Wati v Bogivitu [2010] FJHC 362; HBC013.2010 (26 August 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 13 of 2010

BETWEEN:

SUSHILA WATI
Plaintiff

AND:

LOTAWA BOGIVITU
Defendant

Counsel: Maqbool & Co for the Plaintiff.
Penijamini Lomaloma Esq for the Defendant.

Date of Judgment: 26th August, 2010

JUDGMENT

This is a summons for ejection under Sec 169 of the Land Transfer Act. The plaintiff is the registered proprietor of the land known as Crown lease No 1889 L.D 4/9/1318 Lot 6 Sec 18 Labasa Town. The land was earlier a Crown Land but converted into a Native Land and at present it is governed by the Native Land Trust Act.

The defendant is occupying part of the said land as tenant at will. The defendant has been given a notice dated 15.02.2010 to vacate the land.

Despite that notice the defendant continues to occupy the land. The plaintiff averts that the defendant has no lawful right to continue occupation of the said land.

Therefore the plaintiff prays that order be made against the defendant to give immediate vacant possession of the said property with costs.

In support of the plaintiff's application two affidavits were filed by the plaintiff.

Opposing the plaintiff's affidavits, the defendant filed an affidavit. The defendant admitted the plaintiff's proprietorship. According to the defendant, the plaintiff and the defendant had entered into a written tenancy agreement for a period of 3 years. The defendant alleged that no repairs were carried out on the premises since 2006 though required by the Labasa Town Council and the defendant had been complaining to the plaintiff's son about the condition of the said premises and because of that the plaintiff tried to evict the defendant.

According to the defendant he occupied the building under the lease of the previous tenant. The defendant used to pay $300.00 per month to the plaintiff's son.

Annexure 'C' shows that the defendant was noticed by the plaintiff about the proposed increase of the rent. Annexure 'B' of the plaintiffs affidavit shows that the premises was given on $300.00 rent and the plaintiff intended to increase it by another $100.00.

Plaintiff's Affidavit in reply

The plaintiff's position is that the purported agreement between the plaintiff and the defendant is null and void since it lacks the consent of the Director of Lands pursuant to section 13 of the Crown Lands Act. The plaintiff further stated that the consent of the Director of Lands to remove the defendant is not necessary as alleged by the defendant.

Both parties have filed their written submissions. The plaintiff relies on section 169 and 172 of the Land Transfer Act.

It was contended on behalf of the plaintiff that under Section 172 of the Land Transfer Act the defendant has to show cause as to why he may refuse to give vacant possession of the land.

Section 169 of the Land Transfer Act provides:

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 arrears 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 quite has been given or the term of the lease has expired.

Section 172 of the Land Transfer Act provides:

" 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 possession of the land, the Judge shall dismiss the summons with costs against the proprietor, mortgagee or lessee or he may make any order and impose any terms he may think fit."

In view of the above provisions the issue for determination in the instant case is whether the defendant has shown cause to remain in possession of the property, in accordance with Sec 172 of the Act.

Section 12 of Native Land Trust Act provides:

"Except as may be otherwise provided by regulations make hereunder, it shall not be lawful for any lessee under this act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the board as lessor or head lessor first had obtained".

On behalf of the defendant, It was submitted that the notice to vacate issued by the plaintiff did not terminate the tenancy and the plaintiff continued to accept and demand rent from the defendant after this action was filed, thus asserting the plaintiff's rights under the tenancy agreement and therefore the plaintiff cannot claim that the tenancy agreement is over.

In the present case the plaintiff is the registered proprietor of the land which is governed by the Native Land Trust Act but neither the plaintiff nor the defendant had obtained the prior consent of the Board when they entered into the lease agreement though the property in dispute is a native land.

Therefore in the absence of the prior consent of the Board, the purported agreement upon which the defendant attempts to justify his occupation as a tenant is null and void.

Further, it was submitted by the defendant that since there are conflicting statements contained in affidavits filed by the parties, this case can only be resolved by a trial.

However, the defendant has not identified what the conflicting statements are.

Even if it is presumed that there exists conflicting statements, still this matter can be determined summarily because the purported agreement, upon which the defendant claims his right to occupy the building, is patently wrong in law for the reasons given above and hence the defendant has no right to remain in the property upon an unlawful agreement.

When summons for eviction under Sec 169 of the Land Transfer Act are filed the defendant has to show cause why he should not be evicted.

In the instant case the defendant no longer has any right to remain in the property in dispute, because the agreement between the defendant and the plaintiff is unlawful from its inception in view of the fact that the consent of the Director was not obtained.

The plaintiff's claim for possession is based on the undisputed ground of her registered proprietorship. The defendant is in occupation of the building and he has been served with Notice to Quite and despite that he continues to occupy the property.

In the present case the defendant cannot be considered as a lawful tenant of the plaintiff since he had never been in lawful occupation of land and therefore, could not rely on an illegal agreement to remain in possession. In fact the defendant is a trespasser.

Hence the defendant is not entitled to seek remedies available to a lawful tenant.

In the light of the above the defendant's occupation of the building is also unlawful. Hence the defendant cannot claim any right upon a contract which is null and void from its incepton.

In Mistry Amar Singh v. Kulubya [1963] 3 A.E.R. 499 it was held that a registered owner of the land was entitled to recover possession because his right to possession did not depend on the illegal agreement in that case but rested in his registered ownership and as the person in possession could not rely on the agreement because of their illegality he could not justify his remaining in possession.

The above position was endorsed in Hamid Khan and Rahmat Khan v .Simon Prasad [1996] FJHC 85.

The cardinal importance of obtaining the prior consent of the Native Land Trust board before dealing with a land of this nature was enunciated in Chalmers v. Pardoe [1963] 3 ALL.E.R.

After full and anxious consideration of the whole matter, I hold that the agreement between the plaintiff and the defendant was entered without obtaining the consent of the Native Trust Board as required by Section 12 of the Native Land Trust Act and therefore it was unlawful.

I therefore find that the defendant has not shown any right to remain in possession or that there are any triable issues. Hence, I grant the order for possession sought by the plaintiff. The defendant is ordered to deliver immediate vacant possession of the said building to the plaintiff.

However, I stay the execution of the judgment for 30 days from the date of the delivery of the judgment.

The cost is summarily assessed as $300.00.

Pradeep Hettiarachchi
JUDGE

At Labasa
26th August, 2010