Richard Blasé aka Richu v. Indra Wati

• Jurisdiction: Fiji
• Judgment Date: 22 March 2016
• Date: 22 March 2016
• Docket Number: CIVIL APPEAL NO. HBA 6 OF 2015
• Counsel: Mr N S Khan for appellant,Mr N Nawaikula for respondent
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

CIVIL APPEAL NO. HBA 6 OF 2015

IN THE MATTER of an Appeal from the Decision of the Tavua Magistrate's Court, in Civil Action No. 43 of 2014.

Between:

Richard Blasé aka Richu of Yasiyasi, Tavua, Self-employed

Appellant (Original Defendant)

v.

Indra Wati as administrator of the estate of the late Babu Ram of Vuniboboga Yasiyasi, Tavua, Self-Employed

Respondent (Original Plaintiff)

Date of Hearing: 27 January 2016

Date of Judgment: 22 March 2016

Counsel:

Mr N S Khan for appellant

Mr N Nawaikula for respondent

Solicitors:

Nazmeem Lawyers for the Appellant

Niko Nawaikula for the Respondent

JUDGMENT

Introduction

[01] This is an appeal against a judgment of the Magistrate's Court of Tavua delivered in its civil jurisdiction.

[02] On 4 September 2015 the court granted a stay pending determination of this appeal on execution of the judgment that is challenged in this appeal.

[03] At the hearing, both parties orally argued the appeal and they also tendered comprehensive written submissions. I am grateful for both counsel for their effort in compiling handy submissions.

Grounds of Appeal

[04] The appellant preferred to appeal to this court on the following grounds:

Ground 1- The learned Magistrate erred in law in Hearing the matter in the Magistrate's Court and in not striking the matter out for want of Jurisdiction as a Magistrate's Court had no Jurisdiction to hear the matter as the Defendant had challenged the title of the Plaintiff's land over which the Defendant resides and/or his right to occupy the land on the basis that it was not the Plaintiff's land he was residing on but State Land thus the Judgment ought to be set aside.

The Appellant relied on Section 16(2) of the Magistrates Court Act (Amendment) Promulgation 2007 that says that – a Magistrate court shall not exercise jurisdiction “in suites wherein the title to any right or office is in question”

Ground 2- The Learned Magistrate erred in Law and in Fact in not considering and/or properly considering and/or properly directing its mind to all the documents tendered by the Defendant to the Honourable Court in his Defence and relied upon by the Defendant and none of those had even been referred to as Exhibits which out to have been.

Ground 3- That the Learned Magistrate erred in Law and in Fact in not considering and/or properly considering and/or properly directing its mind to all the documents tendered by the Defendant at the hearing of the matter as that would have established that the Defendant is not residing on the Plaintiff's land.

Ground 4- That the Learned Magistrate erred in Law and in Fact in not being vigilant and/or providing sufficient guidance and/or assistance and/or directions to the Defendant during the Hearing of the matter when the Defendant was unrepresented.

Ground 5- That the Learned Magistrate erred in Law and in Fact by coming to Judgment without and/or properly, scrutinising or examining all the documents tendered by the Defendant in determining the validity of the Defendants Defence in the matter which have also not been marked as Exhibits.

Ground 6- That the failure by the Learned Magistrate in not considering and/or properly considering scrutinizing or examining and/or properly directing its mind to all the documents tendered by the Defendant at the Hearing of the matter was unfair and/or unjust and against the interest of Justice.

Ground 7- That the Learned Magistrate was biased in not considering and/or properly scrutinizing or examining and/or properly directing its mind to all the documents tendered by the Defendant at the Hearing of the matter.

Ground 8- That the Learned Magistrate erred in Law and in Fact in holding that there was no evidence tendered by the Defendant to show that the land he was occupying did not belong to the Plaintiff but the State when the Defendant did produce such documents showing that.

Ground 9- That the judgment of the Learned Magistrate in all the circumstances of the case was unfair and/or unjust and/or biased and against the interest of Justice.

Ground 10- That the Learned Magistrate erred in Law and in Fact when he held that the ownership of the land could be attributed to the Plaintiff merely because the Defendant had been paying rent to the Plaintiff's husband.

Ground 11- That the Learned Magistrate erred in Law and in relying on certain High Court decisions tendered by the Plaintiff as Exhibits when the facts of those cases were totally different from the present case.

Ground 12- That the Defendant reserves his right to add further Grounds of Appeal and/or amend the present Grounds of Appeal upon receipt of the Court record.

Facts

[05] As the executrix Indra Wati, the respondent (original plaintiff) launched an action in the Magistrate's Court at Tavua against RICHARD BLASE aka RICHU, the appellant (original defendant) and sought vacant possession of the property. The appellant is in occupation of the property. The respondent states that the appellant came into occupation as a tenant. In her statement of claim she averred that her husband is the last proprietor of the land by virtue of an Agricultural Lease being instrument of tenancy NLTB No: 4/4/279. She was represented by a lawyer throughout the proceedings at Magistrate's Court.

[06] The appellant appeared in person in the Magistrate's Court. He filed his statement of defence and counterclaim by himself.

[07] In the statement of defence the appellant stated inter alia that, the defendant denies paragraph 1 of the plaintiffs claim (paragraph 1 of the claim, claims that plaintiff's husband is the last proprietor of the property) and has issues against it. And further submits that the land with title NLTB no 4/4/279 as stated by the plaintiff not the subjected land in which the defendant and his family resides in. The appellant counterclaimed the sum of $40,000.00 as compensation for all suffering and costs of various claims filed against him.

[08] The respondent in the reply to defence and counterclaim stated some new facts which he failed to state in the statement of claim. The new facts raised in the reply to defence and counterclaim were that, the defendant was their labourer and cane cutter and used to work on our cane farm. Later he became fisherman and started to pay rent for the house at $140.00 per month. The defendant stopped paying rent when my late husband died 3 years ago.

[09] At the trial in the Magistrate's Court, the respondent gave evidence through her attorney (Ashwin Pratap) and the appellant also gave evidence. In evidence the appellant stated that, the plaintiff is giving false statement and the house belongs to him (respondent) and the land does not belong to the plaintiff as it is government land. The learned Magistrate gave judgment for the respondent and ordered that the appellant should give up vacant possession of the said land within 21 days. He also ordered summarily assessed costs of $350.00. The appellant appeals the judgment.

The issue at Appeal

[10] The appeal concentrated on the question of the jurisdiction of the Magistrate's Court to grant vacant possession of the land to the respondent in an action wherein the right of title was an issue. The appeal also concentrated on the question that whether the Learned Magistrate was correct in giving judgment for the respondent considering the evidence that...