Singh v Chand [2010] FJHC 178; HBC063.2010L (26 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 63 of 2010L

BETWEEN:

SAHA DEO SINGH
(f/n Ram Singh)
Plaintiff

AND:

SUSHIL CHAND
also known as SALESH (f/n Suruj Deo)
Defendant

Judgment of: Inoke J.

Counsel Appearing: Mr. K Qoro for the Plaintiff
No Appearance on 1st Call

Solicitors: Messrs Qoro Legal for the Plaintiff

Date of Hearing: 22 April 2010
Date of Judgment: 26 May 2010

FINAL JUDGMENT

INTRODUCTION

[1] This is an application for vacant possession under O. 113 of the High Court Rules 1988 by Originating Summons.

[2] The application, supported by the Plaintiff’s affidavit, was filed on 1 April 2010. The Originating Summons, the affidavit in support and the Acknowledgement of Service were served on the Defendant on 12 April 2010.

THE HEARING

[3] When the application came before me on 22 April 2010, the Defendant did not appear either personally or by counsel. Mr Qoro for the Plaintiff asked for an order for vacant possession and I informed him that I would deliver my judgment after consideration of the material. This is my judgment.

THE HISTORY OF THE LAND

[4] The Plaintiff, Saha Deo Singh, is the current registered lessee of Crown Lease No 17577 which is described as Lot 7 on Plan BA2416, part of Raviravi and Tauarau, in Ba, Viti Levu, containing an area of 1.0310 ha. It is an agricultural lease of what is known as "State land without title", held by the Director of Lands as lessor on behalf of the State. This farm was previously one of two lots making up a larger sugar cane farm, Crown Lease No 7437 (Lot 1 of BA 2415 and Lot 7 of BA 2416) owned by one Vijay Prasad.

[5] The larger sugar cane farm was the subject of an unsuccessful application by the Defendant against the then owner Vijay Prasad in WD 1 of 2001 for a declaration of tenancy and compensation. The written decision was annexed to the Plaintiff’s affidavit in support and I extract some of the background facts from the Tribunal decision.

[6] Vijay Prasad had bought the farm from one Sumintra Devi. Sumintra Devi is the grandmother of the Defendant. His grandmother and grandfather lived on the farm in Ba. Sometime in 1980, at his grandfather’s request, the Defendant left his father’s farm in Sabeto and came to live on his grandmother’s farm in Ba and help his grandparents farm the land. After his grandfather died in December 1999, the Defendant continued to work the farm and receive half of the proceeds. However, about a year later it became clear that the Defendant was not getting on with his grandmother. Their quarrels worsened and his grandmother took steps to sell the farm to Vijay Prasad. When the Defendant found out about his grandmother’s efforts, he attempted to lodge a caveat but was beaten to it by the transfer to Vijay Prasad being registered before the caveat was lodged. The transfer to Vijay Prasad was registered on 14 September 2000. In application WD1 of 2001 the Defendant took Vijay Prasad to the Agricultural Tribunal seeking a declaration of tenancy and compensation for what he claimed was the cost of the home that he erected on the farm. The Defendant’s application for tenancy and compensation was both dismissed by the Tribunal on 29 June 2003.

[7] Vijay Prasad then sold part of his farm (Lot 7) to the Plaintiff in this action on 27 August 2008. HiHuiThe Plaintiff’s lease became registered as Crown Lease No 17577 on 6 January 2009. It is for a term of 30 years commencing on 1 July 2008.

[8] The Agricultural Tribunal found that the Defendant was not a lessee but a mere licensee. The Tribunal came to that conclusion after finding that the Defendant had been chased by his grandfather on a previous occasion and had come back on to the farm only after his grandfather asked him to. Other factors taken into account were: his grandfather had control and management of the farm; he did not pay rent; and the arrangement between them was not a share farming arrangement but a family arrangement.

[9] The Plaintiff says that Vijay Prasad had reneged on his promise to give vacant possession when he bought the farm. The Defendant still lives on the farm. The Plaintiff’s attempt in December 2009 to get rent from the Defendant through his previous solicitors failed and his current solicitors gave notice to the Defendant to vacate within 21 days from 5 March 2010 by virtue of him being a trespasser.

THE LAW

[10] Order 113 was considered by Pathik J in Baiju v Kumar [1999] FJHC 19; [1999] 45 FLR 74 (31 March 1999):

This action is brought under Or 113 of The High Court Rules which inter alia in Rule 1 reads as follows:

"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order."

The question for Court’s determination is whether the plaintiff is entitled to possession under this Order. To decide this the Court has to consider the scope of the Order. This aspect is covered in detail in The Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:

"This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers."

As to the application of this Order it is further stated thus:

"The application of this Order is narrowly confined to the particular circumstances described in r.1. i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593."

This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:

"this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto."

Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others [1972] 3 All E.R. 629 squatters and trespassers are defined as:

"he is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can ....."

There Goulding J. said that:

".....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession....."

Another definition of "trespasser" is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:

"A trespasser is a person who has neither right nor permission to enter on premises".

Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] UKHL 1; [1972] A.C. 877 at 904:

"The term 'trespasser’ is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another’s land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers".

.

.

I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson [1840] EngR 898; (1840) 12 Ad. & El 624 where he said:

"..... A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner...."

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I would say that Order 113 is akin summary procedure under s169 of the Land Transfer Act Cap. 131. It is an effective and speedy relief to property owners in cases where tenants or other persons have no right to continue to stay in possession.

[11] I recently considered the application of O. 113 in Kumar v Kumar [2010] FJHC 23; HBC157.2008L (1 February 2010) and Sabha v Merrum [2009] FJHC 115; HBC350.2008 (9 June 2009). In both of these cases I refused the application for vacant possession because I was not satisfied that on the affidavit material the defendants were trespassers or persons who had not rights other than as mere licensees.

[12] The Defendant in this case in my view is in a different position. I am of the same view as the Agricultural Tribunal that the Defendant is a licensee. Whatever permission that he had to remain on the farm was withdrawn by the Plaintiff’s solicitors on 5 March 2010. He has no right to remain on the farm. However, I think he should be given time to vacate and I think a month is a reasonable time.

COSTS

[13] I award nominal costs of $300 to be paid by the Defendant.

ORDERS

[14] The Orders are therefore as follows:

a. The Defendant shall give vacant possession of the land being Crown Lease No 17577 described as Lot 7 on Plan BA2416, part of Raviravi and Tauarau, in Ba, Viti Levu, containing an area of 1.0310 ha within 30 days from the date of this judgment.

b. The Defendant shall pay the Plaintiff’s costs of this action of $300 within 30 days from the date of this judgment.

Sosefo Inoke
Judge