Naidu v Seniroga [2005] FJHC 293; HBC0119.2005 (11 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0119 OF 2005

BETWEEN:

DAVENDRA NAIDU
father’s name Subba Naidu of Magruru, Ba, Businessman,
SATENDRA NAIDU
father’s name Subba Naidu of Lovu, Lautoka, Businessman and
MUN SAMY NAIDU
of Lovu, Lautoka, Retired.
PLAINTIFF

AND:

JONE SENIROGA aka JOHN SENIROGA
C/- Tropic Wood Ltd, Lautoka. Security & Transport Supervisor,
TITILIA NASOSOGENGE and MALA
all of 13 Kadavu Street, Waiyavi, Lautoka, Nurse and Unemployed respectively.
DEFENDANT

Mr A. Patel and Ms M Muir for the Plaintiffs
Ms C. Punja for the Defendants.

Date of Hearing: 18 October 2005
Date of Ruling: 11 November 2005

RULING OF FINNIGAN J

This is a disputed application for possession of a residential property under Section 169 of Land Transfer Act Cap 131.

Through Counsel, the Defendants have sought to show cause why a summary order should not be made against them. They do not seek dismissal of the application but submit that it should be “heard in open court”.

The Facts:

The facts and the claims of fraud emerge from the affidavits of Satendra Naidu for the Plaintiffs and Jone Seniroga for Defendants. One is sworn by the former and two by the latter.

The Defendants occupied the house in question in 1990 by agreement with the widow of the “original owner”, and paid rent until the widow died. Thereafter they paid rent to one Mohammed Rafiq. The Defendants were advised by officers of the NLTB at the time of expiry of the original lease that they could obtain a new lease with the “sole consent of the landowners”. The Defendants say they got that consent and twice annexed in the Seniroga affidavits a letter but it is in Fijian and I cannot read it. It is dated apparently 26 May 1999.

Thereafter the Defendants dealt with the NLTB between May 1999 and April 2000. They made very little progress being told among other things that the file had been lost. In April 2000 they learnt that a new lease had been registered in the name of Mohammed Rafiq. This was registered on 13 April 2000. They stayed on in the house paying no rent until Rafiq obtained an order in this Court on 23 August 2002 to have them evicted.

They moved out and intended to stay out, disillusioned by the treatment they had received. They say they were subsequently brought back to the property by “the landowners” and resumed occupation in December 2003.

In the meantime Mohammed Rafiq and the other registered owner had sold the lease to the Plaintiffs. The Plaintiffs became registered title holders on 22 September 2004. They have had no rent from the Defendants and do not want them in the property. They brought these proceedings in May 2005.

Not a party to these proceedings but featuring prominently in the affidavits of Jone Seniroga is the NLTB. He swears in his second affidavit that the Defendants were told by NLTB officers that the lease had expired and that any new lease would be issued “under the sole consent of the landowners”. He says they referred the matter to the landowners who gave their consent in the letter I have referred to. He says the Defendants visited the NLTB officers for confirmation of the lease offer but were always told the file was missing. They involved the NLTB Regional Director Western, Mr Semi Tabakanalagi. Jone says that Semi recommended that the Defendants be given the “lease offer”. Then from June 1999 till about April 2000 they made several trips to NLTB officers, were always told that the file was missing and that the NLTB officer concerned would get in touch with them once his investigation were completed. He swears that so far as the Defendants are concerned the consent of “the land owners” has been given for them to lease the land.

I say “the landowners” because that is the only description given by the deponent of the people with whom the Defendants were dealing. Better evidence is needed before the questions of fact and law implicit in that statement are resolved. For their part, the Plaintiffs point to their registered title and say that prima facie they have obtained whatever consent was required at law for valid registration.

The Submissions:

Under S. 172 of Cap 131 I am obliged to dismiss the Plaintiffs application if the Defendants show a right to possession of the land, although I am also allowed to make any other order. Dismissal of the application is no bar to other proceedings by the Plaintiffs. Counsel for the Defendants submits that the S. 169 procedure is “insufficient” and that the facts indicate a need for an “open court hearing”. She has handed up two authorities, to which I shall refer.

Plaintiffs’ Counsel submits that the register is everything and relies upon Fells –v- Knowles 26 NZLR 608, particularly at 621. She submits that the Defendants were “misled by their own community”, and that any claim they may have should be directed to the NLTB. (To which I add that if they seek registration then they need also to involve the Registrar of Titles and the Plaintiffs). She points out that the Defendants have made no claims against the Plaintiffs, their complaints are only about the NLTB. Counsel for the Defendants seemed to agree with that and both Counsel left it to me to decide what to do.

Decision:

I refer to the first case of Counsel for the Defendants, Sharma –v- Singh Civil Appeal No. 33 of 1986, Judgment 4 July 1986. The facts are not the same, but the situation is. The “disputed facts and allegations of fraud ......cry out for a more careful investigation than would be possible on a summary proceeding in Chambers”. (P. 2).

The issue for me, highlighted by Singh –v- Singh (1987) 33 FLR 63, is whether the allegations are indeed so complex that they need further investigation. Some evidence must support that claim by the Defendants. Counsel for the Plaintiffs says that the evidence does not support that.

After careful consideration of the arguments I am bound to agree. According to the Register and according to the Land Transfer Act Cap 131 the Plaintiffs are vested with good title to this property against all the world. There are good authorities to support a proposition that this title may still be subjected to claims made on the Plaintiffs in equity, but in the present case the claims made by the Defendants are not against the Plaintiffs. I cannot hold that there are complex issues of fact between the parties to this application which require further investigation. The Defendants are unable in my view to show cause against the Plaintiffs and in law must yield possession to them.

There will be an order for vacant possession.

The Plaintiffs sought damages but that claim was not pursued and rightly so. It is dismissed.

The Defendants are entitled justly to a period of time before compliance. I weigh up the legal right of the Plaintiffs with fairness to the Defendants and allow six weeks for the Defendants to vacate. They may leave sooner if they wish, but must give notice to the Plaintiffs or their solicitors if they do.

Orders:

I make an order that the Defendants do give vacant possession of all that piece and parcel of land known as Waiyavi Subdivision Stage 1 Section 43 being Lot 7 on ND3610 contained in Native Lease No. 25151 comprising an area of 1573 sq meters together with all improvements thereon. This order must be obeyed by 4.00pm on 30 December 2005. If vacating earlier, the Defendants must give 48 hours’ notice to the Plaintiffs.

I dismiss the application for damages.

Costs follow the event and are fixed in favour of the Plaintiffs, summarily assessed at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
11 November 2005