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Reddy v Chand [2025] FJMC 56; Civil Action 14 of 2023 (7 February 2025)

IN THE MAGISTRATE’S COURT AT SIGATOKA

CIVIL DIVISION

Civil Action No. 14/2023

DAVENDRA RAJ REDDY

-v-

AJAY CHAND

For the Plaintiff/Respondent: Mr. S. Sharma

For the Defendant/Applicant: Mr. N. Madhwan

RULING

Background

1. On 12^th September 2023, the Respondent filed the Writ of Summons and Statement of Claim (“claim”). The same were served to the Applicant on 13^th September 2023. The Respondent prays for the following:
   1. That the Applicant deliver vacant possession of or part of the building to the Respondent within one month;
   2. That the Applicant not dismantle or damage any part of the building at the time of vacating the building; and
   100. Costs.
2. The Applicant then filed a Notice of Motion and Affidavit in Support on 23^rd November 2023 (“motion”) seeking the following:
   1. That the said claim be struck out for want of jurisdiction;
   2. That the costs be borne by the Respondent; and
   100. Any other order deem fit and just.
3. The Respondent filed its Affidavit in Opposition on 26^th January 2024 seeking to dismiss the motion with costs.
4. Both parties have also filed their respective submissions before this Court.
   

Analysis

Statement of Claim

5. The Respondent’s claim appears to be premised on Section 16(1)(d) of the Magistrates Court Act as follows:

“...a Resident Magistrate shall have and exercise jurisdiction in the following civil causes – in all suits involving trespass to land or for the recover of land (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any times existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof);”

(emphasis added)

6. Therefore, in order for the claim to survive, the Respondent must first have legal ownership or lawful occupation of the land. The Applicant’s contention surrounds this issue.
   

Sever House from Land

7. The Respondent submits that the Court has jurisdiction as it only needs to focus on the house on the unregistered land. The argument may appear that the Court must consider the land in question as unregistered because it has yet to be captured under the Land Transfer Act. That there are some lands out here in Fiji that have yet to be identified and registered including this one. However, this argument is flawed as the Respondent concedes that he has applied to Lands Department and he is still waiting for a result of the lease. Further, the facts in the Mukesh authority which involves the same land appears to give more background about the registration of the lease of the said land. In any event, it is far from being an unregistered land as intended by the Respondent.
   
8. Ultimately, this Court does not have the jurisdiction to sever the house from the land as the above-mentioned Section 16(1)(d) is clear, the claim for trespass must be based on land including the house on it. Land being the pre-requisite to access the argument about the house. To litigate the house under the said provision, one must litigate the land.

Locus Standi

9. The Applicant submits that the Respondent does not have the legal standing as he is not the registered owner by being the holder of title of the land in question. The Applicant submits that he has applied to the Lands Department and to Housing Authority for issuance of a residential lease as per application described as 16125550. At the time of the Hearing of this motion, the Lands Department had yet to issue a lease for the land in question. Therefore, the Respondent does not have a valid lease to the land.
   
10. In Mukesh Chandar v Ajay Chand, Civil Appeal No. ABU 95 of 2019, the land in that case involves the same land in this matter. The Fiji Court of Appeal recognized that because the Lands Department had not issued the lease yet to the Plaintiff, the Magistrates Court lacked jurisdiction as the Plaintiff had no locus standi to bring the action. The same applies squarely here.
    

Courts’ Findings

11. The Court finds that it does not have jurisdiction to hear this matter as the Respondent or Plaintiff in the substantive matter does have locus standi to bring this action.
12. The Writ of Summons and Claim filed on 12^th September 2023 is struck out for want of jurisdiction.
13. Costs summarily assessed at $350 to the Applicant.
    

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J. Daurewa
Resident Magistrate
7^th February 2025