Wati v Singh [2001] FJHC 220; HBC115.2001 (7 August 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 115 OF 2001

Between:

CHANDRA WATI d/o Samlal
Plaintiff

And

SARWAN SINGH s/o Kuldip Singh
Defendant

Mr. E. Veretawatini for the Plaintiff
Mr. A. K. Singh for the Defendant

JUDGMENT

This is a s169 application under the Land Transfer Act Cap.131 (the ‘Act’) by Originating Summons dated 22 March 2001 for an order that the defendant show cause why he should not give up immediate vacant possession of land being part of that piece of land known as Approved Notice of Lease Number LD 4/14/15 97 in respect of land known as Lot 806, Vucimoca in the District of Bua in the province of Tailevu also described as Lot 3 on SO 0001408 (hereinafter referred to as the ‘land’).

Plaintiff’s submission

In support of the Summons the plaintiff has sworn an affidavit stating that she is the registered owner/lessee and that the defendant who is her step son is an illegal occupant of the land; he does not pay any rent and is a trespasser.

A Notice to Quit was served on him on 7 May 1999 to vacate but he has failed to do so.

In reply to the defendant’s affidavit the plaintiff says that as the ‘last registered proprietor’ she has the sole right to the land and is entitled to bring this action under s169 of the Act. She said that the action in the Magistrate’s Court was withdrawn because it was taking a ‘lot of time to dispose off’. Furthermore the land was transferred to her personal name but not through her late husband’s estate.

The plaintiff says that the defendant’s defence be dismissed.

Defendant’s submission

The defendant has deposed that the plaintiff has no lease or title to commence this action and as such this action should be struck out. He says that upon his father’s death on 26 September 1972 Letters of Administration was granted to the Public Trustee of Fiji on 13 June 1973. Thereafter by memorandum dated 17 September 1973 addressed to the Secretary for Lands and Mineral Resources, the Public Trustees stated that the widow is entitled to the whole of the residuary estate and that he would be "grateful if you could prepare a new tenancy-at-will in the name of the widow, Chandra Wati ..." He has as a result been deprived of his share or right over his father’s estate. He is now being evicted from the land. He contends that the plaintiff has no right to evict him. She tried to evict him once before in the Magistrates Court but withdrew the action before the hearing.

Therefore, the defendant says that the plaintiff’s action should be struck out with costs.

Determination of the issue

Section 169 of the Act under which the application is made, 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. ....."
     

There is no doubt that the plaintiff is the registered proprietor/lessee of the land irrespective of the alleged circumstances under which it was obtained. Section 169 calls for evidence of the title/lease and that has been satisfied.

As against the plaintiff the defendant has shown no right at all to the occupation of the land. The lease was granted on 30 August 1984 for a period of 20 years from 1 July 1984. There is only three years left for the lease to expire. If the defendant had any right or interest in the land he should have raised the issue long ago. How to get over the hurdle of the plaintiff’s registered proprietorship of the land is now the defendant’s main problem. This Court cannot in the present state of the facts with the plaintiff being the registered proprietor/lessee consider favourably the defendant’s contention. The Court cannot as the lease at present stands go behind the registration of the lease in this action.

The procedure under s169 is governed by section 171 and 172 of the Act which provide as follows:

"171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment.

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."

I find that the defendant has not shown cause and that there is no arguable defence. This is an appropriate case for the application of s169 which provides a summary procedure in cases where the issues involved are straightforward and there are no complicated issues of fact [Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA - Gould JP).

In the outcome, on the evidence before me, and the defendant not having shown cause as required under s171 I find that the plaintiff, as the last registered proprietor of the land, is entitled to immediate vacant possession of same.

It is therefore ordered that the defendant give immediate vacant possession of the land to the plaintiff under the provisions of the Act with execution stayed for 2 months from the date of this judgment. The defendant is to pay the plaintiff’s costs in the sum of $200.00.

D. Pathik
Judge

At Suva
7 August 2001