Sharma v Mati [2004] FJHC 366; HBM0425.2003L (4 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0425 OF 2003L

BETWEEN:

RATNA WATI SHARMA
Plaintiff

AND:

VEER MATI
VIJENDRA DUTT SHARMA
Defendants

Counsel for the Plaintiff: Mr. Siddarth Nandan
Counsel for the Defendants: Mr. M.K. Sahu Khan

Date of Hearing & Judgment: 4 February 2003

EXTEMPORE JUDGMENT

Application

This matter comes before the court by way of Summons for Ejectment. The plaintiff seeks immediate vacant possession of all that property being 4.4009 hectares comprised in Crown Lease No. 8397 Lot 3 and 15, on ND 5124 and ND 5112 situated at Namoli, Maiguniyah, Nadi.

The plaintiff relies on the evidence contained in an affidavit of the plaintiff sworn on 1 December 2003. The defendant relies upon an affidavit of Vijendra Dutt Sharma sworn on 9 December 2003. The defendants have filed their written submissions which in part raise various procedural issues.

Legislation

Section 169 of the Land Transfer Act (Cap. 131) provides as follows: -

“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) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

The lease in question is a protected lease under the provisions of the Crown Lands Act (Cap. 132) and accordingly Section 13(1) of that Act requires the consent of the Director of Lands to the bringing of the proceedings.

Section 11 of the Civil Evidence Act provides: -

“(1) The document which is shown to form part of the records of a business or public authority may be received in evidence since civil proceedings without further proofs.

(2) The document is to be taken to form part of the records of a business or public authority if this is produced to the Court a certificate to that effect signed by an officer of the business or authority to which the records belong.”

Annexed to the affidavit of the plaintiff is what purports to be a photocopy of the agricultural lease in the name of the plaintiff. The document is not certified as required by Section 11 of the Civil Evidence Act. The last, and most relevant, entry that is the transfer to the plaintiff does not appear to be signed by the Registrar of Titles.

The provisions of Section 169 of the Land Transfer Act are in my opinion mandatory and there is no discretion given to the Court as to the people who might commence proceedings pursuant to that section. There is no evidence in admissible form before the Court as to the registered proprietor of the lease.

There is no evidence before the Court of the consent of the Director of Lands as required by Section 13 of the Crown Lands Act to commence the proceedings.

I am of the opinion that both the requirements are, as I have stated, mandatory and without compliance with those requirements the proceedings cannot succeed or for that matter proceed and accordingly, I see no alternate but dismissed the summons.

Order

1. Summons dismissed;
   
2. The plaintiff to pay the defendants’ cost.
   

I assess cost in the sum of Seven Hundred and Fifty Dollars ($750.00).

JOHN CONNORS
JUDGE

AT LAUTOKA
4^TH FEBRUARY 2004