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Gursamy v Native Land Trust Board [2009] FJHC 239; HBC211.2000L (28 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 211 of 2000L

BETWEEN:

GURSAMY,
f/n of Gurappa of Wailailai, Ba, Fiji, Cultivator
Plaintiff

AND:

NATIVE LAND TRUST BOARD,
a corporate body duly incorporated under the
Native Land Trust Act Cap. 13 of the Laws of Fiji
1st Defendant

AND:

GANGAMMA
f/n Narayan of Wailailai, Ba, Fiji, engaged in Domestic Duties
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Ms M. Prasad for the Plaintiff
Mr. Tuifagalele for the 1st Defendant
Dr. S. Khan for the 2nd Defendant

Solicitors: Mishra Prakash & Associates for the Plaintiff
NLTB Legal Department Solicitors for the 1st Defendant
Messrs Sahu Khan & Sahu Khan for the 2nd Defendant

Date of Hearing: Judgment on the papers
Date of Judgment: 28 October 2009

INTRODUCTION

[1] This is an application for interim injunction by the Plaintiff, Gursamy, to restrain his neighbour, the Defendants, from interfering with the quiet enjoyment of his land until final determination of the dispute between them.

BACKGROUND

[2] The land in dispute is native land in Ba, NL 10184, consisting of about 2,824 square metres. The land was first registered in the name of Gurappa. When Gurappa died, one Latchmi became his executrix. Latchmi entered into a sale and purchase agreement with one Chindora on 5 February 1972 (the "Agreement"). NLTB gave its consent for the Agreement on 12 April 1972. Chindora is now deceased. He was the husband of the First Defendant, Gangamma, and the father of the Second Defendant, Rakesh.

[3] Gurappa’s sons, Gursamy and Bal Krishna took over the administration of their father’s estate and eventually became registered as the administrators of his estate on 21 February 1989. Gursamy is now the only surviving registered proprietor and administrator of his father’s land.

[4] In 1989, Gursamy and Bal Krishna tried to evict Chindora and failed in this Court. They then brought another action in the Magistrates Court at Ba. That action was settled by way of consent order on 25 January 1995 (the "Consent Order") which gave Chindora the right to remain on the land subject to the terms of the Agreement and other conditions.

[5] Gursamy was not happy with Gangamma and her son Rakesh as neighbours and filed these proceedings on 27 June 2000. Gursamy claimed that his neighbours were occupying about 1/8 of an acre of the land and were a constant nuisance and annoyance and were trespassing onto his part of the land. A Defence and Counter-claim was filed on 26 July 2000 and the Reply and Answer was filed on 20 September 2000.

[6] On 8 June 2004, solicitors for Gangamma and Rakesh filed a Motion to restrain Gursamy from disturbing their quiet enjoyment of their part of the land. Gangamma filed an affidavit in support in which he said that Gursamy and his son were creating unnecessary problems for him and obstructing access to and the use of his house and compound and interfering with the running of his business. On 5 August 2004, a consent order was entered in which Gursamy and his son were restrained from obstructing access to and disturbing the quiet enjoyment of her land, until final determination of the action.

[7] The action lay dormant and in 2007 this Court issued a notice under Order 25 rule 9 of the High Court Rules for Gursamy to show cause why his action should not be struck out for want of prosecution. The matter was called before the Master on 8 November 2007 and the Master ordered that this action be consolidated with another action in this Court, HBC 6 of 2007.

[8] Civil Action HBC 6 of 2007 was filed on 11 January 2007 by Gursamy against Gangamma except this time he joined the Native land Trust Board ("NLTB") as first defendant. I will return to this action in a minute.

[9] For some unknown reason, despite the Master’s order that this action be consolidated with HBC 6 of 2007, Gursamy filed a Motion in this action on 30 July 2009 for injunctions restraining Gangamma and her son from bulldozing the land and cutting down his trees and from threatening him and interfering with his quiet enjoyment of his part of the land. This is the application the subject of this Judgment.

CIVIL ACTION HBC 6 OF 2007

[10] I now return to HBC 6 of 2007. In that action Gursamy is the Plaintiff and NLTB is the First Defendant and Gangamma is the Second Defendant. The Writ was filed on 11 January 2007. The Statement of Claim Gursamy claims that the NLTB was in breach of the terms of NL 10184 and interfering with his quiet enjoyment of the land by giving a lease of 1470 square metres of the land to Gangamma in NL 27739 and having it registered on 15 December 2005. He further claims that Gangamma fraudulently and in collusion with the NLTB obtained lease 27739 without his consent. Gangamma’s defence to the action was that the lease was issued pursuant to the terms of the Consent Order of 25 January 1995. The NLTB defence is on the same basis and further pleads that two separate leases were to be issued to the parties, Lot 1 to Gangamma and Lot 2 to Gursamy.

[11] HBC 6 of 2007 too has struggled through this Court and is now going through the pre-trial conference stages. It is now before the Master for mention on 30 October 2009 to see if the PTC Minutes have been sorted out.

THE CURRENT APPLICATION

[12] The application was called on 21 September 2009 and with Counsels’ agreement, I gave directions on the filing of affidavits and submissions and for me to deliver judgment on notice.

[13] The application is supported by Gursamy’s affidavit filed on 30 July 2009 and a further affidavit in response on 21 September 2009. Gangamma filed an affidavit in reply on 31 August 2009. Counsels filed submissions and I acknowledge their efforts but I think I do not need to consider them because of the facts of this case.

[14] It is not possible for me to decide on the affidavit material which of the parties is more culpable than the other. Having considered the history of this matter and the allegations and counter allegations of interference with quiet enjoyment, trespass and obstruction of access I think both parties are a danger to each other and the proper order is that both of them should be restrained until final determination of both this action and HBC 6 of 2007 and each party to pay their own costs.

ORDERS

[15] The Orders are therefore as follows:

1. The Plaintiff and the Defendants, their servants and agents are restrained by injunction from interfering with the others quiet enjoyment, access to and use of their part of the land until final determination of this action consolidated with HBC 6 of 2007.

2. Each party to pay their own costs.

3. This action is adjourned to the Master for mention on 30 October 2009 at 9.00am and consolidation with HBC 6 of 2007.

Sosefo Inoke
Judge