Wati v Shankar [1995] FJHC 26; Hbc0053j.94b (27 January 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 53 OF 1994

IN THE MATTER of an Application under Section 169 of Part XXIV
of the Land Transfer Act Cap 131 for an Order for Vacant Possession

Between:

NITYA WATI
d/o Jwala Prasad
Plaintiff

- and -

1. HARI SHANKAR
s/o Madho
2. JAI NARAYAN
s/o Hari Shankar
3. BHAN PRATAP
s/o Hari Shankar
Defendants

Mr. A. Sen for Plaintiff
Mr. A. Kohli for Defendants

JUDGMENT

By Summons dated 25 October 1994 Plaintiff is applying for an Order for vacant possession of premises occupied by defendants on Native Lease No. 9355 containing 0.1012 hectares, Lot 75 on Plan M 2099 known as Nabukarabe Subdivision in the District of Labasa, Province of Macuata (hereafter referred to as the "said land")

The application is made under section 169 of the Land Transfer Act, Cap. 131 (hereafter referred to as the "Act").

Briefly, as deposed in the Plaintiff's affidavit, the facts are that: the Plaintiff is the registered proprietor of the said land; on 8 November 1989 in Civil Action No. 166/88 (Magistrate's Court, Labasa) the matter of possession was settled between the same parties and the court record in this regard states: "Plaintiff to leave the house to defendants who will pay rent at the rate of $20.00 per month until the latter finds a place; plaintiff to leave before 1/12/89"; the defendant occupies a concrete and iron dwelling-house erected on the said land; on 23 March 1994 a Notice to Quit was served on the defendants; the defendants have failed to vacate the said land.

In Reply to the said affidavit the defendants have deposed, inter alia, that: "they are there in terms of the said settlement and they have acted upon it to their detriment"; they were "brought on to the said land by one Jawala Prasad the previous proprietor who had promised the first defendant and his family to live on the land for life" and "relying on such representation" they made "substantial improvement on the said land" and the Plaintiff is therefore estopped from evicting them.

Both counsel made verbal submissions before me in support of their arguments.

Mr. Sen argues that in the absence of consent of Native Land Trust Board any purported "settlement" in the Magistrate's Court is void. He says that there is no lawful tenancy with the defendants.

On the other hand Mr. Kohli submits that since there was this 'settlement' it is binding on the Plaintiff. He agrees that prima facie without consent the dealing is illegal and void, however, he submits that the parties are not bound by s12 if they agree and here there is an order of Court.

Therefore, he says, it is incorrect to say that s12 has not been complied with.

For the purpose of determining the issue before me the following sections of the Act are relevant.

"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) ...

(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."

"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:"

Under the said s172 the onus is on the defendants to show cause why they refuse to give possession and why an order for possession should not be made against them in this case.

The facts in this case can be summarized quite simply and on the material facts there is no dispute that the plaintiff is the registered proprietor of the said land and this entitles her to bring this action under the said section s169. The fact that notice to quit has been served on them, has not been questioned.

The question is whether the defendants have shown cause to remain in possession or not.

I find that they have not. The only reason they give are that:(a) they were brought there 28 years ago by a former registered lessee (the father of the present registered lessee according to Magistrates Court record tendered to court) (b) that the first defendant (father of the other defendants) was promised that he could "live on the said land for life" (c) that there was a settlement between the parties herein to continue to occupy the said land until they find a place to live.

All these grounds, namely, (a), (b) and (c) do not amount to cause on the facts of this case within the meaning of s172 to enable the Court to let the defendants remain in possession.

The said land is Native Land and under s12(1) of the NATIVE LAND TRUST ACT CAP 134 Laws of Fiji Vol VIII the consent of the Board is required for dealing with the said land. The said section 12 (1) reads as follows (in so far as it is relevant):

"12 - (1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing affected without such consent shall be null and void:

Provided that nothing in this section shall make unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease."

In this case there is no evidence of any consent having been obtained either by the previous registered lessee or by the present lessee (the Plaintiff). This was a dealing with the said land by the previous lessee and without the consent it was null and void. The defendants have continued to occupy the said land (which they said they have occupied for 28 years), their occupation is therefore unlawful, null and void. Even in the case of the present lessee the situation has not been regularised by obtaining the necessary consent. The fact that there was a settlement of the sort referred to hereabove, this does not make lawful that which was unlawful ab initio and hence I reject outright Mr. Kohli's argument in this regard.

From the affidavit evidence it appears that on the one hand the defendants by virtue of the said 'settlement' wanted to occupy the said land until they found another place, yet on the other hand they say they were brought there to live for life and therefore they should be allowed to remain. This stand on their part is irreconcilable. Be that as it may, although it does not affect the lack of consent, there is no indication that they have been making payment of $20 rent per month or that they have made any attempts to find another place for themselves to live.

In the circumstances of this case they cannot be regarded as the lawful tenants of the said land in the absence of consent. Even if one were to regard it a licence to occupy because of the said "settlement", it was still a "dealing" which required the consent of the Director of Lands. In a similar situation their Lordships in the Privy Council case of CHALMERS v PARDOE (1963) 3 AER 552 said that

"the transaction amounted to an agreement for a lease or sub-lease but even regarding it as a licence to occupy coupled with possession, their Lordships considered that a "dealing" with the land took place." (GOULD V P in JAI KISSUN SINGH v SUMINTRA 16 FLR p.165).

The defendant's in order to fortify their situation did not take any steps at all if they were genuine in their assertion that they were going to be on the said land for life. They had 28 years within which to do something in this regard but they did nothing; and the only improvement they made was to the extent of $530 as set out in the Statement of Defence in Civil Action 166/88 (Magistrate's Court, Labasa). This is the extent of their detriment which they talk about in their said affidavit.

The situation therefore is and I do so find that as the registered proprietor and having served the required notice to quit on the defendants the latter not having shown cause to remain in possession the Plaintiff is entitled to the order for vacant possession sought by her.

The fact that the alleged original transaction was illegal and subsequently under the "Settlement" the defendants continued in occupation, do not in any way affect the Plaintiff in so far as her right to claim possession is concerned for as KERMODE J in RAM KALI f/n Sita Ram and SATEN f/n M. Maharaj (Action No. 93/77) said:

"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands.

While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case." (underlining mine for emphasis).

That is the situation in this case and I am in full agreement with the above-quoted passage.

Also, in the Privy Council case of AMAR SINGH v KULUBYA (1964) A.C. 142 the principle there applied was that a plaintiff can recover what he has transferred under an illegal contract if he can frame his action upon some independent and lawful ground.

The KULUBYA case was also a case where no consent was obtained to the dealing, similar to the case before me. Thereafter the defendant had been in possession for several years the Plaintiff gave notice to quit and they sued him for recovery of the land. He succeeded and it was held:

"that the appellant was not, and never had been in lawful occupation of the lands and could not rely on the illegal agreements as justifying any right or claim to remain in possession, and without doing so he could not defeat the respondent's claim. The respondent required no aid from the illegal transactions to establish his case; it was sufficient for him to show that he was the registered proprietor of the lands and that the appellant, a non-African, was in occupation without the consent of the Governor, and accordingly had no right to occupy."

In the outcome, for the reasons given hereabove I find that the defendants have not shown cause to the satisfaction of the Court a right to the possession of the said land and therefore I order the defendant to deliver immediate vacant possession of the said land to the Plaintiff but execution to be stayed for 2 months from the date hereof with costs against the defendants which are to be taxed if not agreed.

D. Pathik
Judge

Suva
27 January 1995

HBC0053J.94B