Kadavu Cooperative Association Ltd v Kuruvoli [2011] FJHC 125; HBC112.2010 (2 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 112 of 2010

BETWEEN

KADAVU CO-OPERATIVE ASSOCIATION LIMITED
in the Republic of Fiji Islands.
Plaintiff

AND

KARALAINI KURUVOLI
Vunisea, Kadavu in the Republic of Fiji Islands, Businesswoman.
1^st Defendant

AND

ALL NATIONAL CHRISTIAN FELLOWSHIP
Kadavu Co-operative Depot, Vunisea, Kadavu in the Republic of Fiji Islands.
2nd Defendant

BEFORE : Master Deepthi Amaratunga

COUNSELS : NACO CHAMBERS for the Plaintiff

Date of Hearing: 3rd February, 2011
Date of Ruling : 2nd March, 2011

RULING

A. INTRODUCTION

1. The Plaintiff has filed the originating summons in terms of Section 169 of the Land Transfer Act. Defendants did not appear or filed any objections to this application.

2. The Plaintiff has failed to establish their rights in terms of the Section 169 of the Land Transfer Act. No document to establish proprietorship filed.

B. FACTS

3. Plaintiff filed this action in 14th April, 2010 and an affidavit of the Ratu Samuela Nagatalevu Nawalowalo is filed and states as follows:

1. That he is the chairman of the Kadavu Co-operative Association Ltd, the Plaintiff;
2. They are the registered proprietors in this piece and parcel of land known as NLTB Ref 4/5/1823 situated at Vunisea, Kadavu;
3. Despite various attempts to remove the Defendants from the property they remain on the property.
   

4. It is to be noted in the paragraph 4 of the said affidavit it is stated that a copy of the lease No NLTB Ref 4/5/1823 is annexed marked 'A', but the only annexed document to the affidavit is not marked as 'A' and it is not a certified copy and the heading of the document reads as "Lease Particulars For File 4/5/1823". This clearly falls short of the document described in the affidavit and also not a document that can be accepted as proof of the proprietorship of the land.

5. No affidavit in opposition filed, though an affidavit of service is filed by the Plaintiff.

C. LAW AND ANALYSIS

6. The Section 169 of the Land Transfer Act reads as follows:

169. 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.(emphasis is added)

7. Though there is no affidavit in opposition filed the Plaintiff has to fulfill the requirements in terms of the Section 169 of the Land Transfer Act to obtain an order of the court to eject the defendants from the premises.

8. The paragraph 4 of the affidavit in support states "That we are the registered proprietors in this piece and parcel of land known as NLTB Ref 4/5/1823 situated Vunisea, Ladavu. A copy of the said lease No NLTB Ref 4/5/1823 is annexed hereto marked "A". There is no lease annexed to the affidavit. There is no marking on the document annexed either and the document annexed is not a certified copy and it has a heading "Lease, Particulars for File 4/5/1823". It is to be noted that this document is not a lease and as the heading of the document denotes a internal correspondence regarding a file and cannot be considered as a lease agreement.

9. It is to be noted that a lessor can institute an action in terms of Section 169 (b) and (c) and the prerequisite of the 169(b) is that there should be a lease agreement where there is a clause for the lessor to reenter when there is arrears of lease rental. In this application not only there is no such clause, but the Plaintiff has failed to file any lease agreement.

10. In terms of Section 169(c ) there is a prerequisite of legal notice to quit and the time period in the quit notice has to be determine in accordance with the Law as well.

11. There is no quit notice attached or details of any service of quit notice in this application. It is pertinent that in pursuant to Section 169 of the Land Transfer Act the plaintiff has to prove the minimum requirements to obtain an order for possession. The Plaintiff has not filed any legally valid document to establish that they are the last registered proprietor of the land and has failed to file any lease agreement.

12. It is pertinent to note that at the hearing of this application court granted the Plaintiff an opportunity to submit additional materials by way of supplementary affidavit, but the supplementary affidavit that had been filed does not contain any annexed documents and falls short of the requirements under Section 169 of the Land Transfer Act.

D. CONCLUSION

13. Section 169 of the Land Transfer Act cannot be resorted to obtain possession unless the Plaintiff has established the rights in terms of the said provision. Plaintiff has failed to establish their rights to this land, though the Plaintiff is granted several opportunities to supply essential requirements by way of supplementary affidavit they have failed to supply the necessary documentary proof, and though the application is unopposed this application is struck out for the reasons given above.

Dated at Suva this 2nd day of March, 2011

.................................................
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva