintiff obtained exparte an interim injunction which evicted the defendant and his two daughters from the family house.
   
7. On the afternoon of Friday 24^th May 2019, which was my last day for that circuit, I entertained the application by the defendant to discharge the interim injunction. I declined the application and told counsels I will deliver my reasons upon my return. The following constitutes my reasons.
   

The Exparte Injunction

8. The plaintiffs alleged that the house which their late mother intended to be occupied by the daughters only was solely occupied by their late older sister and the plaintiff’s families since their late mother’s death.

They all lived peacefully until the defendant and his family came and lived with them. His daughter and young family came uninvited and took over a bedroom which was already occupied. When the plaintiffs displayed their displeasure the defendant became angry and aggressive.

9. Attempts by the plaintiffs to resolve living arrangements was rejected by the defendant. He became argumentative, aggressive and threatening. He even declared he was the owner of the house.

Plaintiff Rosehilda in her supporting affidavit deposed at paragraph 12, 13 and 14:

12. During the argument, he warned me not to enter the dwelling house again or he will kill me and my children. This got me worried because I know what type of man he is. He does not make idle threats.

13. I feared for my safety and my family’s safety so we chose to sleep outside the house, in my unfinished house. We have been sleeping there until now.

14. The defendant brought his other daughter to move into the Dwelling House while we languished outside in the heavy rain and thunder as we do not have a proper roof over our heads. I even have an infant grandson sleeping outside.

Application to discharge the interim injunction

10. The Notice of Motion simply states:
    
    1. That the Interim Injunction Order made on the 21^st December 2018 against the Defendant in this case be dissolved.
       
    2. That the status quo pertaining to the occupant of House No.3 ....be restored to the Defendant.
       
    3. The plaintiffs bear the cost of this application.
       

The Defendant intends to read and rely upon his affidavit in support filed herein during the hearing of this application.

11. In his supporting affidavit the defendant contended that he, the plaintiffs and other siblings including himself are part owners of the house as beneficiaries of their late mother’s estate.
    
12. Before he moved into the family house, his oldest daughter and husband were already living with the plaintiffs in the house. He does not deny that there were ill feelings, dispute and violence before the interim injunction was granted but he contended the plaintiff Rosehilda was the perpetrator. Her violent conduct led to her arrest by the police on one occasion when she whilst under a state of drunkenness, assaulted the defendant’s daughter.
    
13. As a result of the injunction the defendant and his daughter are now living at different places.
    
14. As part owner of the family house he is entitled to occupy the house to which he, the plaintiffs and other siblings have equal shares.
    

Serious question to be tried

15. Both the plaintiffs and the defendant are land owners. Each of them has unsevered equal share in the estate of their late mother. The mother did not devise the house to any particular beneficiary, neither was it resolved by family agreement despite contentions by the plaintiffs that the mother left the house to all her daughters.
    
16. If the house was built under the Nauru Housing Scheme does the late mother have the right to decide the ownership of the house if she did say what the plaintiffs contended?
    
17. The merits of the claims by the parties will be a matter for determination at the substantive hearing. The issue for present purposes is whether the interim injunction should continue pending the determination of those issues.
    
18. Ownership and occupancy of the house are issues for trial. It is an arguable case for relief.
    

Balance of Convenience

19. The balance of convenience or the balance of the risk of doing injustice test is the dominant consideration that determines the grant or refusal of an interlocutory injunction. At this stage where a final determination on the uncompleted evidence cannot be made, the court must weigh the respective risks which may result from its deciding one way or the other.
    
20. The balancing act is to be set against the reality of the housing shortage on island.
    
21. Before the defendant moved into the family home the four bedrooms were already occupied; it was already over-crowded. The over crowding was exacerbated by the arrival of the daughter and her young family which eventually led to hostility and confrontation. Both camps are equally responsible. Respect between brother and sister, and amongst the family members, young and old does not exist.
    
22. It will be contrary to good sense and logic to allow the defendant to return to the house pending the hearing of the substantive hearing. The risk of further confrontations is too high. The balance of convenience justified the Registrar to issue the interim injunction to avoid further confrontations and to allow for cooling off, reduce tension and perhaps give the parties and their other siblings the opportunity to consult, and explore ways to resolve the conflict.
    
23. Although the defendant has prayed the court to allow him and his daughters to return to the family home, he has completely ignored to offer solution to resolve or avoid further conflict.
    
24. For reasons of prudence it is considered wise to preserve the status quo.
    

Results

(i) The application to discharge the interim injunction is dismissed.
(ii) No order as to costs.
(iii) The matter to take its normal course.

Dated this 12^th day of July 2019

__________________
Judge R. Vaai