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State v Cavukoro [2010] FJMC 3; Criminal Case 69.2008 (26 January 2010)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT VUNIDAWA
FIJI ISLANDS

Criminal Case No: 69 of 2008

STATE

V

JOSEVA CAVUKORO

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : Inspector Ali
Accused : Present – in Person

JUDGMENT

Introduction

The accused is charged with forcible detainer, Contrary to Section 100 of the Penal Code (Cap 17). It is alleged that Joseva Cavukoro between 1st January 1998 and 31st December 2007 at Naqara Village, Naitasiri in the Central Division whilst in possession of land and house without colour of right held possession of the said house which was likely to cause a breach of peace against the person entitled by law to be in possession of such land and house namely Apolosi Ragede.

The hearing for the case took place on 27th October 2009 in Vunidawa. The Prosecution called 3 witnesses. The accused gave evidence in his defence. He also called one other witness.

The Law and Analysis of the Evidence

Forcible detainer is covered by Section 100 of the Penal Code (Cap17) which provides that "any person who, being in actual possession of land without colour of right, holds possession of it, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person entitled by law to the possession of the land is guilty of the misdemeanour termed forcible detainer."

The prosecution in this case called the owner of the house and two other witnesses to prove the ownership of the house by the complainant and his family. The accused did not deny that the complainant owns and that they built the house. The accused however told the court that he was asked by one Apisalome for him to clean the house and occupy it. The accused also gave evidence that the house belongs to the complainant’s family. The complainant and his brother, Apisalome deny giving the accused authority to occupy their house.

This court notes the Native Lands and Fisheries Commission letter to the Prosecution dated 6th November 2009. This Court here quotes the relevant part "NLFC cannot really determine the ownership of land on which Naqara Village now sits until the Reserve Commission of the NLTB specifies the boundary of the 40 acres on the ground. For Mataqali Siko’s status within the Yavusa Nawadamu, is one of chiefly reign as head of Yavusa as specified in the final report Volume 4."

The status of the land is yet to be fully determined by NLFC. The complainants have built on the land and have their house on the land. They own the house which was built on the land before the accused took possession of it. He did not build the house. From the evidence the Court notes that no one from the complainant’s family give him permission to occupy the house.

The Court is satisfied beyond reasonable doubt that the prosecution has proved the charge of forcible detainer against the accused. The accused is guilty of the charge.

Chaitanya Lakshman
RESIDENT MAGISTRATE
Vunidawa

26/01/10