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RR v FBH [2012] FJMC 166; Domestic Violence Case 54.2012 (12 July 2012)

IN THE MAGISTRATES COURT
AT NASINU

Domestic Violence Case No. 54/12

BETWEEN:

R R
[Applicant]

AND:

F B H
[Respondent]

Ms. Vulimainadave for the Applicant
Mr. Mukesh Nand for the Respondent

Ruling on Jurisdiction

Introduction

(1) This is a Domestic Violence Restraining Order Application by R R H(hereafter the "Applicant") seeking orders for non molestation, non contact, use of property, use of weapons and occupancy orders against F B H (hereinafter the "Respondent")

(2) On 30th January 2012 the application was supported by PC Ravi and the applicant was present. The applicant has filed this application in relation to her other two younger sisters who are ages of 18 and 13 years. The applicant is 20 years and she is a student of Fiji National University.

Background

(3) The applicant and the respondents were step sisters. The disputed house belongs to the applicant"s father who is deceased now. On 30th January 2012 the application was supported in open court and the court was satisfied. Then, the Respondent was served an interim Domestic Violence Restraining Order restraining the Respondent and her husband; S S particularly from harassing the Applicant and her 2 sisters, for the Respondent to stay 100 meters from the Applicant and her 2 sisters and for the Respondent to vacate the Applicant"s house forthwith. In addition the respondents were ordered not to destroy any, remove any household items apart from the respondent"s own belongings, the respondents must not use any weapons on the applicant or her sisters.

(4) These interim orders were made under sections 27, ( non molestation), 29( non contact), 32( use of possession), 33 ( use of weapons) and 3735 and 36( Occupancy order) of Domestic Violence Decree 2009( Hereinafter Decree).

(5) The Respondent has filed the response and it was fixed for hearing. At the hearing the respendont"s counsel Mr. Mukesh Nand raised objection that this court has no jurisdiction to hear title dispute. Objection was based on three issues. The house in question is described as Methodist Church Lease No. 356592, Lot 7 Lyth Street, Davuilevu Housing on DP 6524 in the District of Rewa, Viti Levu (hereafter referred to as the "property").

(6) The Respondents filed Affidavit on 20th March 2012 denying the allegations made by the Applicant.

(7) The Applicant then filed an Affidavit in Reply on 19th April 2012 and served the same on the Respondent on 19th April 2012.

(8) The matter now before the Court is for the present application by the Applicant seeking for an order that the Domestic Violence Restraining Order granted on 30th January 2012 be extended and be made permanent against the respondents..

Issues

(9) The issues in this matter are as follows:

• (a) Whether the Court has jurisdiction to make an order against the Respondent to vacate the property when there is a dispute of title and rights of beneficiaries of the said property.
  
• (b) Whether order to vacate the property would alienate the Respondent"s legal and equitable rights on the property.
  
• (c) Whether the order to vacate the property would cause hardship to the Respondent and her family.
  

Determination

(10) The respondent referred Magistrate"s court rules on this issue. The Magistrates Court jurisdiction in exercising it powers is laid out under Section 16 of the Magistrates Court Act Cap 14 whereby it states that:

"16. (1) a Resident Magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes:-

(a) (i) in all personal suits arising out of any accident in which any vehicle is involved where the amount, value or damages claimed, whether as a balance claimed or otherwise, is not more than three thousand dollars;

(ii) in all other personal suits, whether arising from contract, or form tort, or from both, where the value of property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than two thousand dollars;

Provided that a Magistrates Court shall not exercise jurisdiction-

(i) In suits wherein the title to any right, duty or office is in question; or

(ii) In suits wherein the validity of any will or other testamentary writing or of any bequest or limitation under any will or settlement is in question; or

(iii) In suits wherein the legitimacy of any person is in question; or

(iv) Except as specifically provided in the Matrimonial Causes Act or any other Act for the time being in force, in suits wherein the validity or dissolution of any marriage is in question; or (Cap. 51)

(v) In any action for malicious prosecution, libel, slander, seduction or breach of promise of marriage."

(11) The Respondents submitted that the powers of the Magistrate Court extends only to actions regarding personal suits, suits between landlords and tenants and suits involving trespass to land and recovery of the same. The Applicant in this matter is requesting for an order for the Respondent to be vacated from the property on which the first Respondent has been living on the said property since 1994. The Respondent in her Affidavit sworn on 19th March 2012 claims that she has right to reside on the property as she is also a beneficiary of the estate. Moreover the Respondent is in the process of obtaining Letters of Administration in the Estate of the late Hassan Raza aka Hassan Raja.

(12) The Respondents thus submits that there is a question of title and distribution of the property as well as the granting of the Letters of Administration.

(13) The Respondents referred to Section 3 of the Succession, Probate and Administration Act Cap 60 which states that

3 – (1) Subject to the provisions of this Act, and to any rules made hereunder the Court shall have jurisdiction in contentious and non contentious probate matters and proceedings and in the granting or revoking or probate of wills and administration of estates of persons dying leaving property in Fiji.

(14) Whereby the definition of "Court" is laid out in Section 2 which states:

"Court" means the Supreme Court or a Judge thereof;

(15) The Respondents further submitted that any question arising in administration can be settled by the Court and relies on Section 41 (1) of the Succession, Probate and Administration Act Cap 60 which states that;

The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application or any real or personal estate which an executor or administrator may have in hand, or as to the residue of the estate, as the circumstances of the case may require.

(16) Therefore the Respondents submit this Court does not have power to exercise its jurisdiction in this matter as it is clearly stated in the Succession, Probate and Administration Act that any question arising from Wills, Probates and Administration should be settled by the Supreme Court or Judge.

(17) The Section 35 and 36 give power to issue occupancy order under the Decree.

35.-(1) Subject to this section –

(a) a Court that makes, or intends to make, a domestic violence restraining order, may order that a protected person has the right to occupy a home and that access by the respondent to the home be restricted (an "occupation order"); and

(b) a Court which is considering whether to make a domestic violence restraining order under this Decree, must consider whether an occupation order is required to promote the safety and wellbeing of the person who would be protected by the order and the safety and wellbeing of any child in their care or who is ordinarily in their care.

(2) An occupation order –

(a) may be made in relation to a home -

• (i) which the protected person or the respondent, or the protected person and the respondent, own or in which either has a legal or equitable interest (including, but not limited to a tenancy);
  
• (ii) whether or not the protected person and the respondent have ever lived in the same home, the home to which the order relates, or any other home; and
  
• (iii) whether or not the protected person or the respondent is living in the home at the time that the order is made, provided that
  

(b) nothing in this section or this Decree allows a court to make an order alienating native land or any legal or equitable interest in it.

(18) Section 35 (3) and Section 36 (4) of the Domestic Violence Decree 2009, before an occupation order or a tenancy order is granted by the Court, it must be first satisfied that

• (a) It has jurisdiction to make a tenancy order; or occupation order
  
• (b) There are grounds to make a tenancy order; occupation order and
  
• (c) The making of a tenancy order or occupation order is appropriate;
  
• (d) Make a tenancy order whether or not it makes an occupation order.
  

(19) The Section 35(5) says;

"(5) A Court that is considering whether to make an occupation order, must take the following into account –

(a) the principle in section 7(1)(f);

(b) the effect on the safety and wellbeing of the protected person and on any child in their care, or who is ordinarily in their care, if an order under this section is made or is not made;

(c) any hardship that may be caused to the protected person and to any child in their care, or who is ordinarily in their care, if an order under this section is made or is not made; and

(d) the accommodation needs of the respondent, and any other relevant person, provided that unless there are exceptional circumstances, priority must still be given to the accommodation needs, safety and wellbeing of the protected person and any child in their care or who is ordinarily in their care."

(20) The section 7 illustrates the objectives of the Decree

7.-(1) The following principles must be applied by a Court when exercising jurisdiction under this Decree and by any person who exercises a power, or performs a function, pursuant to this Decree –

(a) the need to promote the objects of this Decree;

(b) the need to ensure that proceedings under this Decree are as speedy, inexpensive and simple as possible;

(c) the need to ensure the safety and wellbeing of victims of domestic violence;

(d) the need to ensure that children are not exposed to domestic violence and to ensure the safety and wellbeing of children who have been, or are at risk of becoming, a direct or indirect victim of domestic violence;

(e) the need to ensure that victims of domestic violence can go about their life and usual routines free from the risk of domestic violence;

(f) the need to ensure as far as possible that victims of domestic violence are able to remain in their usual homes, and even if this does not or cannot occur, that their accommodation needs have highest priority;

(g) the need to address the adverse consequences of domestic violence for the victims and to rehabilitate the victims;

(h) the need to ensure that victims of domestic violence are not further victimised by the perpetrator or others, in the course of the proceedings or otherwise, because the victim sought protection or other redress in relation to the violence; and

(i) the need to ensure that the perpetrator –

(i) is aware of the terms and effect of an order made under this Decree which imposes obligations upon them;

(ii) is aware of services that may be able to assist them to address their violence;

(iii) is encouraged to accept responsibility for their violence; and

(iv) contributes, where possible, to the rehabilitation of the victim.

(21) Jurisdiction of Courts is given by the section 8 of the Decree. It says;

8.-(1) The following Courts have jurisdiction to make orders under this Decree –

(a) the Magistrates" Court when constituted by a resident magistrate;
(b) the Family Division of the Magistrates" Court;
(c) the Family Division of the High Court;
(d) a Juvenile Court; and
(e) the High Court.

(2) An application under this Decree may be commenced in any of the Courts specified in subsection (1) and in addition those Courts may make an order under this Decree when exercising jurisdiction in other proceedings before the Court, including proceedings relating to a criminal charge.

(22) This court is not deciding the title of the property. The Decree is specially meant to stop violence and safety and well being of the victims. This is an interim order and the respondents have admitted that they do not have direct legal rights to the property. Though the respondent has mentioned the letter of Administration, succession case, it was not filed by either party. If there is violence on the title court does not have any option to grant orders to stop violence. As section 35(2) it is apparent that the applicant has a legal or equitable interest on the property than the respondent. The submission made on the succession has no application to this type of orders..

(23) Therefore I hold this Court does have jurisdiction to grant tenancy or occupation order or the Order for the Respondent to vacate the property. The respondent may file pertinent actions to secure her rights.

(24) Section 35 (5) of the Domestic Violence Decree 2009 provides as follows:

(a) The accommodation needs of the respondent, and any other relevant person, provided that unless there are exceptional circumstances, priority must still be given to the accommodation needs, safety and wellbeing of the protected person and any child in their care or who is ordinarily in their care

(25) The Respondent told that she has been living on the property since 1990 with her mother and step father and that she has looked after the Applicant from birth along with her other 2 step sisters till the date of the Restraining Order.

(26) The Court admits there may be hardships on the respondents but primary concern is to stop violence and safety and well being of the victims of violence. After this inquiry the court can consider whether what order to be remained and what order to be discharged. Since the applicant strongly objects that the respondents be in the property the court to look stop violence and imminent violence as there is 13 years and 18 years old left behind with the applicant. In this court the court does not decide the title of the property. That is respondent to solve in proper forum.

(27) I further note that this jurisdictional objection has taken at the hearing stage. This type of objections must be taken at the very outset, as common law rules says, otherwise it is deem to be waived as this court has plenary jurisdiction to try this cases. In that sense, this objection cannot be sustained.

(28) I therefore make following orders;

1. This court has jurisdiction to grant tenancy or occupancy orders to stop violence and safety and well being of the applicant
   
2. Therefore hearing will be proceeded
   

100. The preliminary objection is hereby dismissed
     

4. No costs
   

On 12th July 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu