Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Vula v Matairavula [2012] FJHC 825; Action 162.2011 (27 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO: 162 of 2011

BETWEEN:

MANAINI VULA and JONE VULA
(by his mother and next friend Manaini Vula)
Plaintiffs

AND:

POATE MATAIRAVULA
First Defendant

AND:

VALU RAMAKITA
Second Defendant

Mr A Vakaloloma for the Plaintiffs
Ms P Salele for First Defendant.

DECISION

By an ex parte notice of motion dated 8 June 2011 the Plaintiffs applied for the following orders by way of interim relief:

"1 An Order restraining the 1st and 2nd Defendants (whether by themselves or any of their servants) or agents or whosoever from entering or at any time interfering with the Plaintiffs."

2 An order restraining the 1st and 2nd Defendants by themselves or their agents or servants or nominees from coming within a speaking distance or touching distance or through any forms of electronic modes."

Although the Notice stated that the application was made pursuant to the inherent jurisdiction of the Court, it should more appropriately have been made pursuant to Order 29 of the High Court Rules.

The application was supported by a brief affidavit sworn by Manaini Vula on 27 May 2011. The First allegation in the affidavit is that the Plaintiffs have been threatened by nominees/agents/servants of the First Defendant. The second allegation is that the Plaintiff's have been physically abused and assaulted. The second allegation also includes a claim that the Plaintiffs have been threatened by numerous military personnel and family members on behalf of the First Defendant.

It should be noted that there was no material in the affidavit that gave rise to an interest that needed to be protected through the intervention of this Court.

The Plaintiffs filed a writ with a statement of claim on the same day as the notice and affidavit in support. The statement of claim sets out in detail the factual allegations that at least provide some background to the context in which the injunctive relief was being sought.

Although there was no undertaking as to damages contained in the affidavit in support, after hearing from Counsel, I ordered that the requirement for providing an undertaking as to damages be waived. I granted an interim injunction in order to ensure that the applicants did not come to any harm.
The application for interlocutory relief was adjourned part heard to 15 June 2011 for an inter partes mention. In the meantime the following interim injunction was to remain in force till that date:

"Until further order of this Court the Defendants and or their servants or agents be restrained from evicting the Plaintiff from the premises situated at Lot 23 Tacirua Heights and also be restrained from interfering with the Plaintiff's quiet enjoyment of the said premises."

Before proceeding further with the application itself, it is necessary for me to make two comments about the documents filed in this action. First, both parties have, in drafting their documents, incorrectly referred to the First Plaintiff, the mother of the Second Plaintiff, a minor, as a best friend. The correct expression is "next friend".

Secondly, the Plaintiff's Statement of Claim as drafted, contains material which is more appropriately described as evidence. As a result the Statement of Claim is prolix and in contravention of Order 18 of the High Court Rules.

The application for the interlocutory relief claimed by the Plaintiffs was opposed by the First Defendant. An affidavit in opposition sworn by Poate Matairavula on 14 October 2011 was filed on behalf of the Defendant.

The interim injunction was extended to 30 November 2011 when the application came on for hearing. Having heard the submissions from Counsel and after a careful reading of the affidavits filed by the parties, I indicated that the application for interlocutory relief was refused but that the interim injunction granted on 9 June 2011 would remain in force until 31 January 2012. On that day the interim injunction would be discharged. I gave reasons for that decision and I now publish more fully my reasons for that decision.

Although the circumstances appear to be disputed it is clear that the Plaintiffs are in occupation of one flat in a block of flats on property owned by the First Defendant. It is also apparent that the Plaintiffs entered into occupation of the flat with the consent of the First Defendant. The pleadings indicate that there is a substantial dispute as to the events leading up to the occupation and the terms of such occupation.

In the Statement of Claim the Plaintiffs claim damages and what appears to be claims for permanent injunctions.

On the material before me I am satisfied that the circumstances surrounding the Plaintiffs' occupation of the First Defendant's flat indicate that such occupation was either a gratuitous licence or a contractual licence. In addition the First Plaintiff claims damages for the alleged failure by the First Defendant to abide by a promise made to the First Plaintiff concerning the payment of money and/or re-imbursement.

However I am also satisfied on the material before me that the arrangement that existed between the First Plaintiff and the First Defendant was not a lease. There is no material to indicate that the First Plaintiff had entered upon the First Defendant's property with the rights of a tenant in respect of the flat that she and her son occupied.

On the other hand, I am also satisfied that the arrangement in this case, whether a gratuitous licence or a contractual licence, was revocable by reasonable notice. I would also add that, as was the case here, where the notice given is an unreasonably short time for the licensee to vacate the premises, such notice may still effectively revoke the licence although it cannot be enforced until a reasonable time has elapsed. (See: Halbury's Laws of England Fourth Edition Volume 27 paragraph 9).

In any event it is clear that the Plaintiffs cannot remain on the premises indefinitely. There is no basis for concluding that the Plaintiffs have established their claim for permanent injunctive relief. In respect of any failure by the First Defendant to honour any undertaking or representation, then damages clearly provide an appropriate remedy as compensation for the Plaintiffs.

I note that the Plaintiffs first became aware of the First Defendant's intention to revoke the licence in April 2011. There was no material before the Court that would indicate what, if any, measures the First Plaintiff had taken to obtain affordable housing. There was no material to indicate whether staying with relatives was or was not a short term solution. I also accept Mr Vakaloloma's submission that the granting of a Power of Attorney to the First Plaintiff by the First Defendant may have been misinterpreted by the First Plaintiff. However I was informed by Counsel for the First Defendant that the Power of Attorney has been revoked.

In all the circumstances I considered it appropriate to allow the Plaintiff further time and as a result it is ordered that the interim injunction granted on 9 June 2011 be discharged on 31 January 2012.

I order that the costs of the application be costs in the cause.

W D Calanchini
Judge

27 January 2012
At Suva