Housing Authority v Deo [2010] FJHC 170; HBC215.2009L (10 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 215 of 2009L

BETWEEN:

HOUSING AUTHORITY
Plaintiff

AND:

NISHAL RAJNISH DEO
(f/n Muni Deo)
1st Defendant

AND:

BABU SUSHIL CHAND
(f/n Bal Govind)
2nd Defendant

AND:

TALIM MOHAMMED
(f/n Mohammed Razak)
3rd Defendant

AND:

ILIESA VAKABUA
(f/n Mohammed Razak)
4th Defendant

AND:

MOHAMMED JAMAL
(f/n Mohammed Razak)
5th Defendant

AND:

JOGEN PRASAD
(f/n Dorka Prasad)
6th Defendant

AND:

KISHORE KUMAR
(f/n Jay Dass)
7th Defendant

AND:

AVINESH KUMAR PILLAY
(f/n Vinladen)
8th Defendant

AND:

SELA SERU
9th Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr I. Vesikula for the Plaintiff
Defendants by spokesperson

Solicitors: In-house Lawyers for the Plaintiff
Defendants self represented

Date of Hearing: 5 May 2010
Date of Judgment: 10 May 2010

INTRODUCTION

[1] This is an application under s 169 of the Land Transfer Act [Cap 131] by the Housing Authority to evict the Defendants from its land. The Housing Authority claims that the Defendants are squatters.

[2] The land in question is locally known as the Tavakubu Subdivision in Lautoka. Part of the land is undeveloped and the Defendants are occupying that portion and this application is brought to remove them so that the Housing Authority can develop the land further by subdividing and leasing out blocks to tenants.

[3] The nine Defendants were not legally represented so I gave them leave to appoint a spokesperson to represent them and Ms Blake, a Community Worker, kindly appeared at the hearing and quite capably made representations on their behalf.

THE APPLICATION

[4] The Housing Authority’s Summons describes the Defendants as occupying "the portion of the balance of undeveloped land situate at Tavakubu Subdivision known as Vitogo and Drasa Freehold and comprised in Headlease Crown Lease No 5037".

[5] The application was supported by the affidavit of the Board Secretary/Manager Corporate Governance for the Housing Authority. He confirms that the Defendants are occupying that portion of the Housing Authority’s land and annexed a certified copy of Crown Lease No 5037 (hereinafter the "Lease" or the "land"). The Housing Authority is the registered lessee from the Director of Lands on behalf of the Crown of a little over 1,005 acres of land for 99 years from 11 November 1969. The Lease was registered on 4 June 1974. He says part of the land is undeveloped and the Defendants have built lean-to-dwellings without licence right or consent from the Housing Authority and therefore are trespassers-at-law. The portions of the land occupied by the Defendants were identified in the affidavit by red triangles marked onto a map which looks like an aerial photograph. Each of the portions occupied by the Defendants were not surveyed. The Housing Authority has neither demanded nor accepted rent from the Defendants. It had sent notices to quit dated 7 May 2008 demanding the Defendants to dismantle their homes and leave the portion of the land occupied by them. The Defendants have refused to vacate.

[6] The Defendants filed a joint affidavit in reply. For the purposes of this application I will not mention the individual circumstances of each Defendant but will refer to them collectively. They say that they moved on to the land on various dates between 1961 and 1998. They were led to believe that the land they were living on belonged to the Fijian landowners and have paid them goodwill and have been paying them rent ever since. Their houses have been connected with electricity and water with the landowners consent and the authorities have never questioned their right to these services or to occupy their portions of the land. It turns out that the land in question did not belong to the landowners but instead to the Housing Authority. The Defendants say that they were not aware of the mistake until 2008. In fact they say, the Housing Authority wrote a letter dated 14 February 1991 addressed "TO WHOM IT MAY CONCERN" certifying that Lot 29 NLC Plan H/13 was native land owned by Mataqali Nadakuvatu and did not belong to the Housing Authority. Lot 29 was understood to be the description of the land occupied by the Defendants. All along the landowners and the Defendants and even the Native Land Trust Board (NLTB) thought that Lot 29 belonged to the landowners. The mistake was discovered when the First Defendant took one of the NLTB officers to the site of the proposed church for which the landowners had been paid goodwill and he had applied for the title. The officer checked with an "instrument" and found out that the site did not belong to the landowners. The site was in fact part of Crown Grant 1040 which subsequently became the Housing Authority’s Crown Lease No 5037. It is easy to understand how the mistake was made because Lot 29 and Crown Grant 1040 had adjacent boundaries at the area in question.

[7] In response, the Housing Authority says that it was not privy to any of the dealings with the landowners and denies responsibility for the mistaken location of the portions of the land occupied by the Defendants.

THE LAW

[8] The procedure under s 169 has been explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-

"s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."

s.172. If a 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."

It is for the defendant to ‘show cause’.

Although the defendant has alleged fraud, there are no complicated questions of fact to be investigated. The procedure under s169 is most appropriate here. On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83) Gould J.P. said

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."

On the requirements of section 172 the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said as follows and it is pertinent:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced."

The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Ajmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:

"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown. (emphasis mine)

[9] In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975) the Court of Appeal said:

These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –

Under Section 172 of the Act the judge is required to dismiss the summons if the respondent proves to his satisfaction a right to possession and it is also provided that the judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a plaintiff to take any other proceedings to which he may be otherwise entitled.

In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiffs right to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported). The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure, where another, comprehensive and better suited to the determination of controversial matters, is available.

CONSIDERATION OF THE APPLICATION

[10] Counsel for the Housing Authority, Mr Vesikula submitted that his client has indefeasible title and in the absence of actual fraud, and there is none in this case, its title cannot be impeached. He also submitted that there cannot be any claim for equitable rights or estoppel.

[11] I am afraid I do not think that this case is as straight forward as that. I too, like Ms Blake was confused when I first read the affidavit material. As I pointed out to Mr Vesikula during the hearing, when the Housing Authority was issued the lease some of the Defendants were already living on its land. Whether it carried out a survey or, if it did, decided not to evict the Defendants, can only be decided at trial after hearing witnesses. There is so much unexplained on the Housing Authorities side as to why these Defendants came on to the land and remained there for so long and paying rent to the landowners. I think a strong argument can be raised that the rent monies paid by the Defendant was allowed by the Authority to be paid to the landowners because it did not honestly think that the land in occupation belonged to it. These and other facts could give rise to a claim for estoppel, laches and/or acquiescence. I do not think that such defences are just mere possibilities.

[12] I pointed out to Mr Vesikula the other difficulty which his client faced and that was the lack of precision in identification of the portions occupied by the Defendants. The terms of the order for eviction must be certain and specific as to the identification of the portion or part of the land in question. That requirement cannot be satisfied here.

[13] I therefore find that the Defendants have shown cause as required under s 172.

[14] I can either dismiss the application or convert it into a Writ action. The affidavits and summons are not in a form in which they can easily be converted as the pleadings. Further, the parties are willing to negotiate so I think that should be allowed to proceed and if in the end nothing eventuates from those negotiations then the Housing Authority can file the appropriate action in the appropriate form.

[15] Let there be no misunderstanding. This decision does not mean that the Defendants have conclusively proven that they have a right to occupy their portions of the land. That will be decided if and when the Housing Authority takes further legal action against the Defendants in which witnesses will be called and cross-examined.

COSTS

[16] Normally the Defendants would be entitled to costs but they did not use legal counsel so I make no order as to costs. I leave it up to the Defendants to compensate Ms Blake for her assistance.

ORDERS

[17] The Orders are therefore as follows:

1. The Plaintiff’s application for eviction of the Defendants filed on 19 November 2009 is dismissed.

2. There is no order as to costs.

Sosefo Inoke
Judge