Ramlu v Narayan [2004] FJHC 378; HBC0316.2002L (25 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0316 OF 2002L

BETWEEN:

SHRI RAMLU
Plaintiff

AND:

JOSEPH JASWANT NARAYAN AND GOVINDAMMA NARAYAN
Defendants

Counsel for the Plaintiffs: Mr. Babu Singh
Counsel for the Defendant: Ms. T. Draunidalo

Date of Hearing & Judgment: 25 February 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of a Summons wherein the plaintiff seeks immediate vacant possession of the land described as Vodawa, Lot 35 having an area of 31.1 perches pursuant to the provisions of section 169 of the Land Transfer Act. Section 169 of the Land Transfer Act provides that the last registered proprietor of the land may summon any person in possession of land to show cause why that person should not give up possession to the applicant.

Those proceedings then by virtue of section 172 of the Land Transfer Act cast a burden upon the person summoned to show cause why he refuses to give possession of the land and to prove to the satisfaction of the court a right to possession of that land. Should it be that the defendant fails to meet this burden then it appears that the last registered proprietor the applicant should be judged entitle to possession.

In this matter, I have been referred to the affidavit of the applicant and the affidavit in reply. I have also had the benefit of written and oral submissions on behalf of the plaintiff and submissions on behalf of the defendant.

The defendant submits that the summons is defective in that property is not properly described and that there was a material non disclosure by the plaintiff in the affidavit in support and further that these proceedings should await the outcome of proceedings No. 522 of 1999 in the High Court at Suva which proceedings challenged the validity of the Will pursuant to which the plaintiff ultimately became registered proprietor of the land.

The plaintiff submits that the summon is indeed proper and it is where necessary supplemented by the affidavit of the plaintiff and that there is indeed no relevant non-disclosure. So far as the probate proceedings are concerned or the proceedings No. 522 of 1999 are concerned, the plaintiff submits that the outcome of these proceedings unless a fraud be proved will not changed the registered proprietor of the subject land and therefore will not changed the status of the plaintiff or the ability of the plaintiff to bring these proceedings.

It falls to the court to determine the matter based upon the situation as it exists at this point in time. The plaintiff is indeed the person entitled pursuant to section 169 to commence these proceedings, that being so, the burden is then cast as I said earlier upon the defendant to satisfy the requirements of section 172.

The defendants have referred me to two authorities in 28 FLR, the first which is at page 31 Azmat Ali v Mohammed Jalil decision of the Fiji Court of Appeal and further to Dharam Lingam Reddy v Pon Samy & Ors 28 FLR p. 69, having considered these decisions, I am of the opinion that they do not assist the court due to the facts of this matter.

The requirements of section 169, I find have been satisfied, the plaintiff is the last registered proprietor of the land and therefore entitled to commence these proceedings. A notice to quit has been served and has been followed by the summons that brings the matter before the court. That being so, as I have said casts the burden upon the defendant pursuant to section 172 to prove to the satisfaction of the court that the defendant has a right to possession of the land. The evidence upon which the defendant relies is set out in the affidavit to which I have referred.

There is nothing sufficient in that evidence to satisfy me that the defendant is in fact entitled or has a right to possession of the land. It might be that the defendant in fact has some claim against the plaintiff in the future but that is not a matter for consideration of the court this time.

The situation facing the court is not dissimilar from that considered by Mr. Justice Scott in Narain Sanjay Lal v Moti Lal (No. 395 of 2001) where His Lordship, whilst expressing sympathy for the defendant, made the point that the court does not have jurisdiction to suspend legal entitlements on the grounds of sympathy. Accordingly, I find that the plaintiff is entitled to possession of the land.

The Orders of the Court therefore will be: -

1. The plaintiff is judged is entitled to possession of the subject land;
   
2. Execution of the orders is stayed until 31^st May 2004;
   
3. No order as to costs.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
25 FEBRUARY 2004