Laudola v Ratucadra [2010] FJHC 219; HBC030.2009 (29 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 30 of 2009

BETWEEN:

SAILASA LAUDOLA
of Nadi, Senior Fireman.
Plaintiff

AND:

ROPATE RATUCADRA
of Lot 30 SO 2856, Vunamoli Place, Matavolivoli, Nadi.
Defendant

Before: Master Anare Tuilevuka

Counsels: Messrs S.B. Patel & Company for the Plaintiff
Messrs Babu Singh for the Defendant

Date of Ruling: 29th June 2010

INTRODUCTION

[1] This is a section 169 application. The plaintiff’s summons dated 25th February 2009 requires the defendant to show cause why he should not hand over vacant possession of Lot 30 on SO 2856, Vunamaoli Place, Matavolivoli, Nadi and comprised in Native Lease No. 24024 ("property").

[2] The plaintiff’s affidavit sworn on the 29th of January 2009 is filed in support of the application.

BACKGROUND

[3] The plaintiff is the registered lessee of the property. A certified true copy of the said lease is attached to his affidavit and marked ‘A’. Housing Authority had a mortgage over the property.

[4] The defendant was a tenant of the plaintiff on the property. The plaintiff relied on income from the rental to pay off the mortgage to Housing Authority. However, the defendant was failing to keep up with rental payments. That resulted in the plaintiff falling into arrears with his mortgage payments to Housing Authority. The Housing Authority then took action and advertised the property on mortgagee sale. The defendant was amongst those who responded to Housing Authority’s advertisement. In due course, the Housing Authority offered the property to the defendant.

[5] According to the plaintiff, the defendant then defaulted in his payments to Housing Authority. And on the 15th of July 2004, the Housing Authority cancelled its offer to the defendant. A copy of the Cancellation Notice is annexed to the plaintiff’s affidavit and marked "B".

[6] According to the plaintiff, the Matavolivoli Association of Tenants ("MAT") meanwhile had a pending action in the Lautoka High Court in High Court Civil Action No. 116 of 1999. That civil action was instituted against the Housing Authority in respect of defective houses in the Matavolivoli Subdivision which included the said property.

[7] According to the plaintiff, that action was settled out-of-court on 27th of October 2005 and on 23rd of March 2007, the property was returned to the plaintiff. However, according to the Lautoka High Court registry, the above action is still pending and will in fact be called before Mr. Justice Inoke today for mention to review settlement.

[8] In any event, according to the plaintiff, as part of the settlement, the Housing Authority re-structured the plaintiff’s loan debt. A copy of the said Variation of Offer is annexed and marked "C" to the plaintiff’s affidavit.

[9] It appears that since then, both the plaintiff and the Housing Authority have tried to get the defendant to vacate the property but to no avail. Notices to Quit dated 12th of April 2007 by the Housing Authority and 11th of September 2008 by the plaintiff were served on the defendant on the 25th of April 2007 and 30th of September respectively. Copies of these Notices are annexed to the plaintiff’s affidavit and marked ‘D’ and ‘E’ respectively.

DEFENDANT’S CASE

[10] On 31st August 2009, the defendant filed his affidavit. He acknowledges that the plaintiff was the registered owner of the property in question. However, he says that the property was sold under mortgagee sale to him by Housing Authority in 2001.

[11] The defendant denies ever receiving any demand notice or any cancellation of the lease offer by the Housing Authority. He says he never acknowledged service of these notices. He says that accordingly, the purported cancellation of the offer by Housing Authority was unlawful and void.

[12] The defendants lawyers advise him that, once the defendant has communicated his acceptance of the Housing Authority offer, a binding contract was thereby created and accordingly, the Housing Authority could not cancel or terminate the offer.

[13] He admits being aware of a representative action instituted by a Mr. Koroqica against the Housing Authority in Civil Action No. 116 of 1999. However, he is advised by his solicitors that there are injunctions in place against the Housing Authority not to sell the property until the determination of the action which he says is still pending in Court.

[14] He denies any knowledge of an out of court settlement in Civil Action No. 116 of 1999. He says he should have been consulted in any settlement talks as the property was sold to him and that he had made repayments to the Housing Authority. He annexes copies of the following:

(i) pre-contractual disclosure

(ii) offer of Loan to purchase property

(iii) acceptance of the offer duly signed

(iv) statement of Account

[15] The defendant is unaware how the property was returned to the plaintiff and how the plaintiff’s loan came to be restructured by Housing Authority. He is aware though that after MAT instituted legal action against the Housing Authority, Housing Authority officers then went about visiting each tenant at Matavolivoli promising that the Authority would make good the defects on each house by providing financial facilities.

[16] He says that that the plaintiff and the Housing Authority had colluded with each other to return the lease property to the plaintiff and alleges that their actions amount to fraud. His solicitors also advise him that Housing Authority’s action in respect of its notices and cancellation of the offer was against the Consumer Credit Act 1999. As such they are acting illegally.

[17] The defendant further says that he had caused his solicitors to do a recent search of the leased property from the office of the Registrar of Titles. The search shows that the lease was never transferred unto the defendant’s name by the Housing Authority despite the leased property being sold to him by Mortgagee sale and payment being effected.

[18] He further says that since the MAT instituted legal action against the Housing Authority, he had been advised to discontinue repayment to the Authority because of the deteriorating condition of the houses with the slab wall and the floor cracking and pieces falling out.

[19] He says his family is in occupation of the property. He says:

"That the Plaintiff is no longer living or occupy such property. I am confused as to why the Housing Authority made an offer for restructure of debt to the plaintiff when it has knowledge that I bought the property by mortgagee sale"

HEARING DATE

[20] On the date of the hearing of this case, the defendant did not appear. His counsel appeared though only to announce that the defendant has not been communicating with him at all. The Solicitors’ staff however have left messages with his wife but the defendant does not bother to return calls. When staff members managed to talk to him on the morning of the hearing, the defendant rude and curt reply was:

"What case you talking about?"

[21] An affidavit of service of Raijeli Raqio deposes that the server had duly served the defendant with a notice of intention to withdraw as counsel and also advising the defendant of the hearing date. On that basis, I granted leave to Mr. Singh to withdraw as counsel and then proceeded with hearing Mr. Patel.

THE LAW & ANALYSIS

[22] Section 169 of the Land Transfer Act provides as follows: -

"The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired."

[23] That the plaintiff is the registered proprietor of the property is clear from both affidavits filed. The defendant has to ‘show cause’ why he should not give up vacant possession.

[24] Sections 171 and 172 of the Act) provide 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 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."

[25] The Supreme Court in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said as follows on the requirements of section 172:

"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."

[26] Obviously, the defendant has some gripe over how the Housing Authority has handled his case. Not much is known though as to whether he in fact paid any money to Housing Authority and if so, how much.

[27] The defendant may have a cause of action against the Housing Authority, but he has simply not shown anything to impeach the plaintiff’s title on the property. And so the indefeasibility of the plaintiff’s title is intact by virtue of sections 38, 39 and 40 of the Land Transfer Act.

[28] Whatever cause of action the defendant may fathom against Housing Authority will have to be one based on a breach of contract or agreement. I am convinced that even if the defendant was to mount such a case, and even in the unlikely event that he was to succeed, it will still not be strong enough a case to defeat the plaintiff’’s indefeasible title. In other words, the defendant may be entitled to damages as against Housing Authority but his case is not strong enough to deny the plaintiff’s title to the property in question.

[29] Mr. Patel submits that the defendant’s allegation of fraud against the plaintiff and Housing Authority are baseless. He calls the defendant’s case a "sham". I cannot agree more!

ORDERS

1. The defendant is to vacate Lot 30 on SO 2856, Vunamaoli Place, Matavolivoli, Nadi and comprised in Native Lease No. 24024 ("property") within 14 days of the date of this judgement.

2. The defendant is to pay the plaintiff’s costs which, in the circumstances of this case, I summarily assess at $850-00 (eight hundred and fifty dollars) to be paid within 28 days of the date of this judgement.

Anare Tuilevuka

At Lautoka MASTER
29th day of June 2010.