Native Land Trust Board v Veisamasama [2011] FJHC 632; HBC34.2011 (6 October 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 34 of 2011

BETWEEN :

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act Cap 134.
PLAINTIFF

AND :

VILISI VEISAMASAMA
of Colo – i – Suva, Domestic Duties.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Ms. Macedru L. G. of NLTB Legal Dept for Plaintiff

Mr. Nawaikula Niko of Nawaikula Esquire for Defendant.

Date of Hearing: 16th August, 2011

Date of Ruling: 6th October, 2011

RULING

1. INTRODUCTION
   

1. This is an application filed in terms of the Order 113 of High Court Rules of 1988. The Plaintiff is the Native Land Trust Board (NLTB) and the land involved is a native land. Plaintiff leased this property to late Jone Veisamasama, upon the death of said lessee the lease hold rights were transferred to Public Trustee by the transmission of death and later it was transferred to the Defendant and subsequently it was transferred to Ian Chute. The said Ian Chute had left the land in 2002 at the expiry of the lease. The Defendant is the wife of late Jone Veisamasama who remained in the property with the license of the said Ian Chute. She does not have a right to stay in the property, but now state that she had made an application for residential permit to remain on the property.
   

2. FACTS
   

2. The Plaintiff filed this action in terms of the Order 113 of the High Court Rules of 1988 and in the affidavit in support it states as follows:-
   
   1. Native Lease No 1471 which the subject of this proceeding was agriculture lease approved for term of 10 years.
      
   2. The said lease was extended by virtue for an automatic statutory extension of twenty years, which the lease was to then expire in 2002.
      
   100. On 1st April, 1985 the lease was transferred to one Jone Veisamasama via transfer no. 221693 who is the spouse of the defendant herein.
        
   4. Sometime later the Defendant's spouse who was the lessee died and title was transferred to the Public Trustee of Fiji on 31st October, 1994 via transmission of death on transfer no. 367931.
      
   5. It was later transferred to the Defendant by transfer no. 387620 and the Defendant transferred it to one Ian Chute by transfer no. 388821 on 22nd December, 1995.
      
   6. The lease to said Ian Chute has expired in 2002 and he had left the property, but the Defendant still remains in a part of the said property.
      
3. The Defendant filed an affidavit in opposition and admitted the above position taken by the Plaintiff, but state that she remained in the property in the house and that there was an agreement with Ian Chute, but also state that it was not a written agreement, but no affidavit from said Ian Chute was filed to establish the position.
   
4. The Defendant state that her occupation is not illegal and also states that she has performed the rituals of the natives to remain in the native land.
   
5. An affidavit of one Neori Vakatovolea is filed in support and he states that he is the 'customary head' of the Turagani Yavusa Danuku and Turagani Mataqali Lomanikoro and my Yavusa and Mataqali are customary owners of the land currently occupied by the Defendant. The relevant paragraph is quoted below
   

'I NEORI VAKATOVOLEA, make oath and say as follows:

1. That, I am the customary head, being the Turagani Yavusa Danuku and Turagani Mataqali Lomanikoro and my Yavusa and Mataqali are customary owners of the land currently occupied by the Defendant.'
   
6. The Plaintiff has filed an answering affidavit and in the said answer has annexed a letter from the iTaukei Land & Fisheries Commission, where it was stated that Head of Clan [Turagani Mataqali] and Head of Tribe [Turagani Yavusa] both positions are still vacant. (An English translation of the said letters were submitted on request by the Plaintiff). The said English Translation of the letter dated 28th July, 2011 addressed to the General manager of the Plaintiff by A. Nakasava on behalf of the Chairman of the iTaukei Land and Fisheries Commission states as follows:-
   

'Re; Head Clan of Lomanikoro and Head Tribe of Naduauku, Colo-i-Suva Naitasiri

We refer to your letter on 14th July 2011 on the issue above and advise that the both positions are still vacant and yet to be confirmed by the Ministry of iTaukei Lands & Fisheries Commission.'

7. In the affidavit in reply file by the Plaintiff at paragraph 6 it states as follows:-
   

'6. The Plaintiff states that the deponent is falsely claiming to be the Turgani Yavusa Danuku Turagani Mataqali (tribe and clan chief) as the Plaintiff had written to the Native Lands and Fisheries Commission (NLC) seeking clarifications on the same. Find attached herein is a true copy of the said letter marked as Annexure A."

8. The Plaintiff did not submit any written submissions but the Defendant submitted a written submission and his submission contained reference to the Australian Conference Association Ltd V Sela [2007] FJHC 62 and relies on that judgment.
   

100. LAW AND ANALYSIS
     

9. Order 113 of the High Court Rules of 1988 state as follows:-
   

'1. Where a person claims possession of land which he or she alleges is occupied solely by a person or persons (not being a tenant or tents holding over after the termination of the tenancy) who entered into or remained in occupation without his or her licence or consent or that of any predecessor in title or his or her, the proceedings may be brought by originating summons in accordance with the provisions of this Order.'

(emphasis is added)

Legislative History of Order 113

10. In Dutton v Manchester Airport [1999] All England Law Reports 675 at 679 the legislative history is summarized as follows.
    

'Order 113 was introduced in 1970 (by Rules of the Supreme Court (Amendment No 2) 1970, SI 1970/44), shortly after the decision for this court in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right- that is to say, against trespassers. The order does not extend or restrict the jurisdiction of the court.'

4. LOCUS STANDI
   

11. The Plaintiff is the Native Land Trust Board, a legal personality that is created by a statute. It has to fulfill that the requirements in Order 113, as a person who can bring an action in terms of Order 113 of the High Court Rules of 1988. What they have to establish is they can be included in the phrase'Where a person claims possession of land' in the interpretation of Order 113.
    
12. Section 4 of Native Lands Trust Act, which is under the Heading of Control of Native Land, in Part II of the Act, states as follows
    

PART II - CONTROL OF NATIVE LAND

Control of native land vested in Board

4.-(1) Thecontrol of all native land shall be vested in the Board and all such land shall beadministered by the Board for the benefit of the Fijian owners.' (emphasis is mine)

13. In Dutton v Manchester Airport[1999] All England Law Reports 675 at 679 at (paragraph e) quoted a passage of University of Essex v Djemal [1980] 2 All ER 742 at 744, [1980] 1 WLR 1301 at 1304 (Buckley LJ's decision)

'I think the order is in fact an order which deals with procedural matters in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorized adverse possession.'(emphasis is added)

14. In the said judgment quoted a passage in University of Essex v Djemal [1980] 2 All ER 742 at 744, [1980] 1 WLR 1301 at 1304 indicated that the Order 113 was directed to protecting the rights of the owner of the property, but in Dutton v Manchester Airport [1999] All England Law Reports 675 this was expanded even to include licensee of the owner. The said judgment of Chadwick LJ at page 683 (at paragraphs d and e) stated as follows:-
    

'Faced with what may be stigmatized as traditional view, Mr. King QC, on recovery of the airport company, sought to persuade us that the law as to the recovery of possession was in a state of change or development . He submitted that it was no longer necessary to establish a right to exclusive possession in order to maintain an action for ejectment. There was now a concept of 'relative possession'. He referred to the view expressed by the editors for Clerk and Lindsell on Torts (17thedn, 1995), when commenting upon the passage in the judgment of Blackburn J in Allan v Overseers of Liverpool (1874) LR 9 QB 180 at 191 which I have set out. They observe (para 17-18, p 848):

"The typical Victorian lodger described above by Blackburn J .as having non-exclusive possession has to be distinguished from the typical modern occupational licensee, for "in recent years it has been established that a person who has no more than license may yet have possession of the land," and terms of the license may confer a sufficient right of possession.'

The quotation is from the judgment of Megarry J in Houslow London Borough v Twickenham Garden Development Ltd [1970] 3 All ER 326 at 346, [1971] Ch 233 at 257, to which I shall return. But it is important to set the passage which I have just cited in context. The question addressed in that passage is not the question in this case. The Question there addressed is whether a licensee who is in actual occupation may have the protection of the law for trespass again intruders; not whether he can rely on his title to evict a trespasser who is already on the property. This appears from the first two sentences of paragraph 17-18:......."

15. So, it was clear that even as late as in 1990 in England, the issue of application of Order 113 by a Plaintiff who was not in possession and who was not the owner of the property was not fully decided and a distinction was made regarding whether a licensee who is in actual occupation may have the protection of the law for trespass again intruders and whether he (licensee) can rely on his title to evict a trespasser who is already on the property. This was finally decided in Dutton v Manchester Airport [1999] All England Law Reports 675 unanimously and in the said judgment of Chadwick LJ stated at the end at page 686 (at paragraph d)
    

".... She did not make a distinction, essential in case of this nature, between a plaintiff who is in possession and who seeks protection form those who seek to interfere with that possession; and a plaintiff who has not gone into possession but who seeks to evict those who are already on the land. In the later case (which is this case) the plaintiff must succeed by the strength of his title; not on the weakness (or lack) of any title in the defendant."

16. In this action the Plaintiff being a statutory body derived its authority from Native Land Trust Act. The Section 4 is wide enough to grant power to institute an action in terms of Order 113 as the Seciton4 of the Native Land Trust Act the Plaintiff is entrusted with the control of all native land and all such land shall be vested with them, meaning all native lands by virtue of the statutory provision is vested with the Plaintiff, clearly indicating that it falls within the preview of the Order 113 of High Court Rules. This is further reinforced as the Section 4 of Native Land Trust Act specifically indicating that such land should be administered by the Plaintiff for the benefit of Fijian owners. So the vesting of the property with the Plaintiff is for the benefit of the Fijian owners and their benefit is paramount consideration, as opposed to individual interests as in this case before me. It is clear that Plaintiff has to act in the best interest of the Fijian owners of the land that was vested with them by a statute and needs to protect the land from outsiders.
    

5. EVIDENCE OF THE PARTIES
   

17. The Defendant admittedly, stayed in the property with the leave and license of the previous lessee, Ian Chute, whose lease terminated in 2002 and said Ian Chute has also left the land. It is clear that Defendant has not got any permission to stay in the property from the Plaintiff. The Defendant's position that she has applied for residential permit to remain in the property cannot derive any right to the property as she was unable to obtain it even as late as nine years after the expiration of the lease to said Ian Chute in 2002 and her lease had been transferred to said Ian Chute in 1995.
    
18. The Defendant has tried to file a counter claim against the Plaintiff in this proceedings in terms of Order 28 rule 8 and it is clear that if there is any claim that cannot delay these proceedings which the Plaintiff is under statutorily obliged to institute for the benefit of the Fijian owners of the land for better administration of such land in terms of Section 4 of the Native Lands Trust Act.
    
19. The affidavit of alleged 'chief of clan' filed by the Defendant cannot be accepted as the said position is vacant according to the letter that was submitted by the authority that entrusted with such affairs namely iTaukei Land and Fisheries Commission. Submission of false affidavit to court is clearly an criminal offence and Defendant, the person who sworn that false affidavit and the person who submitted that to court, should be dealt according to law on perjury, but this again shows the behavior of the Defendant in this application and untrustworthiness of the affidavits submitted to court on Defendant's behalf.
    
20. The Defendant has relied on the case of Australian Conference Association Ltd V Sela [2007] FJHC 62, the facts on that case can be easily distinguished from the present case before me on following grounds
    
    1. The said case does not deal with native land that come within the purview of the statutory body created by Native Land Trust Act. The Plaintiffs in that case had a registered title indicating clearly that it was not a native land at that time.
       
    2. The said case was relating to occupation of a community of people namely Solomon Islanders, who were located in a particular area as opposed to an individual in this case.
       
    100. The Plaintiff in that case was not NLTB, but an association who bought that land, indicating clearly that the land was freehold land.
         
    4. There was clear evidence of generations living on the said area of land as opposed to Defendant's occupation which started only in 1985 by a lease to her late husband.
       
    5. The Defendants in that case lived on the land thinking that they would be there for perpetuity, as against a lease which has a clear time period as in this case.
       
    6. There was evidence of long term occupation for well over one generation and development of the area including shops and a church with electricity in order to stay in the community to perpetuity.
       
    7. Evidence of traditional request to stay in the said property by the Solomon Islanders were undisputed.
       
21. The ratio in the said case cannot be applied to the present case where the Defendant has even submitted false affidavits to establish traditional request to occupy the land.
    
22. In Dutton v Manchester Airport [1999] All England Law Reports 675 Laws LJ in his separate judgment at page 688 held
    

'I would hold that the court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the license.

Also at page 690 (paragraph b)

'....the effect of the wording of Order 113, and the understandable object of the law has always been to grant relief to a plaintiff seeking possession who can rely on a superior title. In Danford v McAuulty (1883) 8 App Cas 456 at 462 Lord Blackburn said:

'...in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against any one, and those who sought to turn the man in possession out must show a superior legal title to his'. (My emphasis.)

23. It is clear that Plaintiff should succeed this application and no counter claim can be maintained in this action to delay this proceedings. The Defendant do not have a claim against the Plaintiff as any occupation was subject to a lease to her husband and after the demise of the husband the lease was finally transferred to one Ian Chute, who according to the Defendant has let her remain in the house on the property. There cannot be a claim against the Plaintiff under the circumstances that are admitted by the Defendant.
    

6. CONCLUSION
   

24. The Plaintiff's originating summons filed on 1st February, 2011 to recover possession from the Defendant should be granted order in terms of the said summons and the counterclaim by the Defendant should be struck out, under the circumstances I will not award any cost to the Plaintiff.
    

7. THE FINAL ORDERS
   

1. The Plaintiff's application for possession in terms of the originating summons is granted.
2. The Defendant's application for counter claim is struck off

100. No Cost.
     

Dated at Suva this 6th day of October, 2011.

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