Eggers v Blake [2003] FJHC 263; HBC0034D.2003L (27 October 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0034 OF 2003

Between:

KERRY WILLIAM EGGERS
Plaintiff

and

1. CHRISTOPHER BLAKE
2. ASHLEY BLAKE
Defendants

Mr. A. Sen for the Plaintiff
Defendants in Person

JUDGMENT

This is a s169 application under the Land Transfer Act, Cap 131 (the ‘Act’) by summons filed 9 June 2003 supported by an affidavit for an order that the defendants do show cause why they should not give immediate vacant possession to the plaintiff of the plaintiff’s land and premises which is occupied by the defendants and known as “Soqulu” “Nadawa” “Nakawakawadawa” (part of) and being whole of the land comprised in Certificate of Title No. 2096 (the ‘land’)

Plaintiff’s submission

The plaintiff says that he is the registered proprietor of the land and that the defendants are trespassers on the land and are occupying a dwelling house constructed thereon. Notice has been given to them to vacate but they have refused to do so and are still occupying the same. He says that the defendants’ occupation is illegal and unlawful. He is therefore asking for its immediate vacant possession.

Defendants’ submission

The defendant Ashley Blake appeared for herself and the co-defendant. She made her submissions orally opposing the summons and handed in to Court her written argument as well.

The gist of her argument is that she came on the land at the invitation of its former registered proprietor and allegedly there was some talk of the defendants purchasing the land. Later the land was sold to the plaintiff who became the registered proprietor.

She admits that the plaintiff gave her verbal notice to vacate but she has not moved out because she is strongly of the view that the plaintiff who had already become the registered proprietor kept this fact away from her and kept on telling her as if the land belonged to the former registered proprietor. She says that because of his ‘actions’ he ‘disqualified’ himself from bringing this action for ejectment.

The defendant is saying that because of the ‘equity earned in the property as part of the former honourable agreement (with the former registered proprietor) invalidates this application for ejection and necessitates the plaintiff’s need to give account for how he got the title.’

The Law

This application is under s169 of the Land Transfer Act, Cap. 131 (the ‘Act’). Under this section which provides, inter alia, as follows, the plaintiff as the last registered proprietor of the land in question is entitled to bring this action:

“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:-

(a) The last registered proprietor of the land
(b) .....
(c) .....”

Section 169 calls for evidence of title. Therefore unless an applicant is, inter alia, the registered proprietor of the land in question he will not have recourse to this section at all.

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

s.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.

s.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 thinks fit.”

It is for the defendants to ‘show cause’

Determination of the issue

I have considered the submissions made by counsel for the plaintiff and the defendants.

Although the defendants raised certain matters as stated hereabove as to how they claim to have an interest in the land, these themselves in my view do not constitute strong enough reasons to interfere with the ownership of the land which is in the plaintiff. He is the registered proprietor.

On the facts as put before the Court by the defendants, it is abundantly clear that if they have any complaint it is against the previous registered proprietor of the land. The defendants, if they had seriously agreed to purchase the land, then to protect their interests they should have lodged a Caveat against the title. Evidently there is nothing in writing between them. In any case this is a case on the facts one in which the plaintiff is a bona fide purchaser for value without notice of any prior dealings or agreements or equitable interests.

The facts are not in dispute in this case. I find s169 application appropriate here. On the aspect of summary procedure, in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould V.P. said:

“... the summary procedure has been provided in the Land Transfer Act and, where the issue involved are straight forward, and particularly where there are no complicated issue of fact, a litigant is entitled to have his application decided in that way.”

On the requirements of the said section 172 the Supreme Court in Morris Hedstrom Limited v Liaquat Ali, (Action No. 153/87 at p2) stated as follows which is pertinent:

“Under Section 172 the person summonsed may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

The defendants have not shown cause to my satisfaction as required under s172. In the result, in this case the title of the registered proprietor will prevail over anything that the defendants have said. There will therefore be an order that the defendants or anyone else in occupation of the land give immediate vacant possession of the land in question with execution stayed for one month. The defendants to pay costs to the plaintiff’s solicitor the sum of $250.00.

D. Pathik
Judge

At Labasa
27 October 2003