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Ali v Rahman [2016] FJHC 369; Action 92.2013 (5 May 2016)

IN THE HIGH COURT AT LAUTOKA
WESTERN DIVISION
CIVIL JURISDICTION

ACTION NO: 92 OF 2013

Counsel : Mr M Young for plaintiff
Mr V Sharma for defendant

Date of Hearing : 05 May 2016
Date of Judgment: 05 May 2016

J U D G M E N T

Introduction

[01] The plaintiff brought this action against the defendant praying for:

1. A declaration that the plaintiffs have equitable and beneficial interest in the interest in the premises which is located at Lot 4, Martintar on that piece of land that is shown on the Certificate of Title No. 13162;
   
2. An order that the Defendant do all things necessary to sub-divide and transfer that portion of the land upon which the premises is located to the Plaintiffs;
   

100. An Injunction restraining the Defendant by himself or by its lawyers, agents and servants from interfering with the quiet enjoyment of the premises by the plaintiffs;
     

4. General damages;
   
5. Interests and costs;
   
6. Any other order of the Court that the Court deems just.

[02] The trial commenced on 26 November 2015 when first named plaintiff (Rahmant Ali) was called to give evidence. He gave evidence till 4.00pm on that day. The plaintiff then sought another date for continuation of the trial. After few adjournments the trial was set down for continuation on 5 & 6 May 2016. The trial was taken up for continuation today (5 May 2016) when Mr M Young, counsel for the plaintiff made an application for adjournment of the hearing on the ground that Mr Nandan who was in carriage of this case is ill. This was refusedin my separate ruling. As a result of this Mr Young sought to be excused as he was not instructed to conduct the trial. Accordingly, the trial continued on the basis that the plaintiffs had closed their case.

[03] At the trial, first named plaintiff gave evidence on behalf of the plaintiff. For the defendant, Abdul Saheed Rahman gave evidence.

Factual Background

[04] Rahmant Ali(First named plaintiff)and Nazul Nisha (Second named plaintiff) are husband and wife respectively. They are in occupation of the property situated at Lot 4, Martintar (‘the property’).

[05]Abdul Saheed Rahman (‘the defendant’) is the ultimate administrator of the estate of Karamdania and as such the registered proprietor of the property.

[06] The 2^nd named plaintiff and the defendant are sister and brother and are children of Karamdania and beneficiaries of her Estate.

[07] The Title was initially issued to Karamdania who died intestate and Abdul Rahman became the administrator pursuant to Transmission by Death No. 174224, which was registered in January 1980.

[08] Upon the death of Abdul Rahman, the property was transferred to the defendant as the ultimate administrator pursuant to Transmission by Death No. 524984, which was registered in April 2003.

[09] According to the plaintiffs, during the lifetimes of Karamdania and Abdul Rahman, the premises (flat) was built and relying on the promise by the said Karamdina and Abdul Rahman that the portion of the land upon whichthepremises is located will be sub-divided and transferred to the Plaintiff’s. The plaintiffs also state that they made significant financial contribution to the development and the construction of the premises. In addition to this the Plaintiffs have also paid for the rates on the land and the upkeep and the maintenance of the premises from 1970 todate.

[10] The 2^nd named Plaintiff has beneficial interest in the Land and Premises by the virtue of being the daughter of Karamdania who died intestate.

[11] By notice dated 6May 2013, the defendant informed the Plaintiffs to deliver up vacant possession of the property. The plaintiffs refused to vacate and brought these proceedings.

Defendant’s case

[12] According to the defendant, the said buildings were built in 1980 and completed in 1983 by the Late Abdul Rahman during his lifetime and after his death by the late Karamdania. The 1^st named Plaintiff was not known to the Late Karamdania as the plaintiff got married after the death ofthe late Karamdania.The Late Abdul Rahman and the late Karamdania made no such promises about the buildings being named in favour of the plaintiffs. The Plaintiff did not make any financial contributions to the development and construction of the premises.The premises were built through lien by the Late Abdul Rahman. The plaintiffs did not pay for the rates on the land or ever did any maintenance of the building. The rates on the land and maintenancewere done by the defendant.

[13] The defendant states that The Plaintiffs are tenants on the premises of the subject property. The defendant allowed the Plaintiffs to stay in the buildings.

Evidence

[14] The first named plaintiff-Rahmant Ali (PW-1) gave evidence for the plaintiff. He in evidence stated that his father-in-law (Sadar Abdul Rahman) used to come to their house at Namaka and used to tell ‘he has a property and he will build a house for us.’ He also said he helped his father-in-law in clearing and levelling the land and made financial contribution to the development and the construction of the premises. He further said he moved into the top flat in around 1980.

[15] PW1 did not complete his examination in chief on 26 November 2015, the first day of trial. His counsel sought adjournment though the trial was set down for two consecutive days. After few adjournments on application made by the plaintiff, the continuation of the trial was set down for 5 May 2016 (today).

[16] Today the plaintiff sought adjournment. That application was refused. The plaintiff was not present in court to complete his evidence in chief and cross examination. No other witness gave evidence for the plaintiff.

[17] Saheed Abdul Rahman (DW-1) when giving evidence for the plaintiff stated in evidence that his father did not give any promise to the plaintiff in relation to the flats. The construction of the flat was completed in 1979. If our father had given any such promise it would have been reflected in the will he made in 1989. The will was proved and probate obtained. Our father had bequeathed the property to his 6 sons. He also said ‘my father told the plaintiffs to come and rent the place and start looking for their own place.’ The plaintiffs paid rent until April 2013. Initial rent was $80.00. Subsequently the rent was increased to $250.00. They stopped paying rent after filing the writ of summons. They were issued receipts for the payment of rent. PW-1 produced receipts in proof of rent payments from 2002 to March 2013 (‘D-7’-defendant’s bundle of documents, pg-15-59). My father paid Town Council Rates. After obtaining the probate we started paying the Town Rates.

Analysis

[18]The plaintiff claims that they have equitable and beneficial interest to the property.

[19] PW-1 gave evidence and stated that he assisted his father-in-law in the development of the land and that he financially helped in the constructions of the flats by making payment for the labours and for 10 loads of soil at the rate of $10.00 a load. The plaintiffs did not call any other witnesses to support their claim.

[20] PW-1’s evidence was not subjected to cross examination. He did not appear and make available for cross examination when the trial was taken for continuation on 5 May 2016 (today).

[21] DW-1 denied that PW-1 helped in the development of the land and financially assisted his father in the construction of the building. DW-1 stated in evidence that his father brought the plaintiffs as tenants and they were paying rent until April 2013. He further stated that the plaintiff stopped paying rent after filing this action.

[22] The rent receipts issued to the plaintiffs clearly show that the plaintiffs were paying rent for the flat they occupy till April 2013. DW-1 produced rent receipts issued to the plaintiff from 2002 till March 2013 (D-7).

[23] DW-1 also produced receipts in proof of payment of Town Rates (D-6).

[24] PW-1’s evidence was not subjected to cross examination as he failed to attend to court for continuation of the trial. PW-1 deliberately failed to state when his father-in-law promised that a portion of the property will be subdivided and transferred to him. Even if his father in law had made such a promise he could have made it before 1993 because his father in law died in that year. Plaintiffs’ action will be caught by Limitation Act if he based his claim on a promised that was made before 1993. The plaintiff initiated this action in May 2013. The court cannot believe PW-1’s evidence that his father in law promised him (PW-1) that a portion of the propertywill be given to him.

[25] This action has emerged after a quit notice being served on the plaintiffs by the defendant in May 2013.

[26] DW-1 gave clear and straightforward evidence. He produced documents tosupport his evidence. In addition, his evidence remains unchallenged. I therefore accept defendant’s evidence.

[27] The plaintiffs fail to prove on the balance of probability that they have equitable interest in the property. As such, I dismiss their claim that they have equitable interest in the property. However, the defendant admits that the second named plaintiff (Nazul Nisha) is one of beneficiaries and she has beneficial interest in the interest in the subject property. I wouldtherefore dismiss the plaintiffs’ claim with summarily assessed costs of $2,000.00.

Final outcome

1. Plaintiffs’ action is dismissed.
2. Plaintiffs will pay defendant summarily assessed costs of $2,000.00.
   

........................................
M H Mohamed Ajmeer

JUDGE

At Lautoka
5^th May 2016