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Prasad v Devi [2016] FJHC 394; HBC80.2016 (11 May 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

CIVIL ACTION NO. : HBC 80 OF 2016

BETWEEN : DAVENDRA PRASADand CHANDRA KIRAN also

known as PUSHPA both of Namaka, Nadi in the Republic of Fiji Islands, Driver and Domestic Duties respectively.

Plaintiff

AND : SAVITRI DEVIpreviously of Namaka, Nadi in the

Republic of Fiji Islands currently residing in 13 Kovestwood Street Creasmead, Queensland 4132, Australia, Retired Nurse.

Defendant

Counsel : Mr. Jasveel K. Singh for the Plaintiff

Date of Hearing : 10^th May 2016

Date of Order : 11^th May 2016

Before : The Hon. Mr. Justice R. S. S. Sapuvida

ORDER

[1] This is an ex parte notice of motion filed by the plaintiffs dated 06th May, 2016 for immediate orders for restraining and/or refraining the defendant and/or her agents and/or employees from disposing off the subject property being Certificate of Title No. 38295 being Lot 2 on deposited plan No. 9511 land also known as Waqadra (part of) in the District of Nadi and in the island of Viti Levu [the property].

[2] The application is supported by the affidavit of Devendra Prasad and Chandra Kiran [the plaintiffs].

[3] Counsel for plaintiffs supported the ex parte notice of motion on 10th May, 2016.

[4] The plaintiffs have annexed marked documents “A” to “O” with their affidavit. They have also filed the writ of summons and the statement of claim.

[5] According to the plaintiffs’ statement disclosed in their affidavit in support with regard to the proprietorship of the property in dispute, the registered proprietor of the property is the defendant. It is also revealed that the defendant is the Aunt of first named plaintiff by relationship. [Annexure marked “A” is a copy of the certificate of title to the property].

[6] In or about the year 1996, the defendant has invited the plaintiffs to reside in the property in dispute without paying any rental since the defendant was planning to migrate overseas, and assuring the plaintiffs that they can reside in the property for lifetime with a condition to keep the property well maintained and to carry out any renovations if required.

[7] However, there is no written promise or undertaking given by the defendant to that effect.

[8] The plaintiffs have moved into the property on or about 19th October 1996. The property was not in a proper condition for living and required urgent maintenance, the plaintiffs claim.

[9] The plaintiffs further assert that they carried out maintenance of the property at their own costs and they developed the property.

[10] The defendant had come to Fiji in the year 2010 and informed the plaintiffs that she has executed her Last Will and testament [Annexure “B”] on 19th May 2010 whereby she directed the trustee to compensate the plaintiffs in the sum of $15,000.00 (Fifteen Thousand Dollars) each and/or build another residential property on another land for them to reside in if for any reason they are asked to vacate the subject property.

[11] The defendant as a further assurance on the above, as the plaintiffs allege, has signed a letter [Annexure “C”] dated 2^nd day of August, 2010 whereby it stated that plaintiffs can have the residential property for lifetime without paying any rental and should the defendant ask them to leave the subject property then the defendant and/or the beneficiaries and/or Trustees (whichever is applicable) will compensate the plaintiffs with $15,000.00 (Fifteen Thousand Dollars) each and/or build another residential property on another land for them to reside.

[12] Even though, the plaintiffs are claiming that the annexure “C” is an irrevocable authority given by the defendant securing the plaintiffs’ right to possess the property, yet it is just a single-page, self-explained, and handwritten document which is purported to have prepared and given to the plaintiffs by the defendant.

[13] Nevertheless, sometimes in January, 2015 the defendant has informed the plaintiffs verbally that she intends to sell the property and for them to vacate the property.

[14] The plaintiffs are further asserting that upon relying on the promises and/or assurances and/or the irrevocable authority of the defendant they did not invest in any other property and do not have any other place to go or to buy a land and build a house as all their savings were/ and has been invested in the maintenance and in the upkeep of the property.

[15] However, on the 17^th June, 2015 plaintiffs were served with a notice(the notice) [Annexure “E”] to vacate in which the defendant required vacant possession of the property within 30 days and further stated that the defendant had revoked all the authority or permission given to the plaintiffs by the defendant.

[16] The notice to vacate dated 17^th June, 2015 further stated that after the expiry of the notice, rental will be charged to the plaintiffs at the rate of $100.00 (One Hundred Dollars) per week which plaintiffs.

[17] In the meantime, on the 4^th August, 2015 another notice [Annexure “F”] to vacate was served on the plaintiffs to give vacant possession within the next 7 days and for them to remove forthwith the Caveat they had earlier registered against the property.

[18] Through the notice dated 4^th August, 2015 the plaintiffs were given a chance to buy the subject property in the sum of $345000.00 (Three Hundred Forty Five Thousand Dollars).

[19] Plaintiffs are alleging that the defendant at all material times knew that plaintiffs could not afford to pay the purchase price as they had invested all their savings in the upkeep and maintenance of the subject property.

[20] This is how the plaintiffs have been paying the yearly town rates levied by the Nadi Town Council since 2011 in the sum of $1,770.51 (One Thousand Seven Hundred Seventy Dollars and Fifty Once Cents) and particulars of which are as follows:-

5/1/2011 Invoice # 42403 $ 325.87

1/1/2012 Invoice #45103 $ 381.86

1/1/2013 Invoice # 47801 $ 354.26

1/1/2014 Invoice # 50499 $ 354.26

1/1/2015 Invoice # 53211 $ 354.26

Total $1,770.51

[21] On the 10^th of September 2015 the plaintiffs were served with a Notice of Distress for Rent [Annexure “H’’] dated 8^th September, 2015.

[22] Then they have realized that the defendant had authorized a registered Bailiff to levy Distress to Rent for the unpaid alleged rent as per the notice dated 17^th June, 2015 in the sum of $1,200.00 (One Thousand Two Hundred Dollars) together with other costs.

[23] The plaintiffs allege that they have also further invested in the subject property by changing the roof, painting both inside and outside, changing of interior ply, changing of electrical wires, switches and other maintenance required for the upkeep of the property and have spent approximately $68,400.00 (Sixty Eight Thousand Four Hundred Dollars) since being in occupation for the past 19 years of the subject property. Particulars of which are as follows:-

Repair and Maintenance Claim Calculations

Estimated repair and maintenance cost per month $300.00

Calculations of total number of months

No. of years 19

No. of months in a year 12

Total no. of months 228

Plus no. of months (multiply) 228______

Total repair and maintenance claim $68,400.00

[24] The current value as plaintiffs claim at which the defendant is selling the subject property is in the sum of $345,000.00 (Three Hundred and Forty Five Thousand Dollars) is due to the hard work and dedication that plaintiffs showed towards maintaining the subject property as the defendant promised the plaintiffs that they could reside in the subject property as long as they wish to reside, they further assert.

[25] The second named Plaintiff claims that she would not have been under the false promises and representation of the defendant and unemployed now, but had she employed, she would have earned the following income (calculation in minimum wage rate):-

Wages Claim per week calculation

Minimum wage rate

1996 $1.65

2015 $2.34

Average of Wages Rate $2.00

Total Claim payable

Average wage rate3 $2.00

Hours per day 8

No. of days in a week 6_____

Total wages per week $95.76

Total no. of pay periods calculations

No. of years 19

Frequency of pay 52 weeks

Total pay period 988

Total wages calculation

Wages claim per week $95.76

No. of pay periods 988____

Total wages claim $94,610.88

Add FNPF claim Employer $ 7,568.87

Total Claim $102,179.75

[26]The plaintiffs on the 28^th of September, 2015 have received a notice from the Registrar of Titles dated 2^nd September, 2015 for removal of the Caveat lodged by the plaintiffs. Annexure “J” is a copy of letter dated 28^th of September, 2015 from the Registrar of Titles.

[27] It is revealed that the defendant filed proceedings for vacant possession at the Lautoka High Court on 7^th October, 2015. [Action No. 169 of 2015 – Annexure “M” is a copy of Originating Summons dated 7^th October, 2015]

[28] The plaintiffs have filed a response to the application filed by the defendant seeking vacant possession on the 21^st day of October, 2015 and a hearing date has been assigned in the matter being 20^th May, 2016. [Annexure marked “N” is a copy of affidavit in response filed by the plaintiffs]

[29] The plaintiffs in their affidavit state that they have been informed and/or advised that the subject property has been sold by the defendant and that her action of selling the property constitutes a breach of process as the eviction proceedings before the Master of the High court of Lautoka is yet to be heard and a ruling to be delivered accordingly.

[30] On the above foundation, the plaintiffs are seeking injunctive reliefs against the defendant as per their above styled ex parte notice of motion.

[31] It is unassumingly admitted by the plaintiffs that there is a pending action instituted by the defendant before the Master of the High Court, Lautoka, against the plaintiffs for vacant possession of the property filed on 07th October, 2015.

[32] The plaintiffs in the instance are the defendants in the case No. HBC 169 of 2015, pending before the Master.

[33] The application filed by the defendant in HBC 169 of 2015 for vacant possession of the property is scheduled to be taken up for the hearing before the Master of the High Court on 20th May, 2016.

[34] It is prima facie evident that the whole claim of the plaintiffs in the instance is based on damages for improvements made to the property in dispute by the plaintiff against the defendant.

[35] The plaintiffs have already assessed the damages and or the claim against the defendant who possesses the registered proprietorship to the property as per paragraph 20, 23 and 25 above.

[36] It appears to me that the plaintiffs in this matter are trying to curb the proceedings pending before the Master by filing the present application before this court to try and get a restraining order against the defendant which will in some manner jeopardize the process before the Master.

[37] Be that as it may, when the case of the plaintiffs against the defendant in this case is closely observed, it is clear on the face of it they have assessed the damages against the defendant.

[38] The very basic principle of injunction law is that the claimant is not entitled for injunctive relief for which damages are the proper remedy.

[39] The only option left for the plaintiffs against the defendant in this case is to prosecute the claim for damages against the defendant if the plaintiffs have bona fide made the improvements to the disputed property as they so claim.

[40] On the forgoing reasons, I refuse to grant the injunctive relief pleaded by the plaintiffs in the ex parte notice of motion dated 06th May, 2016 against the defendant.

[41] The case is referred to the Master’s Court for necessary steps.

R.S.S.Sapuvida
Judge
High Court of Fiji

On the 11^th day of May 2016
At Lautoka