Howard v Golea [2001] FJHC 255; HBC1.2001 (27 November 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 1 OF 2001

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

Between:

MICHAEL HOWARD & RHONDA HOWARD
Plaintiffs

And

ESTER GOLEA
Defendant

Mr. S. Prasad for the Plaintiff
Mr. H. Robinson for the Defendant

JUDGMENT

This is an opposed s169 application by Summons dated 15 January 2001 by the plaintiffs requiring the defendant to show cause why she should not give up immediate vacant possession to the plaintiff of all the plaintiff’s premises which she is alleged to be unlawfully occupying known as "Sogulu, Nadawa, Nakawakawadawa situated on Lot 24 deposited Plan No. 4716 of which the plaintiffs are the registered proprietors (hereinafter referred to as the ‘land’).

The plaintiffs say that the defendant has been in unlawful occupation of the land for over three years now. She has been given notice to quit but she has failed to do so and instead has threatened to cause damage to the land if legal action is taken against her for vacant possession. The plaintiff denies that there was any contract with the defendant that she would be paid any money or that she was to keep the house in a ‘living condition’ at her own costs. She was occupying the land free of any rent and rates. The plaintiff attached a Memorandum in writing and signed by both parties on 28 August 1995. The agreement stated, inter alia, that she was "allowed to occupy the home free of rent" and therefore "it will be your responsibility to look after the house as a caretaker".

The defendant in reply to the plaintiffs’ allegation states that: (a) she was required by the plaintiff to occupy the premises; (b) subsequently an agreement was reached between them that she would ‘maintain care and occupy the house in consideration of which the plaintiff was to pay’ to her $110.00 per month and therefore she occupied the land. She said that she repaired the home but has not been paid for it; nor was she paid her salary.

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. ....."
     

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.

On the affidavit evidence before me and the submission made by both counsel, I find that as against the plaintiffs the defendant has no right at all to the occupation of the land. The reason given by her as to why and how she happens to be on the land is not sufficient for the purposes of an application under s.169 particularly when in the face of a written signed memorandum her argument does not hold any water. In fact she has no leg to stand on in her opposition to the application.

As far as the law is concerned, under s.172 of the Act the defendant is summoned and she may show cause why she refuses to give possession and if she 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 her favour.

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

The defendant will pay the plaintiffs’ costs in the sum of $200.00 (two hundred dollars) to be paid within 21 days.

D. Pathik
Judge

At Labasa
27th November 2001