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Mateiwai v Ravuya [2012] FJMC 33; Civil Case 109.2009 (28 February 2012)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 109/09

BETWEEN:

VATIMI MATEIWAI
of C/- Mucunabitu Iron Works, Valelevu.
[Plaintiff]

AND:

BULOU MERE RAVUYA
of Lot 11 Naveiwakau, Nasinu.
[Defendant]

For the Plaintiff: Ms. Nemani S Tuifagalele.
For the Defendant: Messrs Tuberi Chambers

Judgment
--------------------

1] By writ of summons the plaintiff commenced this action against the Defendant to recover of vacant position disputed land in this case. Facts of the Plaintiff's case are as follows;

2] The Plaintiff being the registered lessee and/or owner of property described as Naveiwakau Subdivision Stage 1 Lot 67 comprised in Native Lease No. 23354, Native Land Trust Board reference number 4/3/3876 . The Defendant has entered onto and is in occupation of land known as NAVEIWAKAU SUBDIVISION STAGE 1 LOT 67 comprised in Native Lease No. 23354 located at Valelevu. The Plaintiff also says that the Defendant holds no title from the Plaintiff entitling her to occupy the land hence her occupation is without any color of right. He further says that he had duly served on the Defendant a notice dated 27th July 2009 to vacate the said land on 21st July 2009 which she refused to accept; the Plaintiff has further requested the Defendant orally to vacate the land because the Plaintiff needed to settle on it but the Defendant have refused to do so and continues to remain in occupation of the same to date; As to cost the Plaintiff said that he has spent about $100.00 in transportation costs in going to see the Defendant about vacating the house hence it has been an expensive exercise which the Defendant has no regard of.

3] WHEREFORE THE PLAINTIFF PRAYS FOR ORDERS:

1. An order for the Defendant to vacate the land forthwith;
2. Transport expenses of $100.00;

100. Costs of this proceeding limited to the jurisdiction of this Court.
     

4] The Plaintiff filed this Writ of summons it was served to the defendant. Instead that the Defendant filing the statement of Defence, She filed Affidavit in Opposition. The Plaintiff then filed the affidavit of response to that opposition.

5] On 14th December 2010, the case was fixed for hearing on 02nd August 2011. The Defendant was iven over 8 months to prepare for the Defence. But On the said trial date, the Defendant counsel was not present and sought a date as he could not get the practicing certificate for this year. The court refused the application, but on the same date subjected to $50 cost the hearing date was vacated. On 04th November 2011 matter called again. It was mentioned to fix a hearing date. Both parties were present and both counsels were also present. Then Parties agreed to file evidence in chief by way of affidavits and thereafter parties to cross examine the witness/ deponent. On 10th January 2012, case was called to fix cross examination date. But the Plaintiff informed that the Defendant has not filed any affidavit. But the Plaintiff filed supplementary affidavit. There was no representation for the Defendant and the Defendant was also not present in court. Since there is no application to cross examine the Plaintiff close the case and Court fixed this matter for Ruling/judgment today.

6] This court has no jurisdiction to decide the ownership of the land. But the plaintiff asked to eject the defendant who is in unlawful possession and recovery of possession. Section 16 of the Magistrates Court Act (Cap 16) gives the Jurisdiction to hear civil suits. I reproduce section 16(1) for clarity.

"16.-(1) A resident magistrate shall, in addition to any jurisdiction which he may have under any other Act for the time being in force, have and exercise jurisdiction in civil causes-

(a) (i) in all personal suits arising out of any accident in which any vehicle is involved where the amount, value or damages claimed, whether as a balance claimed or otherwise, is not more than three thousand dollars;

(ii) in all other personal suits, whether arising from contract, or from tort, or from both, where the value of property or the debt, amount or damage claimed whether as a balance claimed or otherwise, is not more than two thousand dollars;

(b) (i) in all suits between landlords and tenants for possession of any land (including any building or part thereof) claimed under any agreement or refused to be delivered up, where the annual value or annual rent does not or did not exceed two thousand dollars;

ii) in all suits involving trespass to land or for the recovery of lands (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time 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);"

7] In this case the plaintiff filed the case of recovery of land. He does not ask any decision regarding ownership. The Defendant did not file any statement of defence. But they filed Affidavit of opposition. I reproduce that opposition for the clarity.

"I, Bulou Mere Ravuya of Lot 11 Nayavumata Road, Naveiwakau, Nasinu, Domestic Duties, make oath and say as follows:

1. THAT I am the Defendant in this action and in as far as the contents of this affidavit are within my personal knowledge, they are true and in as far as they are not within my personal knowledge, they are true to the best of my knowledge information and belief.
   
2. THAT I was legally married to Kasari Seru on the 5th day of February, 1979. A copy of the Certificate of Marriage is annexed herewith and marked Annexure "BMR 1".
   
3. THAT we have six children, two (2) of which have married, two (2) are above the age of maturity and two (2) are still attending school. Of the two that are still attending school, the older is a boy and is at Form 3 at Ratu Sukuna Memorial School and the younger one is a girl and is at Class 7 at Gospel Primary School, Valelevu, Nasinu.
   
4. THAT Kasari Seru aforesaid is the older brother of the Plaintiff who is the registered proprietor of the land described as Naveiwakau Subdivision, Stage 1, Lot 67 as shown on Lot 11 on SO. 1080. The said land has a registered Native Lease No. 23351 and a copy of the same is annexed and marked Annexure "BMR 2".
   
5. THAT Kasari Seru and I were separated in the year 2003 and we finally divorced on the 26th day of August, 2006. A copy of the Certificate of Final Dissolution of Marriage is annexed and marked Annexure "BMR 3".
   
6. THAT after our said divorce Kasari Seru then married the woman he was living in defector relationship with. He came home with the wife and informed me that I should vacate the said property as he and his wife were coming to live in the said house.
   
7. THAT I then applied to the Family Court at Nasinu for an order to restrain Kasari Seru from evacuating me and my children from the said property and he was further ordered and restrained from going anywhere within 50 meters of the said house. A copy of the said order is annexed and marked Annuxure "BMR 4".
   
8. THAT Kasari Seru and me started living in the said house since 1992. The said house was built by Kasari Seru as the matrimonial home to our family.
   
9. THAT our eldest son the late SAKEASI SELAMU BABAKOBAU joined the British Army and married CAMARI ADIVONOKULA BABAKOBAU. Mr. Babakobau died in action in Afganistan in 2008 and is survived by the said wife and two (2) children.
   
10. THAT in the year 2008 my said daughter-in-law informed me that the Plaintiff had borrowed some money from her. I informed my solicitor about the matter and he wrote to my said daughter-in-law.
    
11. THAT my daughter-in-law wrote back in her letter dated the 12th day of March, 2010 wherein she confirmed that in the year 2008 my said daughter-in-law sent the sum of Four Thousand Fiji Dollars (FJD$4000.00) to the Plaintiff for the purpose payments of council tax arrears and land lease. A copy of the said letter is annexed herewith and marked Annexure "BMR 5".
    
12. THAT the said letter clearly stated that money aforesaid was sent for the purpose of helping me and my children and this means that my family has contributed to paying towards the lease arrears.
    
13. THAT I have obtained a statement of rent payment from the Native Land Trust Board (hereinafter referred to as "the NLTB") and the same showed that a Rent Payment was made on the 17th day of September, 2008 in the sum of Three Thousand Dollars (FJD$3000.00). A copy of the said Statement of Lease is annexed herewith and marked Annexure "BMR 6".
    
14. THAT on the Summary Sheet of the said Statement of Lease, it shows that the Opening Balance as at 2/10/2009 was $0.00. This shows that the overdue land rates had been paid fully on the 17th September, 2008 and 19th September, 2008.
    
15. THAT I have been advised and verily believe that the contribution paid on our behalf has established that we have an interest in the land because I have been further advised but for our contribution aforesaid the Plaintiff's lease in the said land would have been cancelled by the NLTB.
    
16. THAT before my said late son died as aforesaid, the Plaintiff used to benefit from monies sent to him by my said late son.
    
17. THAT it was an understanding and the Plaintiff was told by my former husband that he should transfer the said land to my said late son and I verily believe that this was one of the reasons why my said late son was generous in sending money to the Plaintiff. I also verily believed that my daughter-in-law was generous in giving $4000.00 to the Plaintiff because of the understanding that my said late son would have the said land transferred to him.
    
18. THAT I verily believe that the arrangement aforesaid would keep the said land within the family as the Plaintiff is single and does not have any children.
    
19. THAT I verily believe that since my late son has died and that my said daughter-in-law has cleared the lease as aforesaid the Plaintiff has changed his mind when he realizes that he is no longer going to benefit from the loss of my said son.
    
20. THAT I verily believe that the Plaintiff's action has painted a bleak picture about his honesty, about his intentions in transferring the land to my late son. I have another son, PANAPASA BUADROMO BABAKOBAU, who is 23 years old and is currently working on the passenger liner "MV Pacific Sun" which is based in Perth, Australia. If the Plaintiff was genuine about his intentions he could transfer the said land to my said son.
    
21. THAT the dwelling house built on the said land in 1995 by my former husband was for our matrimonial and I and my family have been living in the said matrimonial since. I still have as aforesaid, my young children, namely, PAULIANI NENE, a male of 14 years and LATILETA LUTUMAKI, a female of 13 years and both as aforesaid are attending school. A copy of the Birth Certificates of the two children are annexed and marked Annexure "BMR 7" and Annexure "BMR 8" respectively.
    
22. THAT I have been advised and verily believe that the need for matrimonial home for the said children still exists and at this stage the said matrimonial home is the only home that the said children have. That I refer the Honorable to paragraph (5) of the Conditional Order of Dissolution of Marriage in our Divorce Proceedings, Action No. 05/NAS/0232 where it states that the Court was satisfied with the care, welfare and development of the children of the marriage who were still under age. A copy of the said conditional order of Dissolution of Marriage is annexed and marked Annexure "BMR 9".
    
23. THAT I verily believe that paragraph (5) of the said Conditional order stresses the necessity that the care and welfare of the children only be sustained if they continue to live in the said matrimonial house until they reach the age of maturity.
    
24. THAT alternatively my former husband, Kasari Seru, to provide a suitable dwelling house where the children can live until they each reach the age of maturity.
    
25. THAT in the circumstances I humbly pray to this Honorable Court to dismiss the Plaintiff's application and further that an order be made that the children to remain in the matrimonial house until they reach the age of maturity."
    

8] I consider the Plaintiff's claim and the defendant's opposition. The Plaintiff's affidavits and documents show that he is the legal tenant of said iTaukei Land. The Lease will expire on 31-12-2089. This proves by "VM1". The defendant were live and licensee of the Plaintiff (in fact the defendant's husband). But it was cancelled by the Plaintiff and "VM2" proves that live and Licensee was terminated and 30 days were given to vacate the premises as common law requires.

9] On the affidavit and documents of the defendant, It could be seen the Plaintiff's brother, one Seru Kasari is the ex-husband of the Defendant. The Defendant claimed her daughter in law sent $4000 to the Plaintiff to set off the arrears of Town Rates. It had not been clearly proved here but it has no weight for this action as it is another cause of action and has no lien to this land.

10] The Defendant situation is pathetic. But as a court of law this court cannot help to overcome this situation. On the other hand the Plaintiff has clear title and right to claim his land and the Defendant cannot say on it unlawfully.

11] As Edmund Burke noted "Next to love, sympathy is the divinest passion of human heart. However, sympathy is not the valid basis for determination of the important issues in cases and as judges it is our responsibility to do justice between the parties according to the law"( Quoted from Professor Priyani Soysa Vs Rienzie Arusucularatne [2001] 2 Sri Lanka Law Report 297 ) . This common law judgment is persuasive for me whatever my mind tends. Thus my hands are tight and whatever the defendant position, this court cannot give any chance or relief and the law to be administered.

12] This is a civil case and the plaintiff should prove his case balance of probabilities. By VM1 he proved she is the lawful tenant of this land. There is no reason for disbelieve it and the Defendant also did not contest the title. Therefore the plaintiff has legal right to recover his land. The defendant was his live and licensee and he had terminated that permission by VM2, therefore defendant has no right to stay this property against his will. I hold that the plaintiff has proved his case balance of probabilities.

13] I make following orders;

1. There will be judgment for the plaintiff against the defendant as plaintiff prayed in the statement of claim.
   
2. The Defendant to vacate the premises forthwith.
   

100. Application for transport cost by the defendant is dismissed.
     

4. Parties to bear their own cost.
   

Orders Accordingly.

On 28th February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate