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Chute v Wati [2010] FJHC 95; HBC49.2008L (24 March 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 49 of 2008L

BETWEEN:

ALICK PATRICK CHUTE, VERA CHUTE LAVETI &
LUISA O’CONNOR WAQABACA
trading as "TRUE VALUE HOMES & INVESTMENTS"
Plaintiffs

AND:

KAMLA WATI f/n Moti Lal
Defendant

Judgment of: Inoke J.

Counsel Appearing: Ms Natasha Khan for the Plaintiffs
Defendant in Person

Solicitors: Natasha Khan & Associates for the Plaintiffs
Defendant in Person

Date of Hearing: 23 March 2010
Date of Judgment: 24 March 2010

FINAL JUDGMENT

INTRODUCTION

[1] This is the Plaintiffs’ application for me to vacate a previous order that I made on 21 January 2010. My Order gave the Defendant, Ms Wati, further time to remain on a property that is being occupied by her.

BACKGROUND

[2] The property in question is a Housing Authority sublease previously owned by Ms Wati’s late father. She claims that she had been living there since birth and claims an interest in the property. There was a series of intervening events but for the purposes of this application they are not relevant. The property was subsequently transferred to the Plaintiffs who became the registered proprietor on 3 October 2006.

[3] Ms Wati was served with an eviction notice on 29 November 2007 but still remains on the property. On 25 March 2008, the Plaintiffs brought this action for vacant possession by Originating Summons. The application eventually came to be heard by Master Tuilevuka on 30 October 2010 who made the following orders:

1. That the Defendant do give up immediate vacant possession of all that piece of property occupied by her upon Housing Authority Sub-Lease No. 173633 being Lot 10 on deposited plan No. 4203 within 2 (two) months of the date of sealing of this Order.

[4] The Master’s Order was sealed on 18 November 2009 and issued by the Registry on 19 November 2009. The two months period limited by the Master would have therefore expired on 20 January 2010 at the latest and Ms Wati should have vacated the property by then.

[5] However, that did not happen. In a related action in this Court, HBC 309 of 2008, Ms Wati has sued the Plaintiffs in this action and her brother claiming certain relief for what she alleges to be a fraudulent transfer of the property to the Plaintiffs. This action is still alive and remains unresolved. It was transferred to me by the Master on 11 December 2009 for me to fix a hearing date. Because the two files are related, they both travelled together.

[6] When the matter was called on 11 December 2009 Ms Wati appeared in person but no one appeared for the Plaintiffs. She drew my attention to the eviction order in file HBC 49 of 2008 instead of the setting down for hearing of HBC 309 of 2008 and asked for more time to vacate the property. My file notes for that day records:

Master has given eviction order.

Order has been sealed.

Plaintiff acknowledges that the order has been served and she knows of the Judgment.

This Court has no jurisdiction to hear the Plaintiff.

I am sympathetic to the Defendant, Ms Wati, being unrepresented.

But she must seek assistance from a lawyer or someone to file her application for stay and/or appeal.

Mention 21 January 2010 at 9.30am for the Court to be appraised by Yashlaw on status.

[7] When the matter was called on 21 January 2010, Mr H A Shah appeared as a "friend of the Court" for Ms Wati and asked for more time for her to move out. There was no appearance for the Plaintiffs so I was not any the wiser than on 11 December 2009. I then granted the extension sought for Ms Wati for a further 3 months from 21 January 2010. This Order was sealed on 11 February 2010.

[8] The Plaintiffs now apply for me to vacate that Order by motion filed on 19 February 2010 supported by the affidavit of the third named Plaintiff. She says that they are being threatened by their bank to pay up arrears which they are not able to do because Ms Wati has been occupying their property and has deprived them of rental income by her not paying any rent and from others whom she is collecting rent from and not accounting to the Plaintiffs.

CONSIDERATION OF THE APPLICATION

[9] In In re Sadanand Sharma [2009] FJHC 212; HBM010.2009 (24 September 2009), I considered the law on whether this Court has jurisdiction to vary its own orders and I quote from it:

[10]... Order 45 r 5(2) provides:

"Where, notwithstanding Order 42 rule 3(1), or by reason of Order 42 rule 3(2), a judgment or order requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein."

[11] Order 42 rules 3(1) and 3(2) provide:

"(1) Subject to paragraph (2), a judgment or order which requires a person to do and act must specify the time after service of the judgment or order, or some other time, within which the act is to be done.

"(2) Where the act which any person is required by any judgment or order to do is to pay money to some other person, give possession of any land or deliver any goods, a time within which the acts is to be done need not be specified in the judgment or order by virtue of paragraph (1), but the foregoing provision shall not affect the power of the Court to specify such a time and to adjudge or order accordingly."

[12] ... Counsel for Equity Realtors, submitted that in the face of all these unresolved disputes it would not be wise to impose a time frame within which the Defendants are to complete the subdivision. He further submitted that the Plaintiff must bring a new action and such an action will be faced with the same defence. He submitted that I have no jurisdiction to interfere with the consent order. He referred me to paragraphs 555 to 562 of Halsbury’s Laws of England, vol 26, 4th edn as supporting his submissions.

[13] Paragraph 556 states: "As a general rule, except by way of appeal, no court, judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions."

[14] The general rule is cited in Thynne v Thynne [1955] 3 All E R 129, 142 by Hodson LJ, from the decision of Lindley LJ in Preston Banking Co v William Allsup & Sons [1895] 1 Ch at p 144:

"In my opinion, it is of the utmost importance, in order that there may be some finality in litigation, that when once the order has been completed it should not be liable to review by the judge who made it."

[15] In Thynne v Thynne [1955] 3 All E R 129, the parties were secretly married on 8 October 1926, and on 27 October 1927, they went through a second ceremony of marriage in the presence of their relations and friends. In a subsequent petition for divorce, the date of marriage was incorrectly stated as 27 October 1927 as well as the church in which the parties were married. The mistake was an honest mistake which the petitioner’s lawyers were not aware of. The decree nisi and decree absolute bore the same mistakes. The petitioner applied to have the marriage date and place corrected in the petition and the decrees nisi and absolute. The Judge at first instance refused the amendment taking the view that the decree absolute was a nullity. That left the parties in a state of uncertainty. If it was assumed that the decree was a nullity and a new petition was filed it would be met by the rules which forbade the filing of a fresh petition whilst another petition on the same matter remained unresolved. And if it was sought to remove the decree, the answer might well have been that it was a perfectly good decree or that it was not void. On appeal, the English Court of Appeal allowed the correction to be made. Morris LJ at page 145 explained the principles in this way:

"In addition to powers resulting from rules of court, it is clear that there are necessary powers which are inherent in the jurisdiction of the court. It would, I think, be undesirable to limit the scope of those powers as a result of any words which describe them. I respectfully agree with what was indicated by Evershed, LJ, in Meier v Meier [1948] P at p 95:

‘I prefer not to attempt a definition of the extent of the court’s inherent jurisdiction to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so.’

...If the meaning and intention of the court is not expressed in its judgment or order then there may be variation. In Lawrie v Lees, Lord Penzance said (7 App Cas at p 34):

‘I cannot doubt that under the original powers of the court, quite independent of any order that is made under the Judicature Act, every court has the power to vary its own orders which are drawn up mechanically in the registry or in the office of the court – to vary them in such a way as to carry out its own meaning and, where language has been used which is doubtful, to make it plain. I think that power is inherent in every court.’

To the same effect were the judgments in Re Swire [1885] UKLawRpCh 197; (1885) 30 Ch D 239. Lindley LJ said at p 246:

‘... if an order as passed and entered does not express the real order of the court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right.... It appears to me, therefore, that, if it is once made out that the order, whether passed and entered or not, does not express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.’

...

If the court, in the circumstances I have postulated, is powerless to act, it would seem as though the court was enslaved by its own decree. Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been made effective, then the court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply. But if a case arises where in the interests of accuracy it seems desirable to amend some part of a judgment, other than its operative and substantive part, it would seem to be regrettable if the inherent powers of the court were limited or confined. The powers extend in my judgment to enable a court so to amend a judgment that it carries out the intention of the court. Particular words and particular forms (unless specified by the legislature) are the servants of the law and not its master."

[10] I therefore reach the same conclusion that I did in In re Sadanand Sharma (supra) that I had jurisdiction to make the orders that I made on 21 January 2010 despite the reservations that I expressed on 11 December 2009. Master Tuilevuka had given Ms Wati two months to vacate and I do not think that it was intended to be final and there was room for me to grant a further extension. I think the "purposes of justice" require that it be done. However, it cannot go on forever.

[11] I am sympathetic to Ms Wati but she must move out. She has up to now been given 4 months to move out and it seems that she has not made any attempts at all to do so. This Court has been very lenient and compassionate to her but she should not be taking advantage of it as has been done in recent times. The Plaintiffs are now being threatened with legal action by their mortgagee. I therefore vary my Order of 21 January 2010 to the extent that I will reduce the three months that I gave Ms Wati. I will give her 7 more days.

COSTS

[12] I make no order as to costs.

ORDERS

[13] I therefore make the following Orders:

1. The Orders that I made on 21 January 2010 and sealed on 11 February 2010 are vacated.

2. The Defendant shall within 7 days from today give immediate vacant possession of the property in Housing Authority Sublease No 173633 being lot 10 on DP 4203 in the Province of Ba to the Plaintiffs.

3. There is no order as to costs.

Sosefo Inoke
Judge