Kumar v Ahmed [2011] FJHC 44; HBC122.2009 (11 February 2011)

IN THE HIGH COURT OF LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 122 of 2009

BETWEEN:

MANOJ KUMAR
father's name Lekh Ram of Salovi,Nadi
Plaintiff

AND:

SAHEED AHMED
father's name Suleman Mohammed of Nawaka, Nadi, Businessman.
Defendant

Before: Master Anare Tuilevuka
Counsel: Messrs H.A. Shah for the Plaintiff
: In Person – Defendant

Date of Ruling: 11th of February 2011

RULING

[1]. The delay in this ruling is much regretted. Before me is an application by the plaintiff under section 169 of the Land Transfer Act (Cap 131) seeking an Order that the defendant do give immediate vacant possession of all that piece of property occupied by him upon Crown Lease No. 17744.

[2]. The application is supported by the Affidavit of the plaintiff sworn on 22nd July 2009 and filed herein. Kumar annexes to his affidavit a copy of Crown Lease No. 17744 which confirms that he is indeed the last registered proprietor of the land in question.

[3]. Kumar says simply that the defendant is in unlawful occupation of the part of the said lease. He also deposes that the said lease is a crown protected crown lease and there has been no prior consent in writing of the Crown/Lands Department to the defendant's occupation of his property. He also deposes that on many occasions he had demanded of the defendant to give immediate vacant possession but to no avail. That led him to send to the defendant through his solicitor a notice to vacate dated 30th June 2009, a copy of which is annexed to his affidavit.

[4]. The defendant opposes the application. By his affidavit sworn on the 21st of August 2009 and filed herein – he deposes that he entered into a Sale and Purchase Agreement with one Rai Mati who is the mother of the plaintiff. Pursuant to that agreement, he paid to Rai Mati the sum of $3,000 deposit on the 21st day of December 1993. A further deposit of $2,000 was paid by him to Rai Mati on the 21st of March 1994.

[5]. That the said sale and purchase agreement was varied on 15th June 2001 and which variation was duty stamped by the Commissioner of Stamp Duty by the 3rd of July, 2008.

[6]. On the 2nd of November 1995, the defendant says that he received a letter from Messrs Singh And Fatiaki advising that the plaintiff's mother, Rai Mati was still interested in selling the land to him. Then on the 11th day of December 1996, the defendant wrote a letter to the Divisional Surveyor Western complaining about the delay on the part of the Lands Department. The defendant says that to date - he has paid more than $45,000 which is over and above the amount of $30,000 agreed between him and Rai Mati.

[7]. He also says that Rai Mati had signed a transfer of the entire Crown Land CL7157 to him. On the 19th day of June 2001, the defendant says he caused another sale and purchase agreement to be executed which he then submitted to the Lands Department for consent. That the Divisional Surveyor Western then asked him to remove a caveat which he had placed on the Title as a condition for consent. He says that the consent was given on the 2nd of August 2001. On the 4th of March 2002 he received another letter from the Divisional Surveyor Western asking him to comply with the requirements of clause 9 of the Sale And Purchase Agreement.

[8]. That thereafter a subdivision was approved. Annexed to his affidavit is the subdivision plan marked with letter "H".

[9]. That on the 6th of May 2004, a letter from the Divisional Surveyor Western informed him and Mati that the lot had been wrongly surveyed and included in lot 1 ND 5158 and was already leased to one Warda Raju.

[10]. On the 14th August 2007, he then wrote to the Divisional Surveyor Western to investigate the occupation and development done by one Manoj Kumar (the plaintiff).

[11]. He said he did not receive any response to his letter in paragraph 12. Then on 1st October 2008, he requested his lawyer to write to the Director of Lands and Surveyor General to issue a lease to him of the land he had purchased from Mati. No response was ever received to his letter. Reminders were then sent to the Director of Lands on 20th March 2009 and 8th June 2009. He deposes that upon the reliance of the consent of the Director of Lands, he then constructed a massive workshop and with consent of Mati, he got electricity power connected to the workshop.

[12]. He maintains that the plaintiff had gotten himself registered fraudulently as lessee and further says that the plaintiff has obtained the registered lease subject to or with constructive notice of his occupation since 1993.

[13]. The particulars of frauds he alleges are as follows:

• (a) knowing fully well that I have bought the land in lands Department reference No. 4/10/1462 CL 7157 got himself registered as a lessee.
  
• (b) that the plaintiff acquired this land pursuant to letters of administration de-bonis non and he should have completed the transaction made by his late mother first with me the deal with the rest of the land
  
• (c) trying to secretly defeat my interest with full knowledge of purchased of the land by me.
  
• (d) unlawfully forcing or conning with the Lands Department to prepare a new lease under his name instead of having it transmitted from his late mother's name to his name pursuant to Succession and Probate Act, thereby depriving me of my interest in the said land.
  
• (e) used undue influence, threat of violence and intimidation on me to withdraw caveat which I filed in the Probate Registry annexed is the copy of caveat and advertisement marked in annexure "O".
  

[14]. He is adamant that he had purchased the land and the possession was given to me by the plaintiff's late mother in 1993 then vendor pursuant to the paragraph 3 of the Sale and Purchase Agreement. He also deposes that he had carried out development without any objection from the Lands Department or plaintiff's late mother and had even built an extended workshop with machines and stock worth more than $300,000.00 (Three thousand dollars).

[15]. He says that if he is evicted, he would suffer irreparable damage and the plaintiff is in no position to compensate him for his losses. He is shocked as to how the plaintiff managed to secure the lease which he had already paid consideration for it which was even consented to by the Lands Department.

[16]. The defendant says he has an equitable title to land by virtue of sale and purchase agreement consented to the Lands Department and duly executed registrable transfer.

[17]. During the hearing, Mr. Shah meticulously guided me through the documentation that the defendant had tendered. I must agree with Mr. Shah that the documentation tend to indicate that the consent that the defendant relies on were given retrospectively. I also note the submissions of Mr. Shah that the leasehold on which the sale and purchase agreement purportedly entered into between Mati and the defendant no longer exists.

[18]. All in all, the following emerge clearly from the affidavits and submissions:

• (i) that there was a sale and purchase agreement between the plaintiff's late mother and the defendant.
  
• (ii) that I cannot determine from the affidavits filed the current status of that piece of land that was purportedly the subject of that agreement.
  
• (iii) that the defendant appears to have carried out substantive improvement on the land in question.
  
• (iv) that – it appears that at some point in time – a new lease was issued.
  
• (v) that – part of the confusion in this case - seemingly – was caused by the Director of Lands office.
  

[19]. In light of the above – I am reluctant to grant order in terms of the section 169 application. There are a lot of triable issues involved which all centre around the question whether or not the plaintiff, (by virtue of the purported agreement he had entered into, and the consideration he has paid, and the consent of the director of lands, and the fact that the plaintiff in this case is the administrator of Raj Mati's estate – and the fact that he has always been in occupation of the land at all material times) - has an equitable proprietary interest in the land.

[20]. Accordingly – I will not grant order in terms of the application. Instead, I will, pursuant to section 172 of the Land Transfer Act (Cap 131) which empowers the court to make any order or impose any terms he may think fit where the defendant has established some prima facie right to possession, and also pursuant to Order 28 Rule 9(1) of the High Court Rules (1988) – make the following orders:

• (i) these proceedings are to continue as if begun by writ
  
• (ii) affidavits filed are to stand as pleadings with liberty to the parties as follows to add thereto:
  
  • (a) if the plaintiff wishes to add thereto his affidavit – he must do so in 21 days (i.e by 4th of March 2011).
    
  • (b) 21 days thereafter to the defendant to file his affidavit in reply and adding to his original affidavits (i.e by 25th of March 2011).
    
  • (c) 7 days thereafter to the plaintiff for any reply (i.e by 01st of April 2011).
    

[21] This case is adjourned to 04th of April 2011 for mention. Costs in the cause.

Anare Tuilevuka
Master

At Lautoka
11th of February 2011.