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Fiji Development Bank v Taira [2010] FJHC 309; Civil Action 110.2010 (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 110 OF 2010

BETWEEN:

FIJI DEVELOPMENT BANK
of 360 Victoria Parade, Suva
Plaintiff

AND:

ILAISA TAIRA
of Lot 4, Sakoca Subdivision, Lakha Singh
Road, Tacirua, Foreman.
Defendant

Before: Master Anare Tuilevuka

Counsels: Nands Law for the Plaintiff

Date of Hearing: No Appearance
Date of Ruling: 13th August, 2010

RULING
(FORMAL PROOF)

BACKGROUND

[1]. This is a ruling after formal proof of the plaintiff's originating summons dated 13th April 2010 filed by Nand's Law. The originating summons seeks the following relief:

(i) delivery by the defendant and or his family to the plaintiff of vacant possession of all that property comprised and described in Native Lease No. 27677 being Lot 4 SO5032 Sakoca Subdivision on NLTB No: 50034560 having an area of more or less 635 sqm together with all the improvements thereon situated in the District/Tikina of Naitasiri and Province of Naitasiri/Island of Viti Levu ("property").

(ii) an injunction restraining the defendant, his servants and/or agents from interfering with the improvements on the said property in any way so as to deplete its value;

(iii) such further or other relief as seems just and equitable to this Honorable Court;

(iv) costs of this action

[2]. The summons is filed pursuant to Order 88 of the High Court Rules 1988 and is supported by the affidavit sworn on 12th April 2010 of Salote Tavainavesi, Manager Legal of Fiji Development Bank. She deposes as follows.

MORTGAGE DOCUMENT

[3]. The defendant is the registered lessee of the property. The FDB holds a mortgage over the said property (mortgage registration No. 578316 dated 19th October 2005) as security for a loan debt that the defendant owes to FDB. A certified true copy of the said mortgage is exhibited to Tavainavesi's affidavit.

[4]. Erected on the property is a substantial wood and iron residence which is presently occupied by the defendant and his family.

HOW HAS FDB's RIGHT TO POSSESSION ARISEN?

[6]. Tavainavesi's affidavit sets out the details of the loan advances by FDB to the defendant including the total amount of the money advanced by FDB to the defendant, the monthly installment rate plus interest and insurance, the arrears and the amount owing to the bank as at 30th November 2009 with interest accruing at the rate of 10.25% per annum.

[7]. Tavainavesi further deposes that the defendant had defaulted in his payments.

That the Mortgage No. 578316 contains the following provisions:

6. That upon the power of sale becoming exercisable it shall be lawful for the Mortgagee at any time and from time to time without giving the Mortgagor any notice to do all or any of the following

a. To enter upon and take possession and/or enter into receipt of the rents and profits of all or any of the said land and to manage the same and to pull down rebuild alter and add to any then existing building or improvements thereon and to do all such things the Mortgagee may deem necessary to manage and efficiently carry on the said land or to obtain income there from and for any such purpose to employ managers workmen and others and otherwise to act in all respects as the Mortgagee in its absolute discretion may thin fit.

[8]. On the 2nd of October 2009, FDB issued and served a Demand under the mortgage on the defendant. FDB then proceeded to exercise its powers under the said mortgage and called for tenders for the sale of the said property.

[9]. On or about 25th February 2010, FDB entered into a sale and purchase agreement for the sale of the property for the sum of $28,550.00.

[10]. However, FDB has been unable to conclude the settlement as the successful tenderer requires vacant possession of the said property prior to or on the date of settlement.

[11]. On or about 2nd March 2010, FDB's Solicitors issued and served an Eviction Notice to the defendant requiring him to deliver vacant possession of the said property which the defendant has failed to do.

[12]. Tavainavesi deposes that the defendant's refusal to give vacant possession of the said property is interfering and prejudicing the Bank's rights as mortgagee. Further, it is a clear prejudice to the bank in allowing the interest to continue accumulating on its outstanding debt thereby reducing the value of its security.

SERVICE OF ORIGINATING SUMMONS

[13]. Upon review of this file, I discovered that there is still some defect in the service of the originating summons process.

[14]. The originating summons in this case was filed on 13th April 2010. On the same day, a Notice of Appointment to hear originating Summons was also issued by the Registry appointing 15th April 2010 as the returnable date.

[15]. That Notice however, according to an Affidavit of Service of one Semisi Lasika filed on 23rd April 2010, was only served on 20th of April 2010 (i.e. five days after the returnable date on the Notice).

[16]. On 6th of May 2010, I directed that the Notice be re-served on the defendant and then adjourned the case to 20th of May 2010. However, despite that direction, the notice was still not served properly. I say that because a second affidavit of service of Vunisa filed on 13th May 2010 deposed that he did serve a true copy of the Notice to the defendant on 10th of May 2010. However, the copy of the Notice he served (which is annexed to his affidavit) still had the returnable date as 07th May 2010.

[17]. When the matter was then called on 20th May 2010, I did not notice that defect and as a result, adjourned the case for formal proof to 04th June 2010 on Mr. Nand's application.

[18]. However, I was to note that defect on 4th of June 2010 and directed that the Registry re date the Notice to 18th June 2010 and that the Notice be reserved on the defendant. But there was to be no Court sitting on 18th June 2010 as it coincided with the Judicial Conference in Korolevu.

[19]. Meanwhile, a third affidavit of service of Jeremaia Vunisa was filed on 17th June 2010 deposing that he did serve a copy of the Notice on the defendant on 12th June 2010. I note that the returnable date on the Notice was 18th of June being the returnable date. That means that if the defendant did turn up in Court on that day, he would only have found an empty Court room.

[20]. When the case was called before me on 16th July 2010, Mr. Nand sought a formal proof date and I granted 30th July 2010 as the formal proof date without realizing the defect in service and also in proceeding to formal proof. I did proceed to hear Mr. Nand though on 30th July 2010 and it was only when I sat down to write this ruling that I realized about the defect.

[21]. As far as I gather from the material in the affidavit before me, Mr. Nand has complied with all the rules except service.

[22]. To regularize the defect, I make the following directions:

DIRECTIONS

[i] this case is adjourned to the 26th of August at 9.30 a.m.

[ii] the Registry is to re-date the Notice of appointment to Hear Originating Summons to the above date and time i.e. 26th August 2010 at 9.30 a.m.

[iii] the plaintiff is to serve the re-dated Notice to on the defendant by 19th of August 2010.

[iv] a copy of this Ruling is also to be served on the defendant by 19th of August 2010.

[v] if the defendant does not appear in Court on 26th August 2010, I will simply then grant order in terms of the originating summons.

Anare Tuilevuka
Master

At Suva
Dated 13th of August 2010.