Baiju v Kumar [1999] FJHC 20; Hbc0298j.98s (31 March 1999)

Fiji Islands - Baiju v Kumar - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 298 OF 1998

EN:

:

BAIJU
f/n Merhai
Plaintiff

AND:

JAI KUMAR
f/n Ram Shankar
Defe

Mr. S. Chandra fo Plhe Plaintiff
Mrr> Mr. Muaror Kafoa for the Defendant

JUDGMENT

This is the plaintiff's summons under Or. 113 of The High Court Rules 1988 seeking an order for vacant possession of a portion of the land occupied by the defendant being the property of the plaintiff and another comprised in Native Lease known as Vunibua 5 (part of) containing an area of 3 acres 1 rood 3 perches in the district of Naitasiri in the Island of Viti Levu (hereafter referred to as "the land").

The action commenced as an application by the plaintiff as co-lessee of the land under s.169 of the Land Transfer Act Cap. 131 but then it was withdrawn and substituted by an application under the said Or 113. The matter then proceeded to hearing in Chambers accordingly.

Plaintiff's submission

The plaintiff's counsel submits that the plaintiff is the registered proprietor (lessee) of the said land on which is erected a residential dwelling-house. The defendant has been occupying a portion of the house and land as a 'licensee' and he was served with notice dated 30 April 1998 to deliver vacant possession of the land but he has refused to do so.

The plaintiff says that the defendant is the youngest child of his (plaintiff's) father-in-law Ram Shankar whom he allowed to live in his converted bulk store "so that his three young children could attend school". That resulted in NLTB charging him 'penal rent' in addition to the normal rent which he paid until his father-in-law's children grew up and started earning money. The Plaintiff then paid the penal rent to assist his father-in-law who died on 1 January 1995.

For the reasons set out in his affidavit the plaintiff says that he had verbally asked the defendant in the past to vacate the land as he is also earning sufficient to find accommodation for himself.

The defendant he says has no equitable interest in the land. The tenancy of the land is 20 years from 1.7.80 expiring on 1.7.2000 under ALTA (vide Annexure 'A' to Plaintiff's affidavit filed 8.6.98). The defendant has fenced part of the property without the plaintiff's permission.

The plaintiff says that the provisions of ALTA do not apply to the defendant for neither of them were given permission to cultivate the land nor did the defendant do any cultivation. He has no legal right of claim under ALTA.

The plaintiff further argues that the total area of the land is 3 acres 1 rood 3 perches of which he himself is entitled to only half. The other half belongs to his late brother Ram Narayan and his successors. Therefore the land falls within the exemption under s.3(1)(a) of ALTA.

Counsel says that the alleged payment of rent was penal rent payable on behalf of the Plaintiff and that does not create a tenancy in the defendant.

Defendant's submission

The defendant says that the land has NLTB approval from 1970 to 1980 and for a further period of 20 years from 1.7.80. That there are five dwelling-houses on the land and not just one as the plaintiff has deposed.

The defendant says that he came on the land when the plaintiff granted his father and his family including the defendant permission to occupy a portion of the land in 1974. He and his brother have from 1974 to 1987 been paying rent to N.L.T.B. directly (vide Annexure J to Plaintiff's affidavit of 8.7.98); and from 1988 to 1998 it was agreed with plaintiff the defendant pay appropriate proportional rent directly to NLTB for the piece of land he occupied.

The defendant says that he is advised that notice to quit is defective as it contravenes the provisions of Agricultural Landlord and Tenant Act Cap. 270 ("ALTA"). He had on 31 August 1998 made an application to the Agricultural Tribunal for a formal declaration of tenancy. He says that he has been on the land for 30 years now and that his father and family built the home which he occupies.

The defendant says that he is there with the consent of the owner of the land. Hence Or 113 does not apply to him. He says that there is one other person who is the legal owner of the land and it is "improper for the second legal owner not to be included as a party to these proceedings".

Determination of the issue

This action is brought under Or 113 of The High Court Rules which inter alia in Rule 1 reads as follows:

"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order."

The question for Court's determination is whether the plaintiff is entitled to possession under this Order. To decide this the Court has to consider the 'scope' of the Order. This aspect is covered in detail in The Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:

"This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers." (emphasis mine)

As to the application of this Order it is further stated thus:

"The application of this Order is narrowly confined to the particular circumstances described in r.1. i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593."

This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:

"this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto."

I have carefully considered all the affidavit evidence adduced in this case and the written and oral legal submissions from both counsel.

The facts as I have found them are that the defendant came on to the land with his father as a child and has lived there continuously for thirty years and made improvement to the house he is occupying. He has even paid the "penal rent" for the plaintiff (see Annexure J to Plaintiffs affidavit of 8.7.98). Now after so many years of him occupying the land as a 'licensee' (term used by plaintiff), he is being evicted under Order 113 which as already stated is applicable inter alia, to a 'trespasser'.

The facts do not reveal that the defendant is a trespasser on the land. He continued living there as a licensee even after his father's death in 1995. The notice to quit dated 30 April 1998 which was given to him does not state that he is a trespasser; it says "your father has since passed away and you had become a nuisance in my land, and that you without any approval decided to allocate yourself a block of my land".

The defendant has vigorously opposed the application to evict him under Order 113. I agree with the Mr. Kafoa, the learned counsel for the defendant, that the defendant and his father entered upon the land in 1970 with the plaintiff's consent and has lived there all along ever since. It was, agreed between them that the defendant's father will pay the penal rent which he did followed by payment by the defendant after the death of his father.

On the facts of this case, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.

Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others (1972) 3 All E.R. 629 squatters and trespassers are defined as:

"he is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can ....."

There GOULDING J. said that:

".....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession....."

Another definition of "trespasser" is as set out in CLERK & LINDSELL ON TORTS (15th Ed. 1982) page 631:

"A trespasser is a person who has neither right nor permission to enter on premises".

Also as was said by LORD MORRIS OF BORTH-Y-GEST in BRITISH RAILWAYS BOARD v HERRINGTON [1972] UKHL 1; (1972) A.C. 877 at 904:

"The term 'trespasser' is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another's land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers".

I agree with Mr. Kafoa that the defendants father and his children gained possession of the land only after the plaintiff had given his consent in or about 1970 and for that matter, the physical fact of the defendant's occupation is that of acquiescence on the land. I refer to SIR FREDERICK POLLOCK'S statement in the case of BROWNE v DAWSON [1840] EngR 898; (1840) 12 Ad. & El 624 where he said:

"..... A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner...."

The defendant's counsel has raised one other point and that is that the plaintiff is not the sole lessee of the said land and therefore it is improper to issue notice to quit on his own accord without the endorsement of the other joint owner or his legal representative.

I agree with this contention of the counsel for it was held by HAMMETT PJ in KANJI JOGIA and OTHERS v BHAGWANDAS HARGOVIND AND OTHERS 12 FLR 180 that: "a notice to quit given by only two of the three lessors was ineffective to determine the lease".

I would say that Order 113 is akin summary procedure under s169 of the Land Transfer Act Cap. 131. It is an effective and speedy relief to property owners in cases where tenants or other persons have no right to continue to stay in possession.

As can be seen from the evidence before this Court that the defendant maintains that he has the right to stay on the land whereas the plaintiff disputes it. There are triable issues and these cannot be resolved in a summary manner by affidavit alone. The following statements from the Court of Appeal case of AMBIKA PRASAD f/n Ram Piyare and SANTA WATI f/n KALI CHARAN, BISSUN DEO f/n Jag Deo (Civ. App. No. 38/95s) which concerned s169 are apt to suit the circumstances of this case:

"Whether or not the appellant had an equitable interest and whether or not there was fraud by the respondents in the manner alleged are matters which are disputed by the respondents in their affidavits. These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial."

To conclude, for these reasons particularly because of the dispute as to possession between the parties it is not possible to make the order sought in the summons without going to trial.

In these circumstances I could either make an order dismissing the Summons or order that this action be entered for trial like a writ action. Before making an order in this regard I would like both counsel to address me on this. The costs of this action is to be borne by the plaintiff to be taxed if not agreed.

D. Pathik
Judge

At Suva
31 March, 1999

Hbc0298j.98s