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

  Download original PDF

Prakash v iTaukei Land Trust Board [2024] FJHC 43; HBC57.2021 (23 January 2024)

IN THE HIGH COURT OF FIJI AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 57 of 2021

BETWEEN

JAI PRAKASH Koronubu, Ba, Cultivator.

PLAINTIFF

AND

iTAUKEI LAND TRUST BOARD a body corporate constituted under

Native Lands Trust Act, Laws of Fiji, being its registered office at

Suva, Fiji and carrying on its business at other

Branch Offices elsewhere in Fiji.

1^st DEFENDANT

AND

JAI PRAKASH Koronubu, Ba, Cultivator.

2^nd DEFENDANT

AND

SATISH KUMAR of Benai, Ba, Cultivator.

3^rd DEFENDANT

AND

ASHMEEN KUMAR SEN of Benai, Ba, Cultivator.

4^th DEFENDANT

Counsel : Mr. Rosa W. for the Plaintiff

Ms. Nauwakarawa K. for the 1^st Defendant

Mr. Gade for the 3^rd defendant

Mr. Patel D. for the 4^th Defendant

Date of Hearing : 06^th November 2023

Date of Ruling : 23^rd January 2024

RULING

[1] The plaintiff as the Lessee of within iTaukei Land Trust Board Reference Number 4/1/39754 being Registration Number 30703 dated 17^th September 2013 land known as Koronobu, Ba Subdivision Lot 61 on Ba 2133, in the Tikina of Bulu, in the Province of Ba having an area of 14 acres 32 perches, filed this action seeking the following reliefs:

(i) Damages and loss
(ii) General damages
(iii) Costs of this action;
(iv) 3^rd and 4^th defendants do give vacant possession of the plaintiff’s lease.
(v) Defendants do not deal in any manner with the plaintiff’s lease until finalization of this action.
(vi) Such any other orders as deems just and prudent to this Honourable court.
(vii) Interest on indemnity basis payable by all defendants to the plaintiff.

[2] The 4^th defendant filed his statement defence and counter claim and served it on the plaintiff on 26^th March 2021 seeking the following orders:

1. A declaration that the plaintiff holding the residential area occupied by the 4^th defendant on trust for the benefit of the 4th defendant.
2. A declaration that the plaintiff has surrendered all rights and title over the residential area occupied by the 4^th defendant.

100. An order that the plaintiff do all things necessary to allow the 1^st defendant to process the lease application of the 4^th defendant and issue a lease instrument to the 4^th defendant.

4. Costs on an indemnity basis.

[3] The plaintiff did not file the acknowledgement of service and statement defence to the counter claim. The 4^th defendant on 12^th November 2021 filed summons pursuant to Order 18 rule 3(4) and Order 19 rules 7 and 8 of the High Court Rules 1988 seeking the following orders against the plaintiff:

1. A declaration that the plaintiff holding the residential area occupied by the 4^th defendant on trust for the benefit of the 4^th defendant.
2. A declaration that the plaintiff has surrendered all rights and title over the residential area occupied by the 4^th defendant.
3. An order that the plaintiff do all things necessary to allow the 1^st defendant to process the lease application of the 4^th defendant and issue a lease instrument to the 4^th defendant.
4. That there be abridgment of time for filing and service of this application.
5. That costs to be awarded to the 4^th defendant on an indemnity basis.

[4] Order 19 rule 7(1) of the High Court Rules 1988 provides –

Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

Order 19 rule 8 of the High Court Rules 1988 provides –

A defendant who counterclaims against a plaintiff shall be treated for the purposes of rule 7 as if he were a plaintiff who had made against a defendant the claim made in the counterclaim and, accordingly, where the plaintiff or any other party against whom the counterclaim is made fails to serve a defence to counterclaim, those rules shall apply as if the counterclaim were a statement of claim, the defence to counterclaim a defence and the parties making the counterclaim and against whom it is made were plaintiffs and defendants respectively, and as if references to the period fixed by or under these Rules for service of the defence were references to the period so fixed for service of the defence to counterclaim.

[5] As averred in the affidavit in support of the 4^th defendant the plaintiff is his mother’s brother and the property was originally owned by plaintiff’s mother. The 4^th defendant and the family went into occupy part of the property in 2009 on the invitation of the plaintiff’s mother. The 4^th defendant hen constructed a dwelling house and it is now occupied by him and his family. The 4^th defendant avers further that in 2012 they discussed with the plaintiff and his mother the plaintiff’s mother agreed to surrender land and the 4^th defendant was to apply for a residential lease. Thereafter, the 1^st defendant had made an offer to the 4^th defendant and he had paid $1,150.00 as processing fees.

[6] In the affidavit in opposition the plaintiff states that they entered in to an agreement where the 3^rd and 4^th defendants agreed to pay $1,000.00 each and since the defendants failed to pay as agreed he withdrew the consent. Referring to the documents AKS 11 attached to the 4^th defendant’s affidavit in support the plaintiff says that the post office box number, mobile phone number and signature on the agreement dated 31^st July 2018 were not his.

[7] It appears that there are disputes relating to matters of fact between the parties which cannot be resolved summarily by affidavit evidence. It is advisable to decide this issue at the substantive hearing.

ORDERS

1. Summons filed by the 4^th defendant on 12^th November 2021 is struck out.
2. The counter claim of the 4^th defendant will be decided at the hearing of the substantive matter.
3. There will be no order for costs.
   

Lyone Seneviratne

JUDGE

23^rd January 2024