Singh v Liku [2009] FJHC 365; HBC312.2009 (9 November 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 312 OF 2009

BETWEEN:

RAM SHANKAR SINGH
PLAINTIFF

AND:

SELINA LIKU AND KAVEBINI NARABE
FIRST DEFENDANTS

AND:

SEREANA AND PITA
SECOND DEFENDANTS

AND:

BUI AND SAMU
THIRD DEFENDANTS

Mr A Seru for the Plaintiff
Mr A Vakaloloma for the Defendants

JUDGMENT

This is an application by Summons for possession of land known as "Tokotoko" (part of) comprised in Certificate of Title No. 11329 being Lot 1 on DP No. 2769 ( the property).

The Summons and the affidavit in support sworn on 26 August 2009 were filed on 18 September 2009. The Defendants opposed the application and filed what purported to be an affidavit in opposition on 28 October 2009. This affidavit was sworn by the first named First Defendant. The Plaintiff filed a reply affidavit on 30 October 2009.

Before considering the application itself, I am compelled to comment briefly on the affidavit material filed by the parties. First, the Plaintiff’s affidavit in support of the application omitted significant facts that were relevant to the Defendants’ occupation of the land in question.

Secondly, the affidavit filed on behalf of the Defendants, although signed, appeared to be unsworn and there were no jurat details entered on the original affidavit that had been filed with the Court.

Thirdly both the answering and reply affidavits contained a number of assertions and legal submissions.

Fourthly, the reply affidavit was more often than not expressed in the third person rather than the first.

The affidavit material was unsatisfactory and had it not been for the delay in bringing the application on for hearing and the Plaintiff’s imminent departure overseas, there would have been directions given to refile all the affidavits to comply with both the substantive and procedural requirements.

The application for possession is made pursuant to section 169 of the Land Transfer Act Cap 169 (the Act).

On the material before me I am satisfied that the Plaintiff is a person with the necessary standing to bring the application. I find that he is the registered proprietor of the land and therefore falls within section 169 (a) of the Act.

I am also satisfied that the requirements that are prescribed by section 170 of the Act have been satisfied.

As the Defendants have appeared at the hearing in response to the Summons, section 172 of the Act is relevant to the disposition of the application. That section states:

"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 may think fit:

..."

Under the section it is for the Defendants to prove a right to the possession of the property thereby showing cause for refusing to give possession of the property to the Plaintiff.

It was not disputed that at the time of the application the Defendants were in possession of part of the land. They enjoyed control of that part of the land and were using that part as their own for farming and residential purposes.

The First Defendants came onto the land in 2003 initially to look after the property at the request of the Plaintiff. They remained as tenants paying $55.00 per month rental to the Plaintiff. With the implied consent of the Plaintiff the Second and Third Defendants subsequently moved onto the property. It was agreed between the parties that the Second Defendants would pay monthly rental of $80.00 and the Third Defendants were to pay $60.00 per month. The first named Second and Third Defendants are the daughters of the First Defendants and their husbands.

There was no written or formal agreement in respect of these arrangements.

It would appear that the Second and Third Defendants have not paid rent for some time as they have been away from the property and involved in cane cutting in the West.

I accept that some time in 2007 the Plaintiff advised the Defendants that he intended to sell the property and that it would be necessary for them to vacate the land.

I also accept that the Plaintiff entered into a bona fide Sale and Purchase Agreement (the Agreement) dated 31 July 2009 with Kishor Kumar for the sale of the land. Pursuant to clause 3 of the Agreement the balance of the purchase price is payable on settlement. The date of settlement is the day the last tenant vacates the property or by court order. The agreement provides for the delivery of vacant possession of the property.

Notices to Vacate were delivered to the Defendants on about 28 July and 5 August 2009.

From the facts deposed to in the affidavit filed on behalf of the Defendants, it would appear that the Defendants are concerned about the dalo crop that they have planted. Although there is some dispute as to when and under what circumstances the dalo crops have been planted, it is apparent that since 2007 the Plaintiff has by his conduct permitted the Defendants to plant dalo on the property.

It certainly would not have been reasonable for the Defendants to have planted dalo after they had received the first notice that they were required to vacate the property.

Furthermore I am entitled to take judicial notice of the fact that it takes approximately six months for dalo to mature for harvesting. It would therefore be reasonable to allow the Defendants the opportunity to harvest any dalo planted prior to the date of the first Notice to Quit being 28 July 2009. Alternatively the Defendants should be able to recover the loss of that dalo by the payment of compensation determined by an independent valuation.

However, as for establishing a right to possession, the Defendants have not shown cause for refusing to give possession of the property that they currently occupy to the Plaintiff.

There was no material before me to indicate a claim for compensation for any other improvements to the property. The houses occupied by the Defendants on the property had been erected prior to the Defendants moving onto the land.

Under the circumstances the Plaintiff is entitled to vacant possession of the property on the conditions stated below.

It is therefore ordered that the Defendants give vacant possession of the property on the condition that they be allowed back on to the property for the purpose of harvesting any dalo crop planted prior to 28 July 2009 or alternatively upon condition that they be paid compensation for the said dalo crop pursuant to an independent valuation. If the second option is to be adopted vacant possession becomes enforceable upon payment of the compensation. If the first option is adopted then the right to re-enter the property to harvest the said dalo crop ceases on 29 January 2010.

Each party is to pay their own costs.

W D Calanchini
JUDGE

At Suva
9 November 2009