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Yunus v Yogesh [2016] FJHC 1095; HBC24.2015 (2 December 2016)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

Civil Action No.HBC24 of 2015

BETWEEN : JEMMY MOHAMMED YUNUS

PLAINTIFF

A N D : YOGESH AND RUKSHANA

DEFENDANTS

BEFORE : His Lordship Hon. Justice Kamal Kumar

COUNSELS : Mr. A. Kohli for the Plaintiff

Mr. S. Sharma for the Defendants

DATE OF HEARING: 9 and 10 August 2016

DATE OF JUDGMENT: 2 December 2016

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JUDGMENT

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1. On 17 August 2015, Plaintiff filed Writ of Summons with Statement of Claim seeking vacant possession of property comprised and described in Certificate of Titles No. 27587“A”, special, general and aggravated damages with indemnity costs.

2. On 18 September 2015, and 23 October 2015, Defendants filed Acknowledgement of Service and Statement of Defence and Counter-Claim respectively.

3. On 23 October 2015, Plaintiff filed Reply to Defence and Defence to Counter- Claim.

4. On 6 November 2015, Plaintiff filed Summons for Directions and on 25 November 2015, being returnable date of the Summons, Order in Terms of the Summons was made by Master of the High Court.

5. On 8 December 2015, Plaintiff filed Order on Summons for Directions.

6. This action was called on 18 January 2016, before the Master when counsel for the parties sought further seven (7) days time to file Affidavit Verifying List of Documents and adjourned to 27 January 2016, for further directions.

7. Plaintiff and Defendants filed their Affidavit Verifying List of Documents on 20 and 27 January 2016, respectively.

8. On 27 January 2016, parties were directed to convene Pre-Trial Conference (“PTC”) within fourteen (14) days and file minutes of PTC within the same period. This action was adjourned to 2 February 2016 for further directions.

9. On 2 February 2016, parties were directed to exchange documents within seven (7) days and to convene PTC and file PTC Minuteswithin fourteen (14) days from thereafter and this action was adjourned to 24 February 2016, for further directions.

10. On 24 February 2016, parties were granted further time to comply with 2 February 2016 directionsand this action was adjourned to 21 March 2016 for further directions.

11. On 21 March 2016, parties were directed to file PTC Minutes by close of business on 24 March 2016, or attend before Master for PTC on 29 March 2016 at 9.00am.

12. On 29 March 2016, counsel for the parties informed Court that PTC could be completed on that morning and in view of that, this action was adjourned to 31 March 2016.

13. On 31 March 2016, Plaintiff’s counsel informed Court that PTC Minutes is ready for filing when the Court directed Plaintiff to filed PTC minutes by 12.00pm on that day and to file Order 34 Summons and Copy Pleadings by 11 April 2016, and adjourned this action to 14 April 2016.

14. This action was re-called on 31 March 2016, when by consent, Defendants were granted leave to file Supplementary Affidavit Verifying List of Documents by 5 April 2016.

15. On 31 March 2016, Minutes of PTC was filed.

16. On 7 April 2016, Defendants filed Supplementary Affidavit Verifying List of Documents and Plaintiff filed Copy Pleadings and Order 34 Summons.

17. On 14 April 2016, being returnable date of Order 34 Summons, this action was entered for trial and adjourned to 9 and 10 April 2016 at 9.30am, for trial.

18. Trial completed on 10 August 2016, and on 11 August 2016, Counsel for the parties made submissions, when this action was adjourned for Judgment on Notice.

Agreed Facts

19. The Plaintiff is the lawful son of Nasiru Din formerly of Bua but now residing in Queensland, Australia.

20. Nasiru Din was the registered proprietor of all that land known as Lot 1 on Deposited Plan No. 6000 “NAWI” District of Bua Island of Vanua Levu containing fourteen hectares and six thousand two hundred and seventy four square metres comprised and described in “Certificate of Title No. 27587”A” (hereinafter referred to as “the property”).

21. On or about 27 June 2005, the said Nasiru Din, in consideration of natural love and affection transferred all his estate, interest and title in the property to his lawful son, the Plaintiff.

22. When the property was transferred to the Plaintiff, Defendants werenot in occupation of the property.

Documentary Evidence

23. Plaintiff tendered following documents as Exhibits:-

Exhibit No. Document

P1 Certified True Copy of Certificate of Title No. 27587”A”

P2 Copy of Medical Certificate dated 22 April 2016 of FALI Medical in respect of Nasiru Din.

Issues for Determination.

24. The issues that needs to be determined are:-

(i) Whether Plaintiff is entitled to vacant possession of the property;

(ii) Whether Defendants are liable to pay special, general and aggravated damages to the Plaintiff;

(iii) Whether Defendants are entitled to transfer of one quarter acre of land subject to the property;

(iv) Whether Plaintiff is liable to pay special, general and punitive damages to the Defendants.

Plaintiff’s Case

25. Plaintiff gave evidence and called his mother Zahauran Mohammed of Woodridge, Queensland, Australia, Domestic Duties (PW1) as his witness.

26. Plaintiff during his evidence in chief gave evidence that:-

(i) He resides in United States of America and his father Nasiru Din, who is seventy five (75) years old resides in Australia.

(ii) He left Fiji for USA in 1994, and his parents were at that time living in Bua on the property.

(iii) In 2005, he came to Fiji for a month and stayed with his parents on the property when the property was transferred to him.

(iv) In 2005 the property consisted of two bedroom house and rest of the building was under construction.

(v) He helped his father put up fence and was constructing verandah and kitchen when he had to leave for USA.

(vi) Toilet and bathroom on the property was constructed outside but his father was going to construct another toilet and bathroom.

(vii) The property had coconut palm and pine trees and his father continued planting with labours.

(viii) When he left in 2005, no one else was living on the property except his parents.

(ix) In 2005 he did not meet the Defendants and did not know them.

(x) Next time he came to Fiji was in 2012, when he came for two (2) days to collect his Certificate of Titles from his Solicitors Office in Suva and left for Australia to visit his parents before leaving for USA.

(xi) After that he came to Fiji in February 2014, when he was informed by his parents that China Railway Company wanted to buy rocks from the property for road construction.

(xii) In February 2014, he went to the property with Alan Young of China Railway Company and his driver.

(xiii) When he went to the property he saw about ten (10) people staying on the property and when he contacted them, he was told that they are Defendants tenants and the property belongs to Defendants.

(xiv) He then went around and checked the property with Alan Young and granted a three year lease to China Railway Company to take out rocks from the property to construct road.

(xv) He called his parents and asked his mother to come to Fiji.

(xvi) He also reported the matter to Nabouwalu Police Station but was told to go to Court.

27. DuringCross-Examination Plaintiff:-

(i) Stated that from 2005, he did not visit the property until 2014 and he did not check who is residing on the property because his parents were looking after the property and he trusted them.

(ii) Stated that when his mother came to Fiji in 2014, she told him that Defendants were caretakers of the property.

(iii) When asked if he asked his parents as to who was occupying the property from 2005 to 2014, he stated that he did not have to.

(vi) Stated that whenhe left in 2005, there was a two (2) bedroom house outside toilet/bathroom andhis fatherwasstillconstructing verandah and kitchen.

(vii) Stated that when he went on the property in 2014, there were ten (10) people on the property and he was scared.

(viii) Agreed that in 2014, he was not threatened by anyone but their behaviour was aggressive.

(ix) When askedifhis Attorney told him that Defendants carried out substantial development on the property, he stated that developments on the property were carried out by his father.

(x) He stated that he asked his father to come to give evidence but his father had medical issues as per Exhibit P2 and as such his mother came to give evidence.

(xi) Denied that his father told Defendants and they would get quarter (1/4) acre of the property if property was transferred.

(xii) Agreed that from 2005 until 2014, he did not give any written or verbal notice for Defendants to vacate the property.

(xiii) Stated that he was not aware that someone was living on theproperty until 2014, and his parents must have arranged and that is why he called his mother to give evidence.

(xiv) Stated that it could be correct that Defendants became aware that he was the owner when he instituted proceedings because no one know he was the owner.

28. In re-examination Plaintiff stated that he came to know from his mother that Defendants were brought on the property as caretaker and he did give any consent or approved for any development on the property.

29. PW1, Plaintiff’s mother in her evidence in chief gave evidence that:-

(i) She was born in Fiji, and did not attend school, understands little English and is married to Nasiru Din;

(ii) She resided in Fiji at Nawi, Bua until 2000 when she left Fiji with her husband and settled in Australia;

(iii) In 2005, they planted pinetrees and coconut palm on the property and extended the two bedroom house on the property by adding shop, toilet/bathroom inside the house and two (2) kitchen;

(iv) Before she left Fiji the building on the property consisted of two (2) bedroom, a shop, two (2) kitchen, one (1) bulk, toilet and bathroom which were in one building;

(v) The property was transferred to his son before they left for Australia in 2005.

(vi) In 2005, Plaintiff also came to Fiji and stayed on the property with them and assisted in construction of the building.

(vii) In 2005, Plaintiff left Fiji towards end of June.

(viii) When Plaintiff was in Fiji, only Plaintiff, herself and her husband stayed on the property.

(ix) After Plaintiff left, they stayed on the property for two months and left for Australia towards end of August.

(x) She knew Secondnamed Defendant before 2005, as she was married to her nephew, by the name of Sunny and after two months of the marriage she started staying with Firstnamed Defendant.

(xi) Defendants came on the property with Secondnamed Defendant’s friend, who is a school teacher.

(xii) Defendants wanted to stay on the property and at that time Defendants were running a second-hand shop in Labasa and were poor and wanted to run the shop.

(xiii) Secondnamed Defendant’s teacher friend requested her to let Defendants stay on the property.

(xiv) They agreed to let Defendants stay on the property and look after the property and run the shop.

(xv) Her husband was present when the arrangement was made and they did not make any promise to give quarter (1/4) acre of land to Defendants.

(xvi) Denied they gave first right of refusal to Defendants if they decided to sell the property and stated that how could they do so when property belonged to their son.

(xvii) When she first left Fiji she locked her furniture, bed, louvers frames and things in the room.

(xix) After 2005,she came back to Fiji in 2010 or 2011, and when she visited the property she saw louver blades, frames and clothes were missing and the lock to the room she locked had been broken.

(xx) She could not do anything but asked Secondnamed Defendant who said that her things are stored in the bulk.

(xxi) In 2010/2011 she stayed in Fiji for two months at her sister’s place in Wailevu, Labasa.

(xxii) Next she came to Fiji was in 2014, when Plaintiff asked her to come and look at the conditions of the house and pine trees.

(xxiii) When she came in 2014, she saw Defendants built another house and gave it on rent to truck drivers and she was told by truck drivers that Secondnamed Defendant is the owner of the property and she gave the house on rent and that is when she toldthe truck drivers that Secondnamed Defendant is not the owner and that Plaintiff and them areowners.

(xxiv) After she spoke to truck drivers she went to Nabouwalu, and got two (2) ArmyOfficers because Plaintiff asked her to get them as Defendants cut pine trees, built houses in Lekutu and stole things.

(xxv) Army Officers gave them two (2) weeks to leave the property but they were still there after two (2) weeks when she left Fiji.

(xxvi) Her husband is very sick and cannot travel and he did not come back to Fiji after his trip in 2005.

(xxvii) Whenit wasput toher that Defendantsclaim that they spent $20,000 her response was “why” and “how” and stated that she and her husband built the house, planted coconut palm and pine, she did not get any rent or money and Defendantssold pine worth $60,000.00.

30. During cross-examination PW1:-

(i) Stated that she does not know when Defendants came on to the property because they gave the keys to Defendants and left Fiji in August 2005.

(ii) Stated that teacher said to her that Defendants wanted to come and stayon the property, and she brought Defendants to her place and told her that Secondnamed Defendant is a poor lady and going here and there.

(iii) In 2010/2011 she found out that her house and shop is full and Defendant were selling crabs and fish.

(iv) Stated when she saw Defendants selling crabs and fish she was not upset as they were earning their living properly and there was no damage to the property.

(v) In 2010/2011 she asked Secondnamed Defendant about broken lock and she was told that Defendants daughter wanted to use the room.

(vi) She did not tell Plaintiff about broken lock and Defendants running the shop.

(vii) Denied that they said to Defendants that her husband is owner of the property and that Defendants never asked and they never told them so to as to who is the owner.

31. Both Defendants gave evidence with Secondnamed Defendant giving evidence first.

32. Secondnamed Defendant in her evidence in chief gave evidence that:

(i) She has been residing on the property at Nawi, Bua from August 2005;

(ii) She first went on the property with SecondnamedDefendant and her friend who is a school teacher and she introduced her to Mr and Mrs Nasiru Din;

(iii) They talked to Mr and Mrs Nasiru Dinwho approached Defendants to look after their property.

(iv) Nasiru Dins’ wife recognized her as she knew her mother and asked about her family.

(v) They told her that they are staying overseas and asked them to come and look after their belongings and Nasiru Din said that if he sold the property he will give them a place to stay.

(vi) Before she moved on the property she was residing at Namara, Labasa.

(viii) When they went to the property, Nasiru Din and his wife were not there as they gave the keys and left for Australia in two (2) days’ time.

(ix) NasiruDin never said anything and did not say the property was not his and no conversation took place about ownership of the property.

(x) Until 2012 Nasiru Din would call her one or two times a month and check on the property.

(xi) Now she knows that Plaintiff is the owner of the property.

(xii) Plaintiff first came on the property in 2013, and introduced himself as a Customes Officer and said that he is selling property to Australian Company which will build a juice factory and her husband and they will get job in the juice factory.

(xiii) In 2014, Plaintiff and his mother came on the property with Army Officers and asked her and others to vacate the property when she told them she only knows Nasiru Din as rightful owner.

(xiv) Denied that Plaintiff’s mother’s things were missing and that she told her that items were in the bulk.

(xv) Since 2005, Defendants built a new toilet/bathroom, did maintenance to leaking roof, did maintenance work after cyclone damage as they were staying on the property and Plaintiff or NasiruDin did not give any money for renovations.

(xvi) She did not construct any shop at Lekutu but is renting a shop there.

(xvii) Defendants did not extract any pine trees and the pine trees fell during cyclone.

(xviii) When asked if she asked Nasiru Din to prepare any document she said when Nasiru Din came in 2006, she asked him to draft documents for her to stay on the property but he said that he is the owner and she can stay there.

(xix) Denied that ten (10) or more people were staying on the property and stated that only her, her mother, her husband and children are staying on the property.

(xx) She did not keep any receipts for the renovation works to the property as she did not consider it important and she did not own any other piece of land.

(xxi) Fence and pine trees were removed by sawmilling contractor with Plaintiff and China Railways authority.

(xxii) After she found that Plaintiff is owner of the property she called Nasiru Din who said few words on phone and disconnected the line.

(xxiii) In 2014, Plaintiff told her that she is getting seven (7) days’ notice to vacate the property when she tried to talk to Plaintiff on phone but he did not listen.

(xxiv) She is asking for order for transfer of quarter acre of the property to her, costs and $20,000.00 as expenses for being on the property for ten (10) years, doing things to house, looking after pine trees and clearing the jungle.

(xxv) In 2006, Nasiru Din and wife stayed with them for a month and thereafter only wife used to come and spend night with her and she did tell her that Plaintiff is owner of the property.

(xxvi) When asked if she told drivers that she was owner of the property she stated that she never mentioned that.

(xxvii) When asked if she constructed small house for rent she stated “no” and stated that there were two bulks, one for coconut and the other for other things.

(xxviii) Relationship between her and NasiruDin and his wife were very good prior to this proceedings.

(xxix) She instructed registered valuer to value the property.

33. During cross-examination Secondnamed Defendant.

(i) Confirmed that she moved on the property in 2005, and she was first taken there by her school teacher friend.
(ii) Stated that prior to that she was renting at Namara, Labasa at $100.00 per month and operating second-hand clothes business from Kalayanji Pala Building, Nanuku Street, Labasa.
(iii) Stated that she moved onto the property one (1) week after meeting Nasiru Din and closed her shop in Labasa because business was slow.
(iv) Stated that she has been living with FirstnamedDefendant for one (1) year prior to moving onto the property.
(v) Stated that after Firstnamed Defendant and her resigned from Morris Hedstrom they moved to Suva for few months and afterwards came to Labasa to visit parents and started business for six (6) months before moving on the property.
(vi) When it was put to her that she decided to leave Labasa which was close to hospital, school and shop was near main street she stated that Nasiru Din wanted her to be caretaker.
(vii) Denied that she was in threat from her ex-husband’s family.
(viii) Denied she was struggling and stated that she was going on with their lives.
(ix) Agreed that Nasiru Din asked her to stay on property and look after the property while they were away.
(x) Stated that they went on the property building consisting of two bedrooms and shop was constructed.
(xi) Stated that Nasiru Din asked them to stay on the property and did not ask for any money.
(xii) Stated that when they moved on the property, toilet and bathroom was outside and they built toilet and bathroom inside the building at a cost of about $4,000.00 to $5,000.00.
(xiii) Denied that toilet and bathroom was inside when they moved onto the property.
(xiv) She also constructed a bulk to keep the generator which was for her use and benefit.
(xv) Stated that the rental for shop in Labasa was $200 per month and by moving to Labasa she saved $300.00 per month in rental.
(xvi) Stated that other improvements she did was to kitchen and changed roofing iron as roof was leaking and building was not new.
(xvii) She does not have any pictures of her family and Nasiru Din and his wife being together in 2006.
(xviii) Stated that she carried out extension to the building after she was referred to the Valuation report which stated that building was over forty (40) years old.
(xix) Stated that she planted coconut palms.
(xx) Stated that in 2014, Plaintiff and his mother tried to get her off the property which was quite shocking to her.
(xxi) Stated that when in 2014, she was told that she will be vacated she did nothing but waited for the Summons.
(xxii) Stated that Police and Army officers told her that it is a civil matter and for her to see a lawyer; and it is then she saw Mr. Sharma who advised her to wait for the Summons.
(xxiii) Stated that she is occupying house block which is about one (1) acre.
(xxiv) Agreed that after she received the Summons she went to Agricultural Tribunal for tenancy over five (5) acres of land.
(xxv) Stated that they have cows and sheep but not in big quantity.
(xxvi) Agreed that she went and requested her teacher friend for a place at Nasiru Din’s property as teacher friend was familiar with Nasiru Din and his family.
(xxvii) Agreed that Nasiru Din fell sorry for her and allowed her to stay on the property, run her business and in return to look after the house while they were away.
(xxviii) Agreed that, that was the only arrangement between her and Nasiru Din and in return they will not ask for rent.
(xxix) Agreed that any development carried out by her was for her own convenience.
(xxx) Stated that she moved onto the property in 2005 and not 2004 as stated in the Statement of Defence.

34. In re-examination Secondnamed Defendant stated that:

(i) When she went on to the property with the teacher they talked normal and Nasiru Din asked her what she was doing when she told him that she was running a shop and it is then Nasiru Din said that he is looking for a caretaker for his house and canteen and asked her to come and look after the house and canteen as they were leaving Fiji.

(ii) She constructed toilet and bathroom between 2008 and 2009.

(iii) She did not file any action in Agricultural Tribunal after she received the notice.

(iv) After Plaintiff spoke to her on phone she called Nasiru Din and said that he should have told her before that he gave property to Plaintiff when Nasiru Din growled at her and called her thief and after that she did not contact Nasiru Din.

35. Firstnamed Defendant in his evidence in chief gave evidence that:-

(i) Since 2005 he has been residing on the property with Secondnamed Defendant.

(ii) When asked under what circumstance he is residing on the property he stated that Mr. Nasiru Din approached them while they were running a shop in Labasa.

(iii) Nasiru Din was introduced to him by his first cousin who is a teacher.

(iv) Lady teacher who is Secondnamed Defendant’s friend and is from Bua and very close to Nasiru Din and his family was told by Nasiru Din that he is looking for a caretaker for the property.

(v) The teacher then approached them to open a second hand shop and minimart in Bua.

(vi) After he was informed by the teacher, Mr. Nasiru Din and his wife came to his shop and they talked.

(vii) They went on Sunday to the property and conversation took place in presence ofNasiru Din, his wife, Defendants and lady teacher’s father. Nasiru Din told them that they will be flying off to Australia in two (2) days.

(viii) On Monday Nasiru Din came and gave keys to the property, and he agreed to be caretaker on condition that no one will interfere in their business and only Nasiru Din and his wife will deal with us.

(ix) In 2006, Nasiru Din and his wife came and stayed with them for a month.

(x) When asked if he and his wife discussed with them anything about the property, he stated that they talked regarding development of area and he asked consent for Agriculture side so that he could do some cattle and goat farming but Nasiru Din did not give the consent.
(xi) Nasiru Din told them that they can stay as long as they can and if they sell land and something happens to them, they will give them a piece of land.

(xii) When they went to reside on the property, washroom was located outside and they built it inside the house at a cost of around $5,000.00.

(xiii) They carried out renovations to the house and connected the building to make one building at a cost of about $14,000.00 to $15,000.00

(xiv) He was doing business from the property and not paying rent.

(xv) He did not meet Plaintiff when Plaintiff came on the property in 2014.

(xvi) He spoke to Nasiru Din but could not recall when was the last time.

(xvii) When he spoke to Nasiru Din last, Nasiru Din stared passing remarks that he sold pine worth about $60,000.00 and when he asked Nasiru Din who told him that Nasiru Din started swearing.

(xviii) He is seeking declaration that quarter (1/4) acre of property be given to him because Nasiru Din promised that some part of land will be given to them, maybe quarter (1/4) acres or so and he is also seeking costs of this action.

36. Firstnamed Defendant in cross-examination:-

(i) Stated that before 2005, he did not know Nasiru Din, he was living in Labasa with proper toilet and bathroom close to shops and hospital and with business in Labasa Town.

(ii) Agreed that he left the luxuries and went to Bua for personal reason.

(iii) Agreed that at time the environment in Bua would not be appealing to him at that time.

(iv) Agreed that in Labasa he was paying rent for shop and in Bua was not paying any rent and would have saved about $3,600.00 per year in rent.

(v) Agreed that choice to go to Bua was his personal choice.

(vi) Plaintiff was not part of conversation about him staying on the property and he only knew Nasiru Din.

(vii) Stated transfer of property to Plaintiff which was not known to him was no fault of Plaintiff.

(viii) Agreed that if he has a claim that it is against Mr. Nasiru Din and that Mr. NasiruDin gave keys to him two (2) days before he left Fiji.

(ix) Stated in 2006, Mr. Nasiru Din came to Fiji to check on the property and pine and stayed with them for a month.

(xi) When it was put to him that since, Mr. Nasiru Din was in regular contact with them; then what was the need for him to come to Fiji he stated that he does not know.

(xii) When asked if he remembered giving instruction to Solicitors he stated that his wife did most talking with Solicitor and she came to Labasa to see the Solicitor.

37. In re-examination Firstnamed Defendant stated that business was more profitable in Labasa than in Bua, but he had personal reason to go to Bua and he did not go to Bua to save rent.

38. After close of Defendant’s case counsel for the parties made submissions when they virtually summarised the evidence of the witnesses.

39. From the evidence produced in court this court make following findings:

(i) The Defendants were in a desperate situation and looking for a place tosettle away from Labasa for their personal reasons. The FirstnamedDefendant stated he moved to Bua for personal reasons as appears in paragraph 37 of this Judgment.
(ii) The Defendants approached Plaintiff’s parents through SecondnamedDefendant’s teacher friend for Defendants to reside on the property.
(iii) Plaintiff’s parents wanted the property to be cared for as they were residing overseas and as such agreed for Defendants to reside on the property free of rental and look after the property and operate the shop on the property
(iv) At all material times Plaintiff was the owner of the property after his father NasiruDin transferred the property to Plaintiff in consideration of natural love and affection. The property was transferred to Plaintiff almost two(2) months before Defendants moved into the property.
(v) Since the Plaintiff was residing in United State of America and property was initially owned by his father he left his parents to manage the property for him.

(vi) There was no agreement between Defendants or Plaintiff’s father that Defendants will be granted quarter acre of the property if Plaintiff’s father disposed all the property for the sole reason that when arrangement was made for Defendant to occupy the property, Plaintiff was the registered owner of the property.

(vii) Also Secondnamed Defendant, who did most dealing with Plaintiff’s parents gave evidence in very clear term that they were brought on the property as caretaker, they stayed on property free of rental, they conducted business from the property.

(viii) I accept Plaintiff and his mother’s evidence that when they visited the property in 2014, there were other people residing on the property who told Plaintiff and his mother that according to them SecondnamedDefendant was owner of the property.

(ix) Defendants did not spend substantial sum of money to develop the property and whatever work they did on the property was minor and for their own personal benefit.

(x) Defendants started on the property free and generated income from the shop and rental from the house they constructed for the purpose of getting rent for themselves.

(xi) The filing of proceeding in Agriculture Tribunal for a tenancy by the Defendant is an afterthought for the following reasons:

(a) Defendants were to only occupy the building and operate the shop located on the property;
(b) No agreement was reached between Defendant and Plaintiff’s parents for Plaintiff to cultivate any portion of the land. This is clearly evident from Firstnamed Defendant’s evidence appearing at paragraph 35(x) of this judgement, when he stated that in 2006 he asked Nasiru Din for his consent to use part of property for agriculture purposes and his request was declined by Nasiru Din;
(c) No evidence was produced to Court to show that Defendants were cultivating the property.

(xii) I find Plaintiff and his mother’s evidence to be credible and find that Defendants have no right occupy the property once their right to be caretaker had been terminated by Plaintiff giving them notice to vacate.

40. In view of my findings and the evidence produce in Court I have no alternative but to order for vacant possession of the property in favour of the Plaintiff.

Costs

41. I have taken into consideration that the trial lasted for two (2) days and the nature of the proceedings.

Order

42. I make following orders:

(i) Defendants and/or all occupants of the property known as Lot 1 on Deposited Plan No. 6000 “NAWI” District of Bua Island of Vanua Levu containing fourteen hectares and six thousand two hundred and seventy four square metres comprised and described in Certificate of Title No. 27587 “A” (hereinafter referred to as “the said property”)immediatelydeliver vacant possession of the said property to the Plaintiff.
(ii) Execution of the order in paragraph 42(i) be suspended until 15 January 2017.
(iii) Defendants whether by themselves, their agents, servants or howsoever be restrained from dismantling, removing or interfering with any improvementson the said property.
(iv) Defendants counterclaim be dismissed and struck out.
(v) Defendants do jointly and severallypay Plaintiff’s cost of this action assessed in the sum of $2,000.00 within thirty (30) days from date of this judgement.

Kamal Kumar

JUDGE

At Labasa
2 December 2016