Singh v Mohammed [2001] FJHC 214; HBC59.2001 (13 July 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 59 OF 2001

IN THE MATTER of Section 169 of the Land Transfer Act 1971.

Between:

ANIL JATINDER SINGH
SUROME PREMINDER SINGH
KIRAN SARITA SINGH
Plaintiffs

And

SULEMAAN MOHAMMED
Defendant

Mr. G. O’Driscoll for the Plaintiffs
Mr. Tevita Fa for the Defendant

JUDGMENT

This is a s169 application by Summons dated 7 February 2001 for an order that the defendant show cause why he should not give up immediate vacant possession of part of land comprised in Certificate of Title No. 31888 being Lot I on DP.5818 comprising one hectare four thousand and seventy six square metres and which land is situated at Wailekutu, Lami (hereafter referred to as the ‘land’)

Plaintiffs’ submission

The first plaintiff has sworn an affidavit in his own behalf and on behalf of the other two plaintiffs. They are the registered proprietors of the land. They say that the defendant is a squatter who is unlawfully and illegally occupying part of the land and has refused and still refuses to vacate thus denying the plaintiffs the peaceful and quiet enjoyment of same. The defendant is a trespasser on the land as he does not have the consent or authority of the plaintiffs to occupy same.

The defendant has without the permission of the Lami Town Council erected an illegal structure on the land which he occupies as a dwelling house. A Notice to Quit was served on the defendant on 21 April 2000 but he has failed to vacate.

The plaintiffs are the registered proprietors of the land. There is no action before the Court challenging the validity of the Title by the head of Yavusa Navakavu who according to the defendant is the rightful claimant to customary fishing rights over part of the land.

Defendant’s submission

It is the defendant’s contention that whilst he acknowledges the existence of the said Title he says that ‘this is suspicious and unusual first because it involves foreshore and tiri land, secondly, it covers customary fishing rights areas which is owned by Yavusa Navakavu of Muaivuso Village’.

He says that he is living on the land by permission of the fishing rights owners (the boundaries are shown in Annexure ‘A’). And in Annexure ‘B’ is a copy of note dated 29.1.1995 from Ratu Tevita Nasorowale giving him permission to build his house on Yavusa Navakavu fishing gound.

The defendant says that he has under section 172 of the Land Transfer Act Cap. 131 shown cause why he refuses to give possession.

The learned counsel for the defendant submits that the issue raised by the defendant that the Title over foreshores, tiri land and fishing rights is "suspicious and unusual" is relevant and indeed brings into focus the provisions of s172 of the Act. Counsel submits that he is not questioning the principle of indefeasibility of title but its application to the defendant’s situation who is sitting on a customary fishing right that is also established by law. He submits that s169 is not the proper method to deal with the defendant.

Mr. Fa therefore says that the application should be dismissed with costs.

Determination of the issue

Section 169 of the Land Transfer Act Cap. 131 (hereafter referred to as the ‘Act’), in so far as it is relevant, provides:

"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:-

1. The last registered proprietor of the land.
   
2. .....
   

100. ....."
     

The principle of indefeasibility of title comes into operation in this action. On this subject the following sections 38, 39 and 40 of the Act are relevant to this case and are to be borne in mind in considering the issue:

Section 38 provides:(registered instrument to be conclusive evidence of title).

"No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title".

Section 39 provides: (estate of registered proprietor paramount, and his title guaranteed):

Section 39(1)

"Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register constituted by the instrument of title, thereto, but absolutely free from all other encumbrances whatsoever except:-

1. the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and
   
2. so far as regards any portion of land that may be by wrong description or parcels or of boundaries be erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and
   

100. any reservations, exceptions conditions and powers contained in the original grant.
     

39(2) Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act."

Section 40 states: (purchaser not affected by notice):

Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.

Section 169 calls for evidence of title. Therefore unless an applicant is the registered proprietor or lessor of the land in question he will not have recourse to this section at all. In this case the applicants/plaintiffs are the registered proprietors of the land.

As against the plaintiffs the defendant has no right at all to the occupation of the land. The reason given by him as to why and how he happens to be on the land is not a good enough reason for him to be in occupation. The alleged ‘fishing right owners’ have no right whatsoever to interfere with the rights of the registered proprietors by permitting the defendant to occupy the land. There is no action pending in relation to ‘fishing rights’ so as to affect consideration of this application. In any case mere institution of proceedings by writ would not by itself shut out a claim under s.169 in a proper case. What the ‘fishing right owners’ do not themselves have, such as any right to the land in law, they cannot give possession of it to anyone else. Here on the affidavit evidence filed no serious conflict is raised.

Under s.172 of the Act the defendant is summoned and he may show cause why he refuses to give possession and if he proves to the satisfaction of the Court a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. Here on the affidavit evidence before me no serious conflict is raised except to say that he is on the land because a third party has allowed him to occupy it. That is not a tangible evidence establishing a right to occupy vis a vis the plaintiffs’ rights as proprietors of the land and bearing in mind the principle of indefeasibility of title.

In this case the defendant has not shown cause of any substance in law to remain in possession to enable me to decide in his favour.

In the result the title of the registered proprietors will prevail over anything that the defendant has said. There will therefore be an order that the defendant give vacant possession within one month from the date of the judgment to the plaintiffs of the portion of the land occupied by him being part of land comprised and described in C.T. 31888 being Lot 1 on DP.5818. The defendant will pay the plaintiffs’ costs in the sum of $200.00 (two hundred dollars).

D. Pathik
Judge

At Suva
13 July 2001