Kumari v Singh [2024] FJCA 143; ABU0037.2023 (26 July 2024)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CIVIL APPEAL NO. ABU 37 OF 2023
(On an appeal from the High Court of Fiji
at Suva in Civil Action No: 269 of 2022)

BETWEEN:

CHANDRA KUMARI and SMITA KUMARI SINGH of 9 Sese
Street, Samabula as Executors and Trustees of the Estate of Shant Kumar
APPELLANTS
(Original Plaintiffs)

AND:

DIWAN SINGH of 15 Sese Street Samabula, Suva
RESPONDENT
(Original Defendant)

Coram : Mataitoga, RJA
Qetaki, JA
Morgan, JA

Counsel : Ms. G. Fatima for the Appellants
Mr K. R. Prasad for the Respondent

Date of Hearing: 8 July, 2024
Date of Judgment: 26 July, 2024

JUDGMENT

Mataitoga, RJA

[1] I concur with the reasons and the conclusion of Qetaki, JA’s judgment.

Qetaki, JA

Background

[2] This is an appeal against the decision of Justice Deepthi Amaratunga at the High Court, Suva, delivered on 31 day of March 2023 where the learned Judge dismissed the Appellants’/Original Plaintiffs’ application by Originating Summons made pursuant to Order 169 of the Land Transfer Act 1971 (“the Act”), Order 29 of the High Court Rules and the Inherent Jurisdiction of the High Court.

[3] In the application the Plaintiffs had sought the following Orders:

1. The Defendant to show cause why an Order for immediate vacant possession should not be made against the Defendant for any further occupation of that part of the Plaintiffs property known as15 Sese Street, Samabula, Suva and comprised and described in Lease No.19528 Samabula Indian Settlement Lot 6, Section 5, Plan No. S603A in the Province of Rewa and District of Suva containing 0 acres 1 rood and 14 perch (“the Property”);
2. An Order for immediate vacant possession of the Plaintiffs property comprised and described in Lease No.19528 Samabula Indian Settlement Lot 6, Section 5, and Plan No. S 603A in the Province of Rewa and District of Suva containing 0 acres 1 rood and 14 perch (“the Property”);
3. An Interim Injunction against the Defendant to prevent the property from being damaged or any fixtures from being removed and Interim Order for preservation of the property until the final determination from this Honourable Court; and

(a) The costs of the application to be paid by the Defendant to the Plaintiffs; and

(b) Any other such Orders this Honourable Court may deem just and expedient.

[4] The said application is supported by an Affidavit of Smita Kumar Singh the Second Named Plaintiff one of the Executors and Trustees of the Estate of Shant Kumar, made on behalf of the First Named Plaintiff who is her mother under and by virtue of the last Will and Testament of Shant Kumar. She deposed (pages 16 to 18 of Record) to the following:

(a) The Plaintiffs are registered proprietors of all that property situated at 15 Sese Street, Samabula, and Suva and described in LeaseNo.19528 Samabula Indian settlement in the Province of Rewa and District of Suva containing an area of 0 acres 1 rood and 14 perch (“the Property”).

(b) The Defendant is one of the sons of the First Plaintiff and her brother.

(c) That erected on the said property is a substantial dwelling house which is currently occupied by the Defendant and his family.

(d) The Defendant has continued to make threats and intimidation against the Plaintiffs and also kicked the First Plaintiff out of her family home.

(e) The Defendant has also continued to make threats and level abuse against the Plaintiffs.

(f) The Defendant does not have any interest in the said property at the present time and only upon the First Plaintiff’s death he will have a 25% interest in the said property.

(g) On the 7^th day of July 2022, the Plaintiffs caused a Notice to Quit to be issued and served on the Defendant which was served on him on 13 July 2022.

(h) The time allowed in the said Notice had expired and the Defendant has still not vacated the said property. The Defendant still is causing a lot of problem on the property.

[5] She therefore prayed for an Order that the Defendant do forthwith vacate the said property.

[6] The Defendant in reply to the Plaintiffs Affidavit in his Affidavit in opposition, as far as relevant, stated;

“7. I deny the contents of paragraph 3 of the Plaintiffs Affidavit as they are not the registered proprietors of the property situated at 15 Sese Street, Samabula described in Lease No. 19528 (“the Property”) because the Plaintiffs have not effected transfer of the property unto themselves. The Plaintiffs have only registered the Transmission by Death by virtue of the Probate.

8. ......................
9. I deny the contents of paragraphs 6 and 7 of the Plaintiffs Affidavit and state that the First named Plaintiff left the property on her own free will.
10. I deny the contents of paragraph 8 of the Plaintiffs Affidavit because I am a beneficiary under my Father’s Will which is found in Annex “A” of the Plaintiffs’ affidavit. At paragraph 3 of the Will the property was given by my father to the appointed Executors (the Plaintiffs) to hold in trust for me and the other beneficiaries until we reach the age of majority. Because I am 40 years old now, I have a beneficial interest in the property.
11. ................
12. I admit the contents of paragraph 10 of the Plaintiffs Affidavit only to the extent of not vacating the Property and I deny that I have caused any problem on the property.
13. In light of above, I humbly seek the Plaintiffs Originating summons..... be dismissed with costs.”
    

The Facts

[7] The facts :

(a) The appellants /Original Plaintiffs) are executors and trustees of the estate of the late Shant Kumar.

(b) First Respondent/First Plaintiff is the wife of Sant Kumar, and holds residue of the estate of her late husband after payment of debts, funeral expenses and other testamentary expenses, as life interest.

(c) After death of the said life interest holder, the estate of the late Shant Kumar, devolves to his four children in equal shares.

(d) The Respondent/Defendant is a beneficiary to the estate as a child of the late Shant Kumar, his interest is contingent only to the life interest holder (First Plaintiff).

(e) The High Court action is instituted to evict Respondent /Defendant from a property belonging to the estate of late Shant Kumar, by the Appellants/ Plaintiffs as trustees of the estate.

(f) The Plaintiffs, as registered proprietors, are seeking eviction of Respondent/Defendant who is beneficiary, with a contingent interest, from Residential Lease No.19528, Samabula Indian Settlement (part of), Province of Rewa and District of Suva (the property). A Transmission by Death in the name of the Plaintiffs is last memorial of the Certificate of Title of the property.

(g) The Respondent/ Defendant is a tenant in common, along with the Second Appellant, and two other siblings in equal shares subject to the life interest of First Appellant.
(h) Defendant has attempted to show a right to remain in possession proportionate to his share of the property in terms of section 172 of the Land Transfer Act 1971, subject to life interest of his mother, who is yet to exercise her life interest.

Grounds of Appeal

[8] The Appellants rely on the following grounds of appeal:

Ground 1 -That the learned judge erred in fact and in law in holding that the Appellant Chandra Kumari was legally required to register her life interest against State Lease 19528 when her interest was already stated in the Will of Shant Kumar for which Probate No. 58143 had been granted and a Transmission by Death had been registered against State Lease No. 19528.

Ground 2 - That the learned Judge erred in fact and in law in holding that the Respondent had shown cause under section 172 of the Land Transfer Act.

Ground 3 - That the learned Judge erred in fact and in law in not making an Order for eviction against the Respondent.

The Law

[9] The Land Transfer Act 1971:

Section 2

“Instrument of title” includes a certificate of title, Crown Grant, lease, sublease, mortgage or other encumbrance as the case may be;

“proprietor’’ means the registered proprietor of land, or of an estate or interest therein.

Section 169

“169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant: -

(a) the last registered proprietor of the land;
(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made of the rent;
(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.’’

Section 170

“170.The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.”

Section 172

“172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit; Provided that the dismissal of the summons shall not prejudice the right of the Plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled: Provided also that in the case of a lessor against a lessee, if the lessee before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.”

High Court Judgment

Judge’s comments/observation that relate to section 169 of Land Transfer Act 1971 and particularly on the issue of who is the “registered proprietor” of the Lease:-

[10] Paragraph 8 trial judgment states:

“8. The Property belongs to the estate of late Shant Kumar and the latest memorial shows a transmission by death to the Plaintiffs as trustee.”

[11] Paragraph 9 of judgment states:

“9. There is no registration in the memorial of the Property as to the life interest of First Plaintiff. So Plaintiff cannot seek eviction of Defendant on the basis of unregistered right of First Plaintiff under section 169 of Land Transfer Act 1971....”

[12] Paragraph 16 of judgment states:

“16. Plaintiffs had instituted this action as joint trustees and, the basis on which this application for eviction is based on trusteeship of Plaintiffs, and not the unregistered life interest of First named Plaintiff....”

[13] Paragraph 18 of judgment states:

“18. It is not clear which trustee had given instructions, but affidavit in support of summons for eviction was from Second Defendant who is also a beneficiary of the residue of the estate. It is unlikely that the First named Defendant was the “trustee “who instructed on analysis of the evidence. She had remained neutral in this action instituted by one daughter against Defendant who is a son”.

[14] Paragraph 20 to 23 of judgment states as follows:

“20. While accepting the above legal position the action is only based on registration and there is no registered interest for life interest in favour of first named Plaintiff and no evidence that life interest holder desired to exercise her right over the property.

21. So, the only basis on which Plaintiffs seeking eviction are the registration of transmission by death as trustees of the estate of late Shant Kumar.
    
22. The issue is whether trustees can evict a beneficiary of the estate in summary manner under section 169 of Land Transfer Act 1971. This will depend on the circumstances of the case. In my mind such an action for eviction there will be many factors to be considered, including and not limited to improvements to the Property by beneficiary, and also reason for eviction.
    
23. According to affidavit in support sworn by second Plaintiff, first Plaintiff is also registered proprietor of Crown Lease No 21145A, which is not the subject matter of this action, so a reasonable query arises whether first named Plaintiff required the Property for her life interest and whether she wants Defendant to be evicted.”
    

Judge’s comments/observations relevant to “show cause” under section 172 of land Transfer Act, as follows:

[15] Paragraph 31 to 35 of judgment states:

“31. Defendant needs to “show cause” as to the reason for his refusal to vacate the premises in terms of section 172 of the Land Transfer Act 1971....

32. So Defendant is required to prove to the “satisfaction” of the court “a right to possession of the land”. This need not be a registered right. Defendant needs to prove to the court, “a right to possession”, which can arise from contingent right as tenant in common for 25% share of the Property.
33. ............................................................................
34. First named Plaintiff, can decide to obtain possession of the Property or to let Defendant to be in possession as he continued to do since birth. First Plaintiff can also renounce the life interest to the Property, and then, the trustees should take steps to transfer the Property to four beneficiaries, as tenants in common.
    
35. In the circumstances in my mind Defendant had shown a ‘right to the possession of the land’ based on his contingent interest of 25% of a land area of more than fifty four Perches, based on the facts submitted by affidavits.
    

Court of Appeal Act

[16] Section 12(1) (a) states:

“An appeal shall lie under this Part in any case or matter, not being a criminal proceedings, to the court of Appeal-

(a) from any decision of the High Court sitting in First instance, including any decision of a judge in chambers;”...........

[17] The powers of the Court in civil appeals are set out in section 13, as follows:

“13. For the purposes of and incidental to the hearing and determination of any appeal under this Part and the amendment, execution and enforcement of any order, judgment or decision made thereon, the Court of appeal shall have all the power, authority and jurisdiction of the High Court and such power and authority as may be prescribed by the Rules of Court.”

Appellants’ Case

[18] The Appellants in their written submissions dealt with the 3 grounds of appeal together. The Appellants submit that they had satisfied the criteria set out in section 169 of the Act. That the Appellants are the registered proprietors of the land (State Lease 19528) through Transmission by Death registered on the leasehold Property by the Registrar of Titles.

[19] The Appellants had issued a summons which complied with section 170 of the Act, the said summons contained a description of the land and required the respondent (the person summoned) to appear at the court on a day not earlier than 16 days after the service of the summons.

[20] Counsel for the Appellants argued that Chandra Kumari (First Appellant) has a life interest in the property in question. She was forcibly removed out of the property by the Respondent who has only 25% interest in the residue of the estate of Shant Kumar, deceased, after the First Appellant’s death.

[21] The Appellants are the last registered proprietors of the Estate of Shant Kumar, (State Lease 19528).That while the First Appellant is still alive, the residual interest of the Respondent Dewan Singh remains contingent, that is, the Respondent’s interests is subservient to the interests of the First Appellant. That contingent interest does not confer on the Respondent a right to ownership or occupation of the said land while the First Appellant is still alive.

[22] Further, it is argued that there is no legal requirement for the First Appellant to register her life interest against State Lease No.19528.Her life interest is clearly set out in the Will on which the Letter of Probate were granted.

[23] That the First Appellant has every right to enjoy the family home during her lifetime but she has been kicked out by her son, the Respondent/Defendant.

[24] On the issue of showing cause, Justice Mansoor in Young v Verma, HC Civil Action No.13 of 2019 stated as follows:

“20. The language in section 172 of the Act is unambiguous in that a Defendant named in a summons must show cause to remain in possession and defeat a Plaintiff’s application under the section. The phrase ‘’he may show cause’’ in section 172 would have mandatory force in the event a Defendant is intending to resist a Plaintiffs claim to possession of the land. Such Defendant must show to the satisfaction of the judge that he or she has a right to possession of the land, in which event the judge is required to dismiss the summons. Such dismissal though will not prejudice the right of the Plaintiff to bring fresh proceedings against a Defendant named in such summons. The parties are clearly at variance as to whether cause was in fact shown in Court on behalf of the respondents.’’ (Underlining is for emphasis)

[25] Dewan Singh (Respondent) did not have any valid ground to show cause. He had a no right to possession of the land at the material time. At the time the application was made he had no right to any interest in the land at all. His interest would only arise after the death of his mother. That is, his 25% interest will only kick in once his mother passes away. That in any event, he will only be entitled to a 25% interest in the estate and his right to occupy the property will even then be dependent on the wishes of the other 75% owners.

[26] The Respondent was being evicted for his reprehensible conduct against his elderly mother.

[27] That it was clear from the start that the First Appellant was a party to the eviction and she had authorised the same.

[28] The Appellants want the appeal to be allowed as his Lordship has made a clear error of fact and law on this issue.

Respondent’s case

[29] In opposing the grounds of appeal, the Respondent states:-

[30] Ground 1-That the ground is misconceived and lacks merit as the Court has not made any findings that the First Plaintiff /First Appellant was required to register her life interest in the property, although the Court has in fact considered that the Transmission by Death has been registered against State Lease 19528.The Respondent submits that the Court had merely distinguished the capacity or interest held by the First Plaintiff/First Appellant in her capacities as life interest holder against her other capacity as Trustee as evidenced through registration of the Transmission by Death. This is in order to address section 169 of the Land Transfer Act requirement as relates to the meaning of registered proprietor, being the person allowed to bring an action under statute. In doing so, the Court made a finding that as life interest holder, the First Plaintiff does not come within and not qualified under the meaning of registered proprietor capable of bringing an action-(page 7 of Record).

[31] The Respondent submits that the High Court dealt with the issues raised in ground 1 in pages 4 to 12 of the Judgment and highlighted provisions that the Court raised against the arguments made in ground 1 in support of the appeal as follows:

Paragraphs 9 to 21 of Judgment (pages 6 and 7 of Record of the High Court)

(a) Paragraph 9, presents that the High Court considered the law at section 169 of the Land Transfer Act 1971 to gauge from there the locus and capacities of persons who may bring an action to relief under the provision. It presents that the Plaintiffs do not qualify under the meaning of “registered proprietor “on First glance of the lease as the life interest is not registered.
(b) Paragraph 10, implores/outlines that by application of section 2 of the LTA 1971 on the word “proprietor’’.
(c) Paragraph 11 outlines that by application of section 2 of the LTA 1971, the Plaintiff have locus in qualifying the term “registered proprietor’’ within the meaning of section 169. The Court based the finding on the Transmission by Death registered on the lease.
(d) Paragraph 12 presents that the Court having implored section 2 of the LTA 1971 for the interpretation of the term “instrument of title’’.
(e) Paragraph 13 presents that the Court has analysed the lease then qualifies the interpretation of the word “instrument of title’’ to sufficiently be within the scope of the proceedings under the LTA 1971.
(f) Paragraphs 14 and 15 presents that the Court has analysed the purpose of registrations and the history wherefrom such registration process emanated.
(g) Paragraph 16 makes a finding that the Plaintiffs have instituted this action as joint trustees in the estate of late Shant Kumar and not in the capacity of the First Plaintiff solely as the life interest holder of the estate of Sant Kumar.
(h) Paragraph 17 presents reference to the exhibits in the Affidavit in support of the Originating Summons to crystallize the distinction that the action is brought by the Plaintiffs jointly in their capacities as Trustees and not by the First Plaintiff as life interest holder.
(i) Paragraph 18 presents that the Court has exercised diligence [save for substituting the reference to Plaintiffs with the Defendant, which appear to be a typo). The Court had approached the depositions of the Second Plaintiff in the evidence in support of originating summons with caution. The Court had observed and inferred in orbiter that it is likely that the action was instituted by the Second Plaintiff and the First Plaintiff remained neutral. This view is possible on the balance of probabilities given that the First Plaintiff has not given any authority to the Second Plaintiff to make depositions on behalf of the First Plaintiff.
(j) Paragraph 19 resonates the notice of 7 July 2022 to the Defendant.
(k) Paragraph 20 expressly states that the legal position to bring section 169 relief is by registration of interests. Life interest is not registered nor has there been any evidence that the First Plaintiff desired to exercise rights over property subject of the proceedings.
(l) Paragraph 21 emphasises that the ejector proceeding’s First element is qualified by the registration of the Transmission by Death instrument.

[32] Finally, on this ground, the respondent submits that the Plaintiffs ground 1 may have been based on a mistaken construction of the High Court’s comments at paragraph 44 of the judgment (page 11 of Record) when the Court stated, “.... life interest holder may register her life interest on the property as life interest holder in terms of section 169 of land Transfer Act 1971, but this is yet to happen. ’The appellants may have read in to this paragraph to allude to the error of law and fact. However, it is law that a life interest holder remains capable of registering a property interest where there is a renunciation or transfer of interest of those entitled to the property to the life interest holder. Respondent submits that paragraph 44 of Judgment, is a statement of fact which is qualified by paragraph 34 of the Judgment. It is not an error of fact, law or compulsion to the First Plaintiff.

[33] Ground 2, the respondent submits that the ground is also misconceived and it lacks merit in that it made the assertion that there is an error of fact and law but the Plaintiffs did not provide how that was so. Section 172 of the LTA 1971 was discussed in paragraphs 31 to 34 of the Judgment (pages 9 to 12 of Record), which the respondent analysed to have the following effects:

(a) Paragraph 31 and 32 where the Court considers section 172 of LTA 1971 and placing emphasis that the Defendant has proven to the satisfaction of the Court “a right of possession of the land”.

(b) Paragraph 33 outlines that the First Plaintiff has not elected to take possession of the property, nor has the Plaintiff issued notice of vacate the property.

(c) Paragraph 34 sets out the options considered by the Court which First Plaintiff could take to exercise the right to possess the property or to renounce the life interest and allow the contingent beneficiaries to proceed to register their interests.

(d) Paragraph 35 outlines that the Court considers that the Defendant and Second Plaintiff as contingent beneficiaries to the subject property based on the evidence filed in the proceedings.

(e) Paragraph 36 and 37 presents law in relation to contingent beneficiaries and trustees which allude to exercise of functions having fiduciary obligations and duties and not for self-interest.

(f) Paragraph 38 presents the fiduciary obligation to obtain consent of the remaining beneficiaries is not before the Court and consequently, there is no evidence provided on the remaining beneficiaries’ agreement to the Defendant giving vacant possession.

(g) Paragraph 39 and 40 presents the diligence of the Court in relying on the Trustee Act 1996 and recognising that the law binds it to render prominence to the Trustee Act 1966 over that of the LTA 1971.

(h) Paragraph 41 presents that the evidence before the Court qualifies conflict between the interests of the beneficiaries to the subject property-including the Defendant and Second Plaintiff which requires resolution by action pursuant to section 90 of the Trustee Act 1966- a consideration that cannot be given within the summary proceedings under section 169 of the LTA 1971.

(i) Paragraph 42 is a reproduction of section 90(1) of the Trustee Act 1966.

(j) Paragraph 43 is the ratio of the Court that there is substantial dispute of fact involving contingent interest of the beneficiaries and cannot be resolved within the limited confines of the summary application before the Court pursuant to section 169 of the LTA 1971.

[34] The respondent also submits that whilst the appellants in their submissions at paragraphs 25 and 26 alludes to the contingency interest ‘’will only kick in once his mother passes away”, the proposition is not supported by law as section 30 of the Wills Act 1972 states:

“30. A contingent or future specific or residuary device or bequest of property on trust for a person whose interest is contingent or executory, carries the intermediate income of that property from the date of death of the testator, except so far as the income may be otherwise disposed of.”

[35] From the above provision of the Wills Act, it is clear that whilst the life-interest holders’ entitlement is current, the contingent interest holder too is entitled to income from the property from the date of death of the testator. It is only the registration as proprietor that will be delayed until the life-interest holder passes. The above section also supports the view that the First Plaintiff cannot assert absolute interest-to the exception of all other beneficiaries. The life-interest holder is bound to benefit in conjunction with other contingent interests holders unless the Will provides otherwise. Applying section 30 of the Wills Act 1966 to the Will of Sant Kumar, it is clear that the life-interest holder is not given exclusive beneficial interest. The contingent interest holders are not excluded from getting income apportioned from the estate. The only restriction from the contingent interest holders is the awaiting of the death of the life-interest holder to register proprietary interest.

[36] The above being the case, this ground of appeal cannot be substantiated and the Respondent has clearly shown cause (as contingent beneficiary) to have a right to remain in possession of the property subject to these proceedings. Respondent retains a proprietary interest in the estate from the date of death of the testator-he is only stayed from registering the proprietary interest until such time as the life-interest holder is deceased.

[37] Ground 3-Apart from the allegation that the Court erred in fact and in law, there was no supporting arguments to sustain the ground. The ground is not substantiated. It lacks merit. Taking the submissions made by the Respondents on grounds 1 and 2, it is submitted that it is clear, there was no error of law or of fact.

Analysis

Statutory requirements

[38] Section 169 (a) states:

“The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;
(b) ...................................................;
(c) .........................................................”

[39] According to the evidence, the Appellants are the last registered proprietors of the property (State Lease 19528) by virtue of a registered Transmission by Death in the Estate of Shant Kumar. “Proprietor” means the registered proprietor of land, or of an estate or interest therein-section 2 Land Transfer Act 1971.

[40] The Appellants being the registered proprietors had lawfully made an application by way of Originating Summons, summoning the Respondent who is in possession of State Lease 19528 to appear before a judge in chambers to show cause why the person summoned (the Respondent) should not give up possession to the Appellants/Plaintiffs, and in particular the First Appellant/First Plaintiff.

[41] Section 170 sets out the particulars or information that are to be stated in the Originating Summons. It states that:

“170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier that sixteen days after the service of the summons.”

[42] This section was complied with – see paragraph [3] above.

[43] It is a legal requirement in an action under section 169 that the person summoned, in this case the Respondent/Original Defendant ought to show cause why he /she should not give up possession to the Appellants /Original Plaintiffs. The Respondent/Original Defendant had not shown cause to the satisfaction of the Court that the Defendant had a right to possession; and it is established that a Transmission by Death of the Estate of Shant Kumar was registered on the relevant leasehold Property. The Appellants ‘names appear on the said leasehold title as the last registered proprietors of State Lease No.19528, and they have the capacity to issues the Originating Summons under section 169 of the Act.

[44] Section 172 requires that the Respondent show cause, and is discussed below.

Grounds of appeal, law and evidence

[45] Having fully considered the decision of the learned High Court judge , the grounds of appeal , the written and oral submissions of the Appellants and the Respondent, I am satisfied that the Appellants have established and satisfied the statutory criteria set out in sections 169, 170 and 172 of the Act.

[46] The First Appellant has a life interest in the property in question, that is (State Lease 19528). That fact was not and is not in dispute. Her life interest is clearly set out in her late husband Shant Kumar’s Will on which the Probate was granted. Also, I find that there is no legal requirement, as also conceded by Counsel for the Respondent, for the First Appellant to register her life interest as mistakenly determined by the learned judge to be an essential step to be taken by the First Appellant, to establish her status as registered proprietor, and capable of issuing an Originating Summons to eject the Respondent from her property.

[47] I find that the First Appellant/First Plaintiff had authorised the Second Appellant/Second Plaintiff to swear the Affidavit in support of the Originating Summons on her behalf .Also, that the Respondent had forcibly removed the First Appellant/First Plaintiff from her Property.

[48] The Appellants/Plaintiffs are the last registered proprietors of Sate Lease No. 19528 .I also find that the Respondent has a 25% interest in the residue of the estate of his late father Shant Kumar, and that the residual interest of the Respondent remains a contingent interest in the property while the First Appellant /First Plaintiff is still alive. Stated another way, the contingent interest will cease, and the 25% interest of the Respondent in the said lease will vest, on the date of death of her mother the First Respondent.

Respondent to “show cause”

[49] Section 172 of the LTA states:

“172. If the person summoned appears he or she may show cause why he or she refuses to give possession of such land and, if he or she proves to the satisfaction of the Judge a right to the possession of the land, the Judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he or she may make any order and impose any terms he or she may think fit, provided that the dismissal of the summons shall not prejudice he right of the Plaintiff to take any other proceedings against the person summoned to which he or she may be otherwise entitled, provided also that in the case of the lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor , the Judge shall dismiss the summons.”(Underlining is for emphasis)

[50] On the application of section 172 of the Act and especially the requirement that “he or she may show cause”, Justice Mansoor in Young v Verma and Others ,HC Civil Action No. 13 of 2019, explained the position adequately in paragraph 20 of his judgment, as follows:-

“20. The language in section 172 of the Act is unambiguous in that a Defendant named in a summons must show cause to remain in possession and defeat a Plaintiff’s application under the section. The phrase “he may show cause’’ in section 172 would have mandatory force in the event a Defendant is intending to resist a Plaintiff’s claim to possession of the land. Such Defendant must prove to the satisfaction of the judge that he or she has a right to possession of the land, in which event the judge is required to dismiss the summons.”

[51] Being the person in possession and occupation of State Lease No. 19528, who has been served with the Originating Summons and the Affidavit in Support, and appearing for the hearing of the summons, the Respondent /Defendant is required to show cause why he should not give up possession to the Appellants. This the Respondent/Defendant had attempted to do in the High Court, which explanation was in my respectful view, mistakenly accepted as satisfying the threshold , by the learned judge in paragraphs 31 to 35 of his judgment, and particularly in paragraphs 34 and 35 thereof-see paragraph [15] above.
[52] I accept the Appellants submission that the learned judge had erred in law and in fact in his conclusion. The Respondent has no existing right to possession in the said lease. His interest (25%) jointly with others in equal shares, will accrue and vest on the death of the First Appellant who is still alive. Counsel for the Respondent, on insistent questioning by the Court, would appear to have conceded that the Respondent had no right to possession of the said lease. The Respondent has a contingent interest in the Property contingent on the death of his mother the First Appellant. The Respondent ought to vacate and give up possession immediately.

Conclusion

[53] The grounds of appeal raised by the Appellants have merit. The Judgment of the learned Judge in the High Court is set aside. The Respondent has not satisfied the Court that he has a right to possession in terms of section 172 of the Act.

Morgan, JA

[54] I have read and concur with the reasoning and conclusions of Qetaki, JA.

Order of the Court:

1. Appeal is allowed.
2. Judgment of the High Court is Set-aside.
3. Respondent/Original Defendant to immediately give up possession of State Lease No. 19528.
   
4. Costs summarily assessed at $3000.00 to be paid by the Respondent/Original Defendant to the Appellants/Original Plaintiffs within 21 days from the date of judgement.
   

Hon. Justice Isikeli Mataitoga
RESIDENT JUSTICE OF APPEAL

Hon. Justice Alipate Qetaki
JUSTICE OF APPEAL

Hon. Justice Walton Morgan
JUSTICE OF APPEAL

Solicitors:
R. Patel Lawyers for the Appellants
Legal Aid Commission for the Respondent