IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 238 of 2012

BETWEEN
SHAMENDRA K RAM
PLAINTIFF

AND
SEMISI TORA
DEFENDANT

Counsel:	   Plaintiff in Person
					                 Nacolawa & Company for the Defendant

R U L I N G

INTRODUCTION

1.	There are two applications filed by the plaintiff before me now. Both relate to some interim Orders made by Mr. Justice Nawana on 26 November 2012. The Orders were made pursuant to an ex-parte Notice of Motion which was filed together with the writ of summons and statement of claim on 15 November 2012. Mr. Justice Nawana did direct that the Motion be served on the defendant before he dealt with it November 2012.

2.	Nawana J’s Orders were as follows:  

(i)

that an injunction restraining Order that the Defendant, families and/or their servant and/or their agents to stay 500 meters away from the Plaintiff, Plaintiff servants and agent and Plaintiff’s farm and produce.	

(ii)
	
that the Plaintiff to pay $8,000.00 (eight thousand dollars) to the Deputy Registrar of the High Court.	

(iii)	
that the Restraining Order is granted only until 5th December 2012.	

(iv)
	
that the Defendant to file the Reply and Statement of Defence of objection on or before 5th December 2012.	

(v)	
that the Plaintiff to file reply within 7 days thereafter.	

(vi)	
that the matter is adjourned to 5th December 2012 before the Master.	

3.	It is important to note that the above orders lapsed on 05 December 2012. Thereafter, the Orders were extended from time to time. The last extension was “purportedly” made by the then Master on 11 February 2014. I say “purportedly” made because there is an issue as to whether that extension was made validly within the jurisdiction of the Master.

4.	Order (i) above is allegedly being breached continuously by the defendant to this day. On account of the alleged breaches, the plaintiff is seeking committal orders against the defendant.  

5.	Order (ii) above was complied with by the plaintiff on 11 April 2013 when he paid the sum of $8,000 into the High Court Trust Account (receipt exhibited in his affidavit).  It is this sum which the plaintiff seeks to have paid back to him.

6.	The Notice of Motion for Committal Proceedings was filed on 30 October 2014. The plaintiff’s motion for payment filed on 15 June 2015.

COMMITTAL PROCEEDINGS

7.	The Motion for Committal Proceedings seeks the following Orders:

1.	That the Defendant, SEMISI TORA to stand commit to prison and/or pay fine for contempt in disobeying and/or not paying obedience to Orders of this Honourable Court of which Orders the said SEMISI TORA had noticed and are:

a.	the Order of his Lordship made on the 26th November 2012 and  extended on 7th February 2014 requiring the Defendant to comply and obey are as follows:

i.	That an injunction restraining Order that the Defendant, families, and/or their servants and and/or their agents to stay 500 meters away from the Plaintiff, Plaintiff servants and agent and Plaintiff’s farm and produce

2.  A copy of the said Order dated 11th February 2014 indorsed with the Penal Notice was personally served on the Defendant, his wife and his son at his home by a registered Bailiff and affidavit of service has been filed.
3.  The Defendant failed to comply with the Order specifically order (i).
4.  The Defendant has notice of all Orders made by this Honourable Court as stated herein above and yet disobeys or fails to obey the said Order.
5.  The Defendant to pay the Plaintiff costs incidental to this application also of issuing and execution of the orders to be made herein.

8.	The supporting Statement of Committal identifies the defendant by name, his address, and also the grounds upon which the committal orders are sought. It also annexes a copy of the Order dated 11 February 2014 and a statement that the said Order was fully served on the defendant. The statement goes on to state that the defendant is in continuous breach of the said Orders.

MOTION FOR PAYMENT

9.	The  motion for payment seeks the following Orders:

1.	An Order that the money deposited into the Trust Account of the Court on 11th April 2013 be released to the Plaintiff.
2.	An Order for the Defendant to give vacant possession.

10.	It is supported by an affidavit sworn by the plaintiff on 09 June 2015.  By this affidavit, the plaintiff deposes that he had taken a loan from the Fiji Development Bank in order to satisfy Nawana J’s Order. On 11 April 2013, he paid the sum of $8,000 into the High Court Trust Account. 

11.	The plaintiff says he now needs the $8,000 to develop his land and recover some loss. Otherwise, he may just refund the sum to the FDB to advance his payment and thereby reduce interest. 

12.	The plaintiff further deposes that he has had default judgement entered against the defendant in the sum of $66, 137.15. He says that if the $8,000 is now paid back to him, it could be offset against the default judgement entered against the defendant. This submissions seems to suggest that the $8,000 payment was ordered to serve as security for the defendant. Hence, if in the event the defendant was to succeed in his defence of the action and be found to be entitled to the sum, that payment would simply be offset against the default-judgement sum against the defendant.

13.	The plaintiff then proposes that the balance of $50, 137.15 of the judgement sum can then be offset by an Order to allow the plaintiff to take possession of the defendant’s land and house based on a valuation which this Court should order.

BACKGROUND

14.	The defendant was the registered lessee of some Agricultural Lease issued by i-TLTB under i-TLTB Ref No. 4/7/6547,  Contract No. 19084 under ALTA Lease. 

15.	At some point, the defendant and the plaintiff entered into discussions about the sale and purchase of the said land. Their understanding was that a new lease under ALTA would be issued to the plaintiff. On 30 October 2006, the defendant and the plaintiff signed an MoU. 

16.	By their arrangement, some rental arrears which the defendant owed to i-TLTB was to be absorbed into the purchase price. Hence, the agreed purchase price of $30,000 included a component for the defendant’s rental arrears.

17.	Pursuant to the arrangement, the plaintiff would pay upfront a sum to settle the i-TLTB arrears.  It is not clear to me whether the sum he paid upfront was $10,000 or $14,000. 

18.	The balance was to be settled vide a loan to be taken by the plaintiff from the Sugar Cane Growers’ Fund (“SCGF”). Apparently, SCGF had given some indication of its willingness to finance the balance of the purchase price.  However, SCGF did so on the expectation that i-TLTB would issue to the plaintiff a 99-year ALTA lease. Rather, as it turned out, i-TLTB only issued a 50-year NALTA lease to the plaintiff instead of a 99-year ALTA lease. Consequently, SCGF would refuse to finance the balance of the purchase price. To this day, according to the defendant, the plaintiff has not settled that outstanding balance.

PLAINTIFF’S & DEFENDANT’S FALLING OUT

19.	SCGF’s refusal to finance the balance of the purchase price would be the catalyst for the souring of the relationship between the plaintiff and the defendant. The defendant, upset at not being paid the balance of the purchase price, would begin to harass the plaintiff about it. In his affidavits, the defendant admits that his anger at not being paid the balance of the purchase price has been the reason for his attitude against the plaintiff. He deposes inter-alia that his “anger will not subside if the balance is not paid” and also that “the Plaintiff is best advised to pay up and solve the problem”.

20.	The plaintiff however alleges that the extent to which the defendant has gone to vent out his anger has made the plaintiff’s life miserable and exposes the plaintiff’s family to threats of violence.

21.	The plaintiff deposes that the defendant would make racial taunts and make threatening comments against him and his family whenever the plaintiff passes by the defendant’s house to get to his farm. They would even go to the extent of  doing their “toilet business” on the plaintiff’s farm.

22.	The defendant does not deny that there is bad blood between him and the plaintiff. Nor does he deny that he has been rather confrontational with the plaintiff. His problem appears to stem from the fact that the plaintiff has not paid him the balance of the purchase price pursuant to their arrangement.

WHAT TRANSPIRED BETWEEN THE PARTIES FOLLOWING SCGF’S REFUSAL TO FINANCE THE BALANCE OF THE PURCHASE PRICE

23.	The plaintiff says that when the SCGF refused to finance the balance of their agreed price, he went to the defendant and told him about it. He said the defendant told him not to worry and reassured him that he could continue to plant sugar cane and that the defendant was prepared to accept payment of the balance from 60% of the cane proceeds:

a.	The Defendant assured me not to worry and offered me to continue planting cane, give him some more cash and balance to pay in instalment of 60% from net cane proceed as agreed in our agreement clause 10 dated 30th October 2006.
b.	Therefore the new lease was accepted by the Defendant. My 1st payment of 60% due in 2007 was refused by the Defendant and he demanded the land back.
c.	So when he demanded the land back, I demanded my refund of monies paid to him and investment which he made a false promise and gave me a letter of loan application, annexed and marked 
‘SKR-1’.
d.	When the defendant took illegal possession of my lease and refused to refund my money, then I filed the civil case action No. 207/2007 as explained earlier in this reply.

24.	It is not clear to me whether the defendant was at all agreeable to the plaintiff’s above proposal. That proposal, I would think, was a reasonable one.  

25.	From the affidavits filed by both parties, what is clear is that the defendant would continually accost the plaintiff about the latter’s non-payment of the balance of the purchase price. According to the plaintiff, the defendant even went to the extent of chasing the plaintiff out of the land. Even though – by that time, the lease was already issued in the plaintiff’s name, the defendant, it appears, felt he was entitled simply because he was a member of the land owning unit. The plaintiff says that the defendant was “discriminating” the plaintiff “by his race” and would “demand loose cash monies, cows every now and then” which the plaintiff refused.

26.	It was on account of these problems which led the plaintiff to file his first claim (civil action No. 207/2007).  That claim, according to the plaintiff, was filed because the defendant was chasing him out of the land. The plaintiff says this first action was filed because he was claiming a refund of his $14,000.00 plus the investment costs with damages in case the defendant succeeded in chasing him out. 

27.	That first action was struck out due to non-appearance by the plaintiff and his counsel. However, the defendant would continue to accost the plaintiff about the non-payment of the balance of the purchase price. 

28.	As I have said above, the plaintiff does not deny that he has been angry. He says that his anger will only subside once the balance of the purchase price is settled by the plaintiff.

DEFENDANT’S AFFIDAVIT IN OPPOSITION

29.	On 17 December 2014, the defendant would file an affidavit in opposition of the Notice of Motion for Committal. He resists the application on several grounds. First, he says that the Order for which the plaintiff is seeking committal is defective and irregular and the application should, accordingly, be thrown out with costs to the defendant. He argues that - at the time the plaintiff had filed the application for committal proceedings – the Order had long lapsed and had not been extended.

30.	What is clear from the records is that Nawana J had made the initial Orders in December 2012. The order was extended from 05 December 2012 to 18 February 2013. The defendant says that after 18 February 2013, there was no further extension of the order.  

31.	What in fact happened was that the plaintiff had filed a Motion on 24 January 2014 for a further extension of Nawana J’s restraining Orders. When this application was placed before Mr. Justice Abeygunaratne, the learned Judge would note that Mr. Nawana J’s Orders had already lapsed. In paragraph 11 of a Ruling which Abeygunaratne J handed down on  20 March 2014 – he noted and directed as follows:  

“the injunction granted has lapsed.  Therefore Extension cannot be granted.  File fresh application and move”.(see para 13 of Judgment 20/03/14)

32.	As it turned out, instead of filing a fresh application before Abeygunaratne J, the plaintiff would have the same application (which had been placed earlier before Abeygunaratne J) placed before the Master. And as it turned out, the then Master would extend the Orders of Nawana J on 07 February 2014.

33.	How the plaintiff was able to convince the Registry to place the same application before the Master, is not clear from the records. It appears also from the records that the Master was unaware of what had transpired earlier before Abeygunaratne J.

34.	None of this is denied by the plaintiff.

35.	The defendant argues that when the Master extended the Order on 07 February 2014, the Master was acting outside his jurisdiction. The defendant argues that the resultant order therefore is irregular, null and void.

36.	The defendant argues that the plaintiff had misled the Master in not disclosing what had transpired before Abeygunaratne J. He refers to paragraph 20 of the Judgment of 20 March 2014.

37.	The defendant also deposes in his affidavit as to why he has never complied with the Orders of Nawana J.  His reason for not complying with filing a statement of defence and affidavit in opposition were due to some miscommunication problem he had with his lawyers.  The defendant appears to concede that he is to blame for his lack of communication with his lawyer and his consequential inability to file the necessary documents in court.
38.	However, as to the restraining Order that he stays at least 500 meters away from the plaintiff, the defendant deposes that his house actually borders the plaintiff’s sugar cane and that his house was already erected on its current site well before he even entered into the agreement with the plaintiff. As such, it was impractical for him to comply with this restraining Order. In any event, the defendant insists that he is sitting on his reserve land and he cannot be relocated. He says that the Order, in that regard, must be varied. 

39.	The defendant says that if the matter had been heard inter-partes, he would have brought this fact to the attention of the court and had the Order varied accordingly. He asks that he be given the chance to respond to the Motion filed on 26 November 2012 to get clear perspective of the matter.

40.	The defendant reiterates that the plaintiff owes him the balance of the purchase price which is $20,000. By not paying him the balance, the plaintiff has been unjustly enriched.

Plaintiff’s Affidavit In Reply

41.	On 12 February 2015, the plaintiff would file an affidavit in reply. He asks the Court to a site visit to the farm so the Court can see for itself all that is going on. He said he also filed a number of police reports on account of the defendant’s annoying and trespassing and not letting him enjoy the freedom of land till to date. He says that the police report No. 4036/07 is relevant. He will produce the restraining Order at the time of hearing.

a.	Since the Defendant was failing in his motive to gain financial advantage and land from me after the sugar cane was planted, he was getting aggressive.
b.	I reported the matter to the police where on 17th January 2013 before Police Inspector Bhagwat Dass of Lautoka Police Station he was to be charged where then he begged me to withdraw the complaint, and upon the counselling that he will not repeat to trespass in my land and not to annoy me, then I withdrew the complain to charge him.
c.	The TLTB has also warned him for the unlawful actions, a copy of the letter dated 19th April 2007 will be presented in Court at the hearing.

42.	The plaintiff says that prior to the filing of this action 238/12, the defendant had asked for a settlement after the case 207/2007 was struck out. He says that the defendant had offered to cultivate, harvest and send the cane to the mill from 2009-2011 (3 years) and that once the plaintiff has settled his $24,000.00, the plaintiff should transfer the land back to the defendant. 

43.	The plaintiff says that he agreed to that arrangement “considering his bulling and threatening and embarrassing me in front of my family and friends…”. However, he said that the defendant lied so the plaintiff “re-took the possession of my land in 2012 and started farming where he started his same old cowardly action again”. 

44.	The plaintiff says that he filed the second (current) action but the defendant had twisted the story around before Justice Nawana and was telling the court that he  (the defendant) was doing what he was doing because the plaintiff was not paying the defendant monies due pursuant to their arrangement. The plaintiff says that Nawana J would end up ordering him (plaintiff) to pay $8,000.00 into court. This the plaintiff paid after having taken out a loan. 

45.	The plaintiff says that the defendant on the other hand has not complied or obeyed the said Court Order till to date and has neither appealed it.

46.	Notably, the plaintiff, does not refute the allegation that Abeygunartne J had ordered that he file fresh injunction application after having noted that the injunction granted by Nawana J had lapsed – nor does the plaintiff deny that the Master had granted an extension even after the Order had lapsed and in spite of Abeygunaratne J’s directions. All that the plaintiff says is that the Master had jurisdiction. He also deposes that all that the Master was doing was to extend Nawana J’s Orders, rather than making new Orders.

47.	In response to the defendant’s plea that his house was long constructed on the land well before their arrangement, the plaintiff deposes as follows:

If he pleads that his house is at the boarder of my land, then he should not take Law in his hands and that piece of land was given by me on grounds that he will help me and be a contract worker for my farm and took the piece of land deceiving me.

He has to proof with documents if he has any right to stay there and that if he is a real landowner.

48.	The plaintiff further says that, in any event, the Orders of Nawana J were not obeyed well before any extension was made. The issue of extension and whether or not the Master had jurisdiction – are red herrings.

49.	On the defendant’s allegation that the plaintiff owes him money, the plaintiff deposes that if the defendant was right, the defendant should have just filed a civil claim against the plaintiff.  However, instead of doing that, the defendant resorted to threats against the plaintiff and to other members of the public who might give evidence against him. 

50.	The plaintiff says that he was always willing to pay his balance but the defendant refused to take the payments then in 2007. 

51.	The plaintiff says that he has not been able to “enjoy the fruit of the land” and has been entering his land through the Police assistance and through Court Order. He says he is just trying to recover  his loss of money over the years and trying to manage and revitalize the soil as it was been intoxicated/damaged due to no care taking over the years which was in unlawful possession of the defendant.

52.	The plaintiff further says:
As to paragraph 37 (iii), I am ready to pay my balance of $16,000.00 as per our agreement, $8,000.00 has been paid in Court, and the Defendant should pay my $66,137.15, the Defendant should pay me $50,137.15 now after off-setting what I owe him.

53.	The plaintiff further deposes as follows:

He is lying and was trying to threaten me away as he has been doing, he has went (sic) further and has illegally sublette (sic) a piece of my land and another i-taukei man who is his family and he is also a nuisance to me, forcefully planting cassava and is one of the suspect of burning my cane on 4th February 2015.

54.	He adds that the defendant and his families, friends and agents are still giving him trouble and also disrupting his workers on his land. Unless the defendant is removed from the land, the defendant will continue to give him trouble.

55.	I observe that the default judgement in question is still in place. On 02 July 2013, Nacolawa and Company had filed a Notice of Motion under Order 14 Rule 11 of the High Court Rules 1988 seeking to set it aside. However, that application was dismissed by Master Ajmeer on 08 August 2014 with $200 costs.

56.	On 19 August 2015, the plaintiff would file a supplementary affidavit. By this affidavit, he simply regurgitates and expounds on the same pattern of behaviour that the defendant allegedly is exhibiting towards the plaintiff and the plaintiff’s family and workers. 

COMMENTS

57.	The defendant does not seriously refute the allegations that he has breached the restraining Orders of Nawana J.

58.	I understand the defendant’s frustration in not having been paid the balance of the purchase price. While his anger is understandable, it is not a valid excuse for his confrontational and appalling behaviour towards the plaintiff and the plaintiff’s family.

59.	Once the lease title was issued in the name of the plaintiff, the plaintiff thereby has the benefit of having a claim on the property which he can assert against the whole world, and in the case of an i-taukei land, the legal proprietary interest created by a valid an i-Taukei Lands Trust Board lease over such a land can, for the duration of the lease, can be asserted against an i-taukei member of the landholding unit or against the landholding unit as a whole.

60.	What the defendant in this case is not entitled to do, whether as a member of the land holding unit, or whether he was the plaintiff’s predecessor in title, is to trespass onto the land in question or to demand that the plaintiff vacates the land, or to accost the plaintiff about the balance of the purchase price.

61.	If he is aggrieved about the balance of the purchase price, he should have filed a claim against the plaintiff to seek to recover the same.

62.	I gather from the plaintiff’s affidavit that he (plaintiff) had once suggested to the defendant to settle the balance of the purchase price from the cane proceeds – but that the defendant had insisted that he vacate the land. 

63.	As I have said, the defendant is in no position to demand that the plaintiff vacates the land. His right over the balance of the purchase price is a right in personam which he should enforce by suing for payment.  It is not a proprietary right which entitles him to repossession or demand that the plaintiff vacates the land.

64.	Having said all that, there are a few additional comments I wish to make in relation to the applications before me.

65.	The first is that I accept that the defendant’s house was erected on the land where it sits, well before he even entered into negotiations with the plaintiff about the sale and purchase of the land. Whether that site is included within the plaintiff’s leasehold or outside his leasehold is unclear to me. Only the evidence of a surveyor could clarify this.

66.	As such, I am reluctant to use the location of the defendant’s house as a basis for a finding that he was in contempt of the Orders and for a Committal Order.

67.	Secondly, the consequences of a committal order are drastic in that it results in the deprivation of the liberty of a person.  In my view, the Courts should be particularly guarded because of the quasi criminal nature of committal proceedings. Accordingly, even where a contemnor is clearly in contempt, committal should only be used as a last resort if there are more appropriate alternative remedies open to an applicant. 

68.	In this case, I think the appropriate avenue for the plaintiff to assert his rights was to sue for damages for trespass and also to lodge a police complaint for any alleged criminal trespass.  If he has done so in this case, then the defendant judgment sum he has obtained should be enforced in other more appropriate enforcement proceedings.

69.	Thirdly, the manner in which the plaintiff had obtained an extension of the Orders from the Master when the learned Judge Abeygunaratne had directed him to file a fresh application for restraining Orders – was simply shocking. The matter should not have been referred to the Master at all. The manner in which the plaintiff had gone about to secure the placement of the matter before the Master tantamounts to a forum shopping exercise. It was itself a display of utter disrespect to, and contemptuous of, the Learned Abeygunatne J’s directions.

70.	For the above reasons, I refuse to make the committal order.

71.	As for the application for the release of the $8,000 to the plaintiff, I see no reason why the said sum should continue to be held in Court. Accordingly, I hereby direct the Registry to forthwith release the said sum to the plaintiff.

72.	Although I have refused to make any committal order, I am still of the view that the plaintiff is entitled to costs in having to make the applications. Accordingly, I order costs in favour of the plaintiff which I summarily assess at $1,000 (one thousand dollars only).

73.	I note that the plaintiff already has judgement entered against the defendant. This ruling effectively brings the substantive matter in this case to an end. It is now up to the plaintiff to enforce his judgement.

ORDERS:
(i)	Application for Committal Order refused.
(ii)	Order that the $8000.00 held in the High Court Trust Account be released forthwith to the Plaintiff.
(iii)	Costs in favour of the Plaintiff in the sum of $1000.00.

………………………….
Anare Tuilevuka
JUDGE
28 September 2018