Nasinu Land Purchase and Housing Co-operative Society Ltd v Nair [2011] FJHC 105; HBC50.2010 (2 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 50 OF 2010

BETWEEN:

NASINU LAND PURCHASE AND HOUSING CO-OPERATIVE SOCIETY LIMITED
PLAINITFF

AND:

REHANA DEVI NAIR
DEFENDANT

Appearances: Mr. Raman Singh for the Plaintiff.
Defendant in Person.

Date / Place of Judgment: Wednesday, 02nd February, 2011 at Suva.

Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

LAND TRANSFER ACT, CAP. 131 –application under s. 169 of the Land Transfer Act for defendant to show cause why an order for immediate vacant possession should not be made against her– defendant stated that she wishes to buy the land as she has paid some money towards purchase of the same and some money to another person, not the plaintiff, who sold the property to her-defendant also raises the issue that plaintiff gave the defendant permission to connect electricity and she has thus expanded money on the property- no cause shown-the plaintiff is entitled to vacant possession of the said property- defendant given time to relocate or discuss purchase of property with the plaintiff. – No order for costs.

____________________________

Legislation
Land Transfer Act, Cap. 131.

Case Background

1. The plaintiff filed a summons on the 4th day of March, 2010 with a supporting affidavit through which it is seeking an order for vacant possession of the land and premises comprised and described in the Certificate of Title No. 12468 known as Lot 1 on DP No. 3130, containing an area of 326a 2r, situated in the District of Naitasiri, and the costs of bringing the application.
2. The application is opposed by the defendant.
   

Plaintiffs Grounds/Submissions in Support

3. The plaintiff stated that it is the last registered proprietor of the property and the defendant has been occupying the same as a trespasser. The defendant has on the 18th day of December, 2009 been served with a notice to vacate the said property but the defendant has refused to comply with the terms of the notice to quit.
   

Defendants Grounds/Submissions in Opposition

4. The defendant filed an affidavit through which she deposed that:-
   
   • She is staying on the property since 14th February, 1994.
     
   • The land that she is occupying was bought from one Krishna Chand on 14th February, 1994. She only came to know that the land belongs to the plaintiff when she was served with a notice to vacate. They have paid a sum of $1,800 to one Krishna Chand as purchase price for the property.
     
   • On 10th November, 1999, the plaintiff gave the defendant authority to connect electricity on the said property.
     
   • Approximately $11,000 was used to upgrade the land which the defendant is occupying.
     
   • On the 12th day of October, 2006, the plaintiff started demanding the full purchase price of the property without a proper valuation. Her daughter is in Australia and will help the defendant buy the said land. She is medically unfit and cannot hear properly as well.
     
   • Her husband paid some money to the plaintiff and the plaintiff is aware of that. She wishes to buy the same land after proper valuation of the same.
     

Plaintiffs Submissions in Reply

5. Mr. Singh submitted that the defendant has not bought the land from the plaintiff. Krishna Chand was not the registered proprietor of the land and the defendant may have bought the lean to house on the land but not the land. The letter to connect electricity was given to the defendant to assist him get electricity. He was not a tenant nor did he pay any rent. He was inadvertently referred to as a tenant in the letter of consent.
   
6. It was also submitted that the defendant intended to buy the land and so a valuation was carried out. The land was valued at $75,000. The plaintiff was willing to sell the land to the defendant in the sum of $71, 893.52 which sum was to be paid within 3 months with effect from the 12th day of October, 2006. The defendant defaulted in the payments.
   
7. The defendant's husband made a payment of $225.00 towards the purchase of the said land with an intention to buy the same but after that no payments have been made. The defendant has not made any efforts to purchase the said land or entered into a sale and purchase agreement to buy the same.
   

The Issues, the Law and the Determination

8. The only issue for determination before the court is whether the defendant has shown cause as to why an order for vacant possession should not be made against her.
   
9. The plaintiff is indisputably the last registered proprietor of the subject property and as such is entitled to bring a summary action for vacant possession under s. 169 (a) of the Land Transfer Act Cap. 131.
   
10. Section 172 of the Land Transfer Act states that " 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,... and he may make any order and impose any terms he may think fit: provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:..."
    
11. One Krishna Chand sold the property to the defendant. On the 14th February, 1994 Krishna Chand wrote a note to the defendants husband:-
    

"I undersigned sold my lean – to house with block of land to Mr. MAHENDRA NAIR f/n MADHWAN for one thousand eight hundred dollars only (1,800) and the deposit is also paid for the block of land to Nasinu Land Purchase".

12. The purchase from one Krishna Chand was of the lean to house and not the land that belonged to the plaintiff. The seller Krishna Chand did not have any right to sell the land as it was not owned by him. The plaintiff must not suffer because its land was sold to another party without its knowledge.
    
13. The dealing is purely between one Mr. Krishna Chand and the defendant. It does not concern or bind the plaintiff as there is no evidence that any money was paid to the plaintiff.
    
14. The plaintiff did give the Fiji Electricity Authority permission to connect electricity but that was only on a temporary basis to assist the defendant. The plaintiff also indicated in the letter of consent that the defendant had to move to a new site and so any arrangement to connect electricity would be on a temporary basis. There cannot be any mistaken belief by the defendant that the defendant was given permission to occupy the said land permanently. The plaintiff had made its position clear via the letter written to the Fiji Electricity Authority. It is pertinent to cite the letter that was written by the plaintiff:-
    

"This is to inform that Mr. Mahendar Nair is a tenant of Nasinu Land & Purchase Housing Co-op Society Ltd.

Please kindly do the needful regarding his new installation. This is only on temporary basis as in the near future he will have to move to a new site".

Underlining is Mine for Emphasis

15. It is undisputed that the parties had made oral arrangements for sale of the land and there is no action taken to purchase the same apart from the payment of $225.00 by the defendants' husband. The defendant cannot use this nominal payment to hold onto the land and stay there without making any arrangements to purchase the same.
    
16. She has no right to stay on the property until she buys the same. I note that she wishes to purchase the property and she is at liberty to do so but the plaintiff is entitled to its relief of vacant possession.
    
17. The defendant, in my judgment, must be given some time to discuss the aspect of buying the property failing which she has to vacate the land. I should give her a time frame of three months to assist her to negotiate purchase of the said property.
    

Final Orders

18. The defendant has failed to satisfy the court that she has a right to remain and occupy the subject property, as a result of which she must give vacant possession to the plaintiff on or before the 30th day of April, 2011.
    
19. There shall be no order for costs against the defendant.
    
20. Orders Accordingly.
    

Anjala Wati
Judge

02nd February, 2011
At Suva

To:

1. Mr. R. Singh, Counsel for the Plaintiff.
2. The Defendant, Ms. Rehana Devi Nair.
3. File: HBC 50 of 2010