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Deireragea v Kun [2019] NRSC 44; Civil Suit 53 of 2016 (13 December 2019)

IN THE SUPREME COURT OF NAURU
CIVIL JURISDICTION Civil Suit No. 53 of 2016

BETWEEN

Francis Deireragea and Connie Appi (nee Deireragea)

Plaintiffs

And:

Janci Kun and Theresea Kun
Defendants

Before: Khan, J
Date of Hearing: 9 December 2019
Date of Ruling: 13 December 2019

Case may be cited as: Deireragea and Appi v Kun

CATCHWORDS:

Civil claim – where the defendants were held to be trespassers – where the defendants built a house following their trespass – where the judgement stated that the court wanted an equitable resolution for the sake of family and community harmony – whether that gave the defendants a legal right to claim against the plaintiff.

APPEARANCES:

Counsel for the plaintiffs: V Clodumar
Counsel for the defendants: K Tolenoa

RULING

INTRODUCTION

1. Her Honour Crulci J (judge) delivered a judgement on 14 June 2017 a copy of which is annexed to this ruling for the sake of completeness.
   
2. At [52] of the judgement Her Honour stated that:
   

[52] The Court takes note of the significant sums (in the region of $55,000) that the defendant has expended; and in the interests of family and community harmony is prepared to consider submissions as to an equitable resolution of the sums outlaid.

3. Prior to making the suggestions contained in [52] of the judgement, the judge declared that the defendants did not acquire any rights over portion 84 ‘Atomo’ (portion 84) in Yaren District and had in fact trespassed on the land.
   
4. Following the observations made in [52] of the judgement, the defendants are now claiming a sum of $55,000 against the plaintiffs.
   
5. Despite declaring that the defendants did not acquire any rights, and had in fact trespassed onto portion 84, the judge did not make any orders for vacant possession and the defendants continued to occupy the dwelling house which they built.
   

INTER PARTE SUMMONS FOR PERMANENT INJUNCTION

6. Because no order for vacant possession was made the plaintiffs filed an inter parte summons on 12 December 2018 seeking an order for permanent injunction prohibiting the defendants, their families and their servants from entering on portion 84; the effect of this order, if granted would mean an order for vacant possession.
   
7. In determining the application for injunction and the claim for payment of $55,000 I wish to clarify that I will work within the parameters of the judgement.
   
8. The defendants filed a response on 4 April 2019 in which it is stated that it is their understanding that [52] of the judgement entitles them to be reimbursed in the sum of $55,000; and that once this amount is paid, they would vacate the house. On 6 May 2019 the defendants filed a notice of motion in which it raised the issue of res judicata and in support of that application the defendants filed an affidavit dated 6 May 2019 in which it is stated at [7], [8] and [9] as follows:
   

[7] That it is within my understanding that the said land ‘Atomo’ joint properties of two (2) families. The families i.e. plaintiffs’ families and the Mwareow families; and which therefore, the fate of the disputed and including the land area where the building is situated is to be decided by the two (2) families.

[8] That as of today I and my families still remain the tenants of the disputed land and the house; and are occupants of the house is as directed by Pastor Roger Mwareow and his families, who are also part owners of the land ‘Atomo’ situated in Yaren District.

[9] That I and my families have no plans to continue staying in the house and we are keen to move out of the premises as soon as we are fully reimbursed the AD$55 thousand that we have requested through the Supreme Court for the financial losses we had incurred during the erection of the building.

9. The defendants’ position is very clear in that they will vacate the house if they are paid the sum of $55,000; and that since portion 84 is owned by Mwareow and Samson families both families have to seek orders against them and Rev Roger Mwareow has directed them to stay on.
   
10. In respect of the matters raised above I refer to [50] of the judgement where it is stated:
    

[50] Therefore Rev. Roger Mwareow cannot of his own volition permit the defendants to use, build upon, conduct a business or otherwise exercise rights over land portion 84 unless he speaks for 75% of the landowners of the land.

And further at [53(3)] it is stated:

[53(3)] The plaintiffs as landowners are able to bring the matter before the Court where the defendants’ actions do not have the agreement of 75% of all the landowners.

So, what this means is that the action was properly bought before the Court and following on from that the plaintiffs are able to seek remedies against the defendants.

FURTHER NOTICE OF MOTION

11. In a notice of motion dated 11 June 2019 the defendants are seeking an order that the application for permanent injunction shall be put on hold until the defendants are paid the $55,000 as stipulated in [52] of the judgement.
    

COMMON STAND

12. The defendants common stand is that they will vacate portion 84 when they are paid the sum of $55,000 and this has been their stand right through since the judgement was delivered.
    

CONSIDERATION

13. Now let me examine the contents of [52] of the judgement where it is stated that:
    

[52] The Court takes note of the significant sums (in the region of $55,000) that the defendants have expended; and in the interest of families and community harmony prepared to consider submissions as to an equitable resolution of the sums outlaid.

14. The judge accepted that the defendants spent $55,000 which she found to be a significant amount of money, and she stated that ‘in the interest of family and community’ she is prepared to hear submissions for an equitable resolution. She was very careful in the choice of words when she stated that: ‘in the family and community interest’ and those words do not in my respectful opinion bestow any legal rights on the defendants to claim $55,000. The judge just wanted to maintain the family and community harmony and was prepared to hear submissions in the hope of an equitable resolution.
    
15. Unfortunately the parties are not able to reach any compromise and Mr Clodumar submits that the judge made a finding that the defendants trespassed on to portion 84; and then carried out construction of the building (which they claim cost $55,0000); that the construction followed an illegal entry and that the construction itself was unlawful, and they are not entitled to any relief let alone an equitable relief. Mr Clodumar relies on Capelle and Partners Pacific Occidental v Tom^[1] where it is stated at [35] as follows:
    

[35] The leasing was ‘absolutely void and of no effect’. The entire transaction was unlawful and therefore the plaintiff did not acquire any status as a tenant and consequently the plaintiff is not entitled to claim $141,510 by way of special damages as equity cannot ‘lend its aid’ to an unlawful transaction. The claim is dismissed.

16. Mr Tolenoa made an attempt to distinguish the case Capelle and Partners and others but the fact remains that the defendants by the finding of the judge were trespassers and building was built following the trespass.
    

CONCLUSION

17. For the reasons given above I order that the defendants are not legally entitled to claim $55,000 from the plaintiffs.
    
18. I am satisfied that the plaintiffs are entitled to a permanent injunction as per the inter parte motion dated 12 December 2018 and I make an order for permanent injunction in the following terms:
    

A permanent injunction is granted to the plaintiffs prohibiting the defendants, their immediate families, servants, agents and builders from entering the land ‘Atomo’ portion 84 in Yaren District and are further restrained from doing anything on the said land.

19. The plaintiffs are entitled to the costs of the proceedings brought before this court since the date of the judgement which is summarily assessed in the sum of $1,500.
    

DATED this 13 day of December 2019.

Mohammed Shafiullah Khan
Judge

^[1] [2019] NRSC 17; Khan J