Housing Authority v Ravono [1992] FJHC 31; Hbc0130d.92s (14 August 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NOS. 130 to 134, 137; 141, 145 and 146,
148 and 149; 158, 160, 162 and 164 of 1992

Between:

HOUSING AUTHORITY
Plaintiff

- and -

1. WAISALE RAVONO
2. SEKONAIA RANAMILA
3. PRAKASH SINGH
4. MAHENDRA PRASAD
5. SERU SAUKIDROVE
6. SATBHAMA WATI
7. MADHAVAN GOUNDER
8. GAYA PRASAD
9. SUBHAS CHAND MAHARAJ
10. KAMLA PRASAD
11. PADMA KUMARI
12. RAJ DEO NARAYAN
13. TULSI RAM
14. CEMA DRIVER
15. DURGA PRASAD
Defendants

Mr. V. Maharaj for the Plaintiff
Mr. J. Flower for the Defendants

RULING

Although there are some 15 defendants in these separately numbered actions there is only one applicant and a single title document. It is convenient therefore for the Court to render a single ruling.

The applicant in these proceedings is the Housing Authority and the application is brought under Section 169 of the Land Transfer Act (Cap. 131). In particular the Housing Authority claims as the registered lessee, vacant possession of various parcels of land occupied by named defendants and comprised within the land boundaries of its Crown Lease No. 296022.

The Housing Authority is a statutory body constituted under the Housing Act (Cap. 267) charged inter alia with power:

"(a) to acquire land or buildings or any estate ... and to develop the same as a building estate by the erection, construction, ... of dwelling houses and gardens, recreation parks and other works ... for the convenience of persons occupying such dwelling houses;"

It is common knowledge that the Housing Authority caters for what has been called 'the lower-income earner' by the provision of low cost dwelling-houses on housing estates.

In this regard the Housing Authority as the registered lessee of the land in question seeks vacant possession of the land so as to enable it to develop and subdivide a housing estate on the aforesaid land which is situated at Caubati, in the Nasinu area.

More particularly the Housing Authority seeks to enforce its claim to vacant possession in terms of a Notice to Quit dated the 25th of March 1992 which it has served on each of the defendants requiring each of them to deliver up vacant possession within 7 days.

It is common ground that none of the defendants have complied with the 'Notice to Quit' and all continue to occupy the various parcels of land in question.

Before dealing however with the affidavits filed by the defendants it is significant to note that the physical location of some of the defendant's existing houses falls in many instances across the boundaries of two or more lots in the proposed sub-division and in some instances on a proposed road or access way.

Needless to say in such instances short of re-aligning the proposed boundaries or roadway the defendants' houses must be removed, furthermore since all the defendants houses are randomly scattered throughout the land if their houses were permitted to remain undisturbed, the development of the proposed sub-division would become a 'piece-meal' affair with the inevitable increases in project costs.

Inconvenience to the Authority however no matter how serious or costly is no ground for granting an order for vacant possession if it is not properly brought within the terms of Section 169.

I am satisfied however from the affidavits and annexures filed on behalf of the Housing Authority in these applications that it has made out a prima facie case for vacant possession.

The defendants however have also filed affidavits in an attempt to 'show cause' why they are refusing to give up possession of the land. In order to do so however Section 172 of the Land Transfer Act (Cap. 131) requires each of the defendants to prove to my satisfaction "a right to the possession of the land ..."

In this regard learned counsel for the defendants has sought to invoke the protective provisions of the Agricultural and Landlord Tenant Act (Cap. 270) (hereafter referred to as 'ALTA') by an examination of the previous titles to the land which it is undisputed comprised several agricultural leases granted by the Lands Department to several of the defendant's predecessors on the land.

In Lotan v. Douglas Garrick Civil Appeal No. 45 of 1984 the Fiji Court of Appeal said of a similar argument:

"Before a judge can entertain the possibility that there is cause for refusing to give up possession because of the pendency of an ALTA application, the occupant must point to some evidence worthy of evaluation by an Agricultural Tribunal. This is the threshold question.

To hold otherwise would be to allow sham defences for the purposes of delay."

In this case none of the agricultural leases have been produced but in any event all appear to have been cancelled as from the 31st of December 1987 by an appropriate notice from the Director of Lands.

Neither have any of the defendants produced appropriate applications under ALTA for a declaration of tenancy nor have they described themselves as farmers, cultivators or market gardeners or deposed to practising any form of agricultural husbandry on the land. Indeed with the exception of a self-employed defendant all appear to be engaged in one form or other of paid employment quite unrelated to the land which they occupy.

From the paucity of evidence provided I am not at all satisfied that the defendants have established a threshold claim to relief under the provisions of ALTA.

Learned counsel for the defendants quite properly conceded that the defendants were not disputing the plaintiff's title to the land but rather they were looking to the plaintiff to honour the promises made by the Director of Lands in his Cancellation Notice where it says:

"You will be issued direct leases by the Housing Authority once the development is completed."

With all due regard to learned counsel's submission in the absence of 'fraud' (which is not alleged) there is no legal basis to support such a submission. In any event the issuance of direct leases was expressly made conditional upon the completion of development works which is precisely what the Housing Authority is seeking to do on the land.

Then all the defendants have deposed to the "financial difficulties" they are likely to face from having their homes demolished but whilst one can sympathise with their predicament, personal hardship is no reason for refusing an order for vacant possession.

In the result the defendants having failed to establish any right to possession of the land and accordingly there will be an order for possession in the plaintiff's favour.

D.V. Fatiaki
JUDGE

At Suva,
14th August, 1992.

Hbc0130d.92s