Lesuma v Thaggard [2007] FJHC 135; HBC 243.2006 (16 February 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 243 OF 2006

BETWEEN

FILIMONE QEREWAQA LESUMA
and
JOANA ROSEMARY FRIBERG
PLAINTIFFS

AND

JOE THAGGARD, PEPE THAGGARD
and
WILLIAM THAGGARD
DEFENDANTS

DOMINIC BO JONG
THE REGISTRAR OF TITLES
THIRD PARTIES

MS V. Lal for the Plaintiffs
Mr. I. Tuberi for the Defendants

Date of Hearing: 13^th February 2007
Date of Judgment: 16^th February 2007

JUDGMENT

The plaintiffs became registered proprietors of a freehold land at Wailoku, Suva comprised in CT 22130 on 3^rd June 2005. The area of the land is 2.3504 hectares. After purchasing the land, the plaintiff served two notices to quit to the defendants asking them to deliver vacant possession on expiry of one month of the notice.

The defendant has refused to vacate the property. His grounds are that his grandparents lived on the property followed by his parents and he has lived on the property. He calculates that his family has lived on the property for at least 60 years. As such he asserts that he has the right to adverse possession and hence he cannot be evicted from the land.

He states that the land initially belonged to Bhindi Brothers Limited which sold it to one Mr. Wong and his wife in 1986. He says Wong was aware of his family's occupation of the land in question as Wong owned the adjacent lot and had known of defendant's presence on the land.

Statutory Provisions - Section 169 and 172:

The summons is in proper form. The plaintiff is the registered proprietor. He has served a notice to quit and he relies on the notice to bring the eviction proceedings. He has met the threshold requirements of Section 169.

The onus therefore shifts on the defendant to "show cause why he refuses to give possession of such land". He has "to prove to the satisfaction of the judge a right to the possession of the land" - Section 172 of the Land Transfer Act Cap 131.

The Court of Appeal in Hardeo Prasad v. Abdul Hamid - ABU 59/03 FCA 2004/46) explained that Section 172 requirements did not envisage a "final or incontrovertible proof of a right to remain in possession" but rather "some tangible evidence establishing a right or supporting an arguable case for such a right".

On the other hand mere assertions without any supporting details are insufficient to prevent the making of a summary order - Gyan Prakash v. Lakshmi Prasad - ABU 42 of 2002.

Adverse possession - Section 78 of Land Transfer Act:

The defendants rely on Section 78 of the Land Transfer Act to found a claim of adverse possession.

The relevant portion of Section 78 for the purposes of these proceedings reads:

"(1) Where -

(a) Any person is in possession of any land subject to the provisions of this Act, for which a certificate of title has been issued or a Crown grant registered under the provisions of this Act; and

(b) Such possession has been continuous for a period of not less than twenty years, and is such that he would have been entitled to an estate in fee simple in the land on the ground of possession if the land had not been subject to the provisions of this Act,

he may apply to the Registrar in the manner hereinafter provided for an order vesting the land in him for an estate in fee simple or for such other estate or interest as may be claimed by him."

The section requires that there must be a continuous possession for at least 20 years for defence of adverse possession to arise. He can apply to the Registrar of Titles for an estate in fee simple in the manner as prescribed by Section 79. Section 80 to 87 set out the procedure to be followed by the Registrar, the applicant and those likely to be affected by a vesting order. This possession must be such that the person would have been entitled to an estate in fee simple on ground of possession if the land was not subject to the Act. In other words the person claiming right to adverse possession would need to show that he had exclusive possession of the land and that he used the land and dealt with it in a manner in which the registered owner would have done. He would also need to show the intention to possess the land on behalf of himself. In short

"In order to constitute a title by adverse possession, the possession relied on must be for the full period of [twenty] years, actual open and manifest, exclusive and continuous" - McDonell v. Giblin [1904] NZGazLawRp 25; (1904) 23 NZLR 660, 662.

Facts Raise Arguable Defence:

The defendants state that their grandparents lived on the land, their parents lived on the land and have placed the term of possession as being for 60 years. They also allege the plaintiffs were aware the occupation. In his affidavit in support the plaintiff stated that the defendant chased him out of the property. Normally this is how an owner of property would behave. It shows the paper owner (the registered proprietor) was on this occasion at least excluded from the land. On the other hand the plaintiff also deposed that they were willing to buy the land from Mr. Wong which is a recognition of Mr. Wong's title by the plaintiffs and therefore shows a lack of intention of making a title against the registered owner.

The question therefore is what constitutes a sufficient degree of exclusive physical control would depend on the circumstances. Such facts would need to be tested by oral evidence. I cannot on the affidavits alone come to any firm conclusion one way or other but I am satisfied that the defendant has raised a realistic arguable case sufficient to convince me that this is not an appropriate case for summary procedure under Section 169 of the Land Transfer Act.

This does not however mean that the matter is now res judicata. The plaintiffs can take proceedings by way of writ of summons if they so wish: Vallabh Das Premji v. Vinod Lal & Others - ABU 70 of 1974.

Accordingly, the summons for vacant possession is dismissed with costs summarily fixed in the sum of $350.00 to be paid in twenty-one (21) days.

Jiten Singh
JUDGE

At Suva
16^th February 2007