Attorney General of Fiji v Koroi [2002] FJHC 208; HBC0136j.2001s (8 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0136 OF 2001

IN THE MATTER of Section 169 of Part XXIV of the Land Transfer Act, Cap. 131.

Between:

ATTORNEY GENERAL OF THE REPUBLIC OF FIJI
Plaintiff

and

MRS SUSANA KOROI
Defendant

Ms. N. Baswaiya with Ms. N. Karan for Plaintiff
Mr. R. Matabalavu for Defendant

JUDGMENT

This is a s169 application under the Land Transfer Act Cap. 131 (the >Act=) by Originating Summons filed on 5 April 2001 supported by an affidavit for an order that >the plaintiff do recover possession of Government Quarters No. 4, Service Street, Vaturua Lane, Suva (hereafter called the >land=) from the defendant on the ground that he is entitled to the possession and that the defendant is in continuous occupation of the said quarters without the plaintiff=s consent=.

Plaintiff=s submission

The affidavit in support of summons sworn by Ratu Meli Bainimarama of the Ministry of Fijian Affairs as Permanent Secretary and Chairman, Draiba and Service Street Housing Committee states, inter alia, that-

(a) the said Quarters is a Government Quarters administered by the Ministry of Fijian Affairs and allocated to Mr. Sekove Koroi and occupied by Koroi and his family which include the defendant by virtue of being an employee of the Printing and Stationery Department

(b) the defendant=s eligibility and entitlement to occupy the Quarters ceased upon the passing away of her husband Mr. Koroi. Hence by notice to quit dated 20 March 2000 she was informed to vacate and deliver vacant possession of this Quarters by 23 June 2000. She was also informed of the rent arrears which was unpaid as far as 1990 by her late husband amounting to $4,648.00.

(c) The defendant has refused to vacate the Quarters. However on 13 November 2000 the Superintendent of Suva Methodist Division made representation on her behalf asking if she could be advised to settle rent arrears by instalment payments and continue to occupy the Quarters which was declined by the Ministry by letter dated 16 November 2000.

(d) Subsequently, she was warned of legal action to evict her from the Quarters followed by a Notice to Quit dated 22 January 2001 but the defendant continues to occupy the Quarters.

The defendant alleged that about February 1999 >it was decided by Government that the individual occupant of the several lots and quarters at Vaturua Lane should be provided with an offer to purchase the occupied lot on long-term lease= and that the defendant and her husband were included in that decision. In response to this Mr. Bainimarama deposed, inter alia, that whilst admitting that there was that decision to purchase the quarters, >the Defendant=s husband who was a public servant died on 22 November, 1998 that is before the decision for the sale of the said quarters were made in February 1999'. Furthermore he stated that >neither the Defendant nor her husband are entitled to the offer for the purchase of the said quarters at Vaturua Lane, because none of them was a public servant when the decision was made to sell the said quarters to public servant occupants of the quarters=.

Defendant=s response

The defendant through her Affidavit in Reply admits that she has been in occupation of the said Quarters with her deceased husband since 1985. Her husband died on 22 November 1998.

She maintained that she has authority and/or approval to remain in occupation of the land while awaiting receipt of an offer to purchase the land pursuant to a Government decision in February 1999 that the individual occupants of the several lots and quarters at Vaturua Lane should be provided with an offer to purchase the occupied lot on long-term lease. This fact she says has not been disclosed by Mr. Bainimarama and he is aware of such Government decisions, a decision which included her and her husband.

The defendant says that she is quite willing to purchase the land >pursuant to the original terms of Government=s decision and meanwhile make suitable arrangement to discharge outstanding rental arrears=.

In these circumstances she says that the application should be dismissed.

Determination of the issue

The facts of this case have been sufficiently outlined hereabove.

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

AThe 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) ....@

Bearing in mind the contents of Mr. Bainimarama=s affidavit sworn on 19 October 2001, and not disputed by the defendant, I am satisfied that the plaintiff is the proper >party= before the Court in so far as the Aregistered proprietor@ requirement under s169 is concerned.

It cannot be doubted and I find as facts that as a public servant the defendant=s husband (the Adeceased@) was entitled to occupation of the land. By virtue of the deceased=s employment the defendant with her children also occupied the land. However, the defendant=s eligibility and entitlement to occupy the Quarters ceased upon her husband=s death on 22nd November 1998. I accept Mr. Bainimarama=s explanation as to defendant=s non-eligibility to occupy the land. I reject the defendant=s argument altogether as to the reason for continuing to occupy the land and her entitlement to purchase the land.

On the facts as I have found them, the defendant has no right at all to the occupation of the land.

In an application under s169, as provided for under s172 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. Here, on the affidavit evidence before me and legal submissions made I find that no serious conflict is raised except the circumstances in which the defendant says she happens to be on the land. That is not a tangible evidence establishing a right to occupy vis à vis the plaintiff=s rights as proprietors of the land.

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 proprietor will prevail over anything that the defendant has said. There will therefore be an order that the defendant give vacant possession of the said Quarters with execution stayed for a month from the date of this judgment with no order as to costs.

D. Pathik
Judge

At Suva
8 February 2002