Lum v Stoddart [1994] FJHC 133; Hbc0377j.94s (30 September 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0377 OF 1994S

IN THE MATTER of an Application for possession of Land under
Section 169 of the Land Transfer Act (Cap. 131).

Between:

CHAN LUM and
WONG CHOW LAN
Plaintiffs

- and -

RAYMOND STODDART and
PATRICIA STODDART
Defendants

Mr. A. Rana for the Plaintiffs
Mr. S. Parshotam for the Defendants

JUDGMENT

By Summons dated 24 July 1994 one of the Plaintiffs CHAN LUM through his Attorney FUNG CHU LEONG under Power of Attorney is applying to Court requiring the defendants to show cause why they should not give up immediate possession to the Plaintiffs of the Plaintiffs' property which the defendants are occupying being all that land comprised and described in Certificate of Title No. 10909 being Lot 1 on Deposited Plan No. 2643 and dwelling thereon being Flat No. 1 of which the Plaintiffs are the registered proprietors (hereafter referred to as the "property").

This application is made under s.169 of the Land Transfer Act (hereafter referred to as the 'Act').

Under s.172 of the Act the onus is upon the defendants to satisfy the court that they have a right to the possession of the land.

Mr. Parshotam argues firstly that because the affidavit by the attorney has been filed only on behalf of one of the registered proprietors it "nullifies" the affidavit; and secondly by not stating on whose behalf it is filed contravenes Or.41 r.9(2) of the High Court Rules which states that:

"Every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not indorsed may not be filed or used without the leave of the Court". (underlining mine)

Mr. Parshotam is not unmindful of the fact that the affidavit can be used with the "leave of the Court". In regard to his above two grounds he refers the Court to FATIAKI J's judgment in LILA WATI & ORS AND ALITIA VAKARAUBULA C.A. 139/94 and BA TOWN COUNCIL v FIJI BROADCASTING COMMISSION & ORS 22 FLR p.91 I find that both these cases do not affect the issue before me on the facts of this case. I therefore see no merit in his arguments.

On the evidence before me I am satisfied that the Plaintiffs are the "last registered" proprietors of the land and therefore there is no need for me to require the Plaintiffs to produce the title at the hearing as suggested by Mr. Parshotam. However they have produced a certified true copy of same at the time of writing this judgment.

Mr. Parshotam also argues that the "judge may make any order and impose any terms he may think fit" under s.172 of the Act which provides inter alia as follows:

"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:....." (underlining mine)

In this regard the learned counsel for the defendant referred the Court to the following passage from the judgment of GOULD V.P. in AZMAT ALI and MOHAMMED JALIL s/o Mohammed Hanif (Action No. 44/81 FCA cyclostyled judgment at p.8).

"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit". These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown". (underlining mine)

In the light of the above passage Mr. Parshotam is asking the Court bearing in mind "justice and circumstances" of the case to exercise its discretion taking into account the defendants' difficulties particularly when they have nowhere to move to until their new house is completed and having so many members of the family to accommodate if they shift temporarily. He also asks the Court to consider the Plaintiffs' conduct in blocking the entrance to the flat and garage by placing a digger right at the entrance. Despite all this, he says, the defendants have made no song of it. The defendants are asking for extension of time till 31 December 1994 to vacate the property.

The Court sympathises with the situation the defendants are in and this kind of situation is nothing unusual in tenancy matters as difficulties and inconvenience do arise at some stage of tenancy. Legally the Plaintiffs are in a stronger position than the defendants. The defendants have been given a proper notice to quit; some 14 weeks have gone by and they are still in the property without any indication that they have looked for new accommodation. The Plaintiffs need vacant possession as they are well on the way to transferring the property whereas the defendants are merely wanting to remain there to suit their convenience until their house is completed; in any case there is no clear indication that the house will in actual fact be completed by 31 December. Even that will not in my view make any difference to the Plaintiffs' right to possession.

The situation before me is not one, looking at the interests of both parties, which warrants the Court making "any order" such as the one the defendants expect so that they could be allowed to remain in the property until 31 December 1994. The defendants if I may say so are clutching at straws to prevent an Order being made against them. The alleged conduct of the Plaintiffs in creating a nuisance by blocking the entrance to the flat if it is true no doubt leaves much to be desired but it is not such as to enable me to refuse them the order sought in the Summons and "justice and circumstances" do not permit me to do otherwise.

On the evidence I am not satisfied that the defendants have shown cause to remain in possession. They are, in a nutshell, praying to Court to let them remain in possession for another few months until 31 December 1994 when their house is expected to be ready for occupation. This can hardly, in the circumstances of this case, be regarded a "cause" to enable me to either dismiss the action or make "any order" under s.169 procedure.

In the outcome, for the above reasons, I find that the defendants have not shown cause to my satisfaction for the purposes of proceedings under s.169 as to why they refuse to give possession of the property in question.

The Plaintiffs are therefore entitled to an order for vacant possession of the property comprised and described in Certificate of Title No.10909 being Lot 1 on D.P. No. 2643 and dwelling thereon being Flat No. 1. and I do so order with execution stayed for 3 weeks from the date of personal service of the order upon the defendants. The defendants are to pay the costs of this action which are to be taxed unless agreed.

D. Pathik
Judge

Suva
30 September, 1994

HBC0377J.94S