IN THE MAGISTRATE’S COURT OF FIJI
CIVIL JURISDICTION
WESTERN DIVISION AT LAUTOKA

Civil Case No. 41 of 2016

BETWEEN	: Chandra Wati aka Chandra Wati Nand currently of Wellington, New Zealand, Domestic
Duties.
PLAINTIFF

AND		: Anand Kumar & Savitri Kumar of Lot 67, House No. 23, Field 40, Lautoka, Labourer and
Domestic Duties respectively.
DEFENDANT

Before          : The Resident Magistrate: Mr. Jeremaia N. Lewaravu

Date of Hearing:  10th of December, 2019
Date of Judgement: 30th of January, 2020

Appearance
Mr. Dayal of Dayal Lawyers for the Plaintiff
Ms. Chand of Anishini Chand Lawyers for the Defendant

 Judgement                                  
Introduction

1.	The Plaintiff filed a Writ of Summons herein seeking among other things vacant possession against the Defendant. The Plaintiff wishes to repair and renovate the said property after sustaining damage during cyclone Winston. The Defendant is opposing the substantive application and has filed a Statement of Defence to that effect.

Background

2.	On the 26th of April, 2017, the Plaintiff filed a Motion along with supporting Affidavit seeking to join the Director of Lands as a party. While opposing the application, the Director of Lands stated that it is not privy to any correspondences, communication and/or agreement between the parties regarding the occupation of the subject holding.

3.	The Director of Lands further state that the subject property was part of the Field 40 subdivision project by the State to regularise sitting occupants. In paragraph 12 of the relevant Affidavit, the deponent state that: ‘vacant property was to be used for relocation purposes or where advertised. The issue between the parties must be determined amongst themselves as the Interested Party was not privy to the same’.

4.	Despite the opposition by the Director of Lands, the application to join the Director of Lands was granted by this Court. In granting the Order, the Court was of the view that by virtue of the State Lands Act, Cap 132 of Fiji, the Director of Lands was and is the custodian of all State Lands in Fiji and that any relevant Orders made herein would in case be made subject to the consent of the Director of Lands.

The Motion

5.	On the 25th of April, 2019, the Defendant filed a Motion along with a supporting Affidavit pursuant to Order XXVI of the Magistrates Court Rules seeking to strike out the substantive matter herein. The  grounds raised by the Defendant are as follows:

a.	The Plaintiff failed to seek the consent of the Director of Lands to institute legal proceedings against the Defendant herein.
b.	The Plaintiff is not the last registered proprietor of the subject property consequently he lacks the locus standi to seek the relevant relief of vacant possession.
c.	The Defendant is currently in occupation of the subject property since 2006 hence he has a right of possession.

6.	The Plaintiff is opposing the application to strike out and has filed an Affidavit in Opposition to that effect 

The Submissions
7.	The Defendant state that there is no valid State Lease herein to confirm ownership, therefore the Plaintiff lacks the locus standi to seek vacant possession. Furthermore, the Plaintiff failed to seek the consent of the Director of Lands to institute legal proceedings against the Defendant. The application is defective and should therefore be struck out.

8.	The Defendant further submits that there was a tenancy and landlord agreement between him and the Plaintiff’s husband for the Defendant to rent the subject property in 2006. He was renting the property at a rent of $200.00 on a monthly basis. The Defendant has to date been paying electricity and water bills. The agreement was an oral agreement and he has not been issued with any rent receipt for all the rent payments made over the years. The Defendant further submits that the dealing was between him and the Plaintiff’s husband. The Plaintiff was not privy to any such discussions.
 
9.	The Defendant further states that a few years later, the parties had a subsequent agreement for the purchase of the said property. The Defendant has paid close to $13.600.00 for the purchase of the same. This payment was made directly to the Plaintiff’s husband on his visits to Lautoka. The Defendant further stated that major repairs were done after cyclone Winston due to extensive damage. He paid for the repairs with State assistance.

10.	The Defendant also state that he is currently in occupation as the owner of the house. The claim by the Plaintiff that he wants to repair the damage done after cyclone Winston is bogus. He has been advised by the Director of Lands vide the memorandum dated 23rd May 2012 that the Notice to Vacate issued by the Plaintiff was illegal. The Defendant is seeking an Order to strike out the case and/or the dismissal of the Writ of Summons inclusive of legal costs.

11.	The Plaintiff in opposing the application submits that the subject property was bought from the previous registered leasee one Krishna Reddy in 1972. She and her husband built the house and have been residing at the relevant property. She is the current owner of the subject property. She clarified that he Defendant was initially brought in as caretaker for the property on the eve of her departure for New Zealand. The Plaintiff has been residing in New Zealand ever since and would only visit Fiji annually.

12.	The Plaintiff is seeking vacant possession to conduct maintenance and repair works on the subject property. The subject property suffered heavy damage during cyclone Winston and require maintenance and renovation work. The Plaintiff had previously issued a Notice to Vacate against the Defendant who has failed to comply with the same. In the absence of a valid lease, the Plaintiff has now amended his reasons for vacant possession in that he only wants to remove the structures of his residential property.

Legal Analysis
13.	I will now deal with the grounds raised under the Motion.

14.	During the Hearing of this matter, both parties confirm and agree that there was no valid lease over the subject property hence the consent of the Director of Lands to institute legal proceedings was not required. The Director of Lands has confirmed the same. This ground was abandon.

15.	In his written submissions, the Defendant has submitted that the Court lacks the jurisdiction to deal with the matter herein. The Defendant refers to the provisio in section 16 of the Magistrates Court Rules that provides:

‘…a Magistrate shall not exercise jurisdiction -…in suits wherein the title to any right, duty, or office is in question’.

16.	The Defendant has submitted the case authority of Chandar v Chand [2019] FJHC 12 to support its submission for want of jurisdiction. The Defendant seeks a struck out order.

17.	I have considered the case authority cited. In Chandar v Chand (supra), the Court has made it clear at paragraph 21 that ‘the Magistrate had no jurisdiction on a different footing’. The facts in this case are different and are distinguished. In any event, the findings of the Court at paragraph 19 are relevant herein. 

18.	To put things into perspective, there was no valid lease over the subject property in existence at the relevant time of filing the Writ of Summons herein. It therefore follows that there cannot be any dispute as to the title of the subject property when there was no title in the first place. The provisio in section 16 of the Magistrate Court Rules is not applicable herein. On this basis, I find that this Court has jurisdiction to deal with the matter herein.

19.	I note that the matter brought before the Court was one of vacant possession as oppose to the determination of a right of possession. In any event, the parties are at liberty to raise this issue in the correct forum. The significant question to ask at this stage is who was the last registered proprietor of the subject property?

20.	The Director of Lands has failed to confirm that same as per the Lands file. The Defendant is unaware as his dealings were always with the Plaintiff’s husband. On the other hand, the Plaintiff did state that the subject property was bought from one Krishna Reddy in 1972. However, the question of whether Krishna Reddy was the last registered proprietor of the subject property remains unproven. The Plaintiff has failed to tender any relevant copy of the original Colonial Sugar Refinery lease neither has he tendered any subsequent copy of a State Lease to confirm the last registered proprietor of the subject property. In light of the foregoing, I find that the Plaintiff cannot confirm his position as the last registered proprietor of the subject property in question. He cannot therefore seek vacant possession for lack of locus standi to institute any such proceedings.

21.	Be that as it may, I reiterate that there is no valid lease in existence over the subject property. Therefore, there are no rights and/or benefits arising and without the consent of the Director of Lands any dealings involving Krishna Reddy and the Plaintiff inclusive of the subsequent dealing (if any) between the Plaintiff and the Defendant becomes null and void ab nitio for illegality. Similarly, a consideration of the amended relief sought by the Plaintiff herein is akin to an intervention into the administrative functions of the Director of Lands. On that basis, this Court cannot grant the amended relief by the Plaintiff to remove his structures and/or his buildings. On a final note, the legal maxim ‘equity will not permit a party to benefit from his own wrong’ is applicable herein.

22.	The full orders of the Court is as follows:

a.	The Writ of Summons herein is struck out.
b.	Each party to bear own costs.
c.	Appeal within 28 days.

As Ordered,

……………………………………………………
Jeremaia N. Lewaravu
RESIDENT MAGISTRATE

29th January, 2020