Tamavua-i-wai eviction victims appeal called before Justice Chandra
An appeal action between 26 appellants and the Australasian Conference Association Limited was called yesterday. The matter was called before Justice Suresh Chandra at the Court of Appeal.
The 26 appellants and their families from Tamavua-i-Wai land were evicted after their houses were dismantled and displaced in December, 2019.
Appellant counsel, Nemani Tuifagalele, on behalf of the appellants had filed a stay of execution by the High Court writ of possession order to dismantle and displace their homes from the land purported to be owned by the respondents (Australasian Conference Association Limited for the Seventh-Day Adventist Church in Fiji). Mr Tuifagalele highlighted 12 houses have been demolished so far and house owners and their property have been thrown out around December 2019, while 14 more houses would be affected.
A simultaneous application was filed at the Court of Appeal, which yesterday to challenge the ruling of the High Court made in 2016. Respondent’s counsel, Mareta Tikoisuva from Howards Law, sought time to file their response in the matter.
Mr Tuifagalele was given 14 days to file his response.
The appeal out of time application has been adjourned to March 10, 2020 to review theß parties’ compliance of orders.
The High Court stay application will be called on February 5, 2020.
The grounds of appeal are:
■ That the learned Judge erred in fact and law by failing to consider once the judgment was issued on January 31, 2007, the court becomes functus to issue any further judgment from then on including the judgment issued on October 7, 2016.
■ The learned judge erred in law and in fact by continuing to preside over the proceeding after it delivered its judgment on January 31, 2008, as it does not possess any power from thereon as its being functus.
■ The learned judge erred in fact and in law by failing to consider that the judgment of January 31, 2007, was a final judgment and the only option available to the respondent is to file an appeal to the Court of Appeal.
■ The learned judge erred in law and in fact by failing to direct the respondent to file an appeal and since no Court of Appeal proceeding was instituted, the collateral proceedings including any judgment or ruling post January 31, 2007 is deemed null and void.
■ The learned Judge erred in law and in fact when it sealed the order of the Judgment of October 7, 2016, yet failed to consider that some of the named defendants are dead and none of the deceased next of kin or appointed administrators or agents replaced them as parties to the proceedings.
■ The learned judge erred in law and in fact when the writ of possession granted and issued on October 18, 2019, included those who died which resulted in one of the deceased house being removed and/ or dismantled in the process.
Tuifagalele highlighted 12 houses have been demolished so far and house owners and their property have been thrown out around December 2019, while 14 more houses would be affected.