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Suva City Council v Khan [2003] FJHC 12; Hbc0064j.2003s (18 June 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 64 OF 2003S

Between:

SUVA CITY COUNCIL
Plaintiff

and

MOHAMMED SAFAR ALI KHAN
Defendant

Ms. T. Waqanika for the Plaintiff
Ms. M. Mua for the Defendant

JUDGMENT

In these proceedings the Plaintiff seeks two declarations and two orders.

The declarations sought are as follows:

“1. .. That the Defendant haulier light business which is categorised as a general industry business or heavy industry business cannot be allowed on certificate title number 10316, at 11 Burton Place Suva which is zoned “residential B”

2. .. That the Defendant is operating its business without a business licence and cannot operate its business in the municipality of Suva.”
   

In his affidavit in answer and in particular in paragraphs 6 (b), (ii), (iv), (vii) the Defendant admits operating a trucking business. Ms. Mua did not dispute that such a business cannot be operated from a residential address.

In paragraphs 23 and 25 of his affidavit the Defendant admitted operating his business without a business licence.

Ms. Mua suggested that the issue before the Court was whether or not the Defendant was operating his business from a residential address namely 11 Burton Place Suva. With respect, that is not the case. The two declarations do not include a declaration that in fact the Defendant is operating his business from 11 Burton Place.

In view of the admissions made by the Defendant and the concessions realistically offered by Ms. Mua the Plaintiff is clearly entitled to the two declarations sought.

The remaining matters are the orders.

In my view the terms of the order set out in paragraph 3 of the Originating Summons is too wide. I can see no general objection to keeping tools, equipment and machinery at a residential address but the storage and use of heavy equipment likely to cause disturbance to the neighbours is clearly objectionable.

In view of the Defendant’s admissions, Ms. Mua was unable to oppose the granting of an amended order namely:

“that the Defendant, whether acting by himself, his servants or agents be restrain forthwith from keeping heavy vehicles, heavy equipment or heavy machinery at 11 Burton Place Suva.”

I so order.

Ms. Waqanika asked for costs. She sought $300. Ms. Mua suggested $200. Having succeeded in its action the Plaintiff is entitled to recover its costs. I assess these at $200 payable within 21 days.

M.D. Scott
Judge

18 June 2003.