Nair v Eroni [2011] FJHC 650; Civil Action 018.2011 (14 October 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

Civil Action No. 018 of 2011

IN THE MATTER of an application under
section 169 of Part XXIV of the Land Transfer Act (Cap 131)
for an Order for immediate vacant possession.

BETWEEN:

AVINASH CHANDRA NAIR
of Qeleloa, Nadi, Businessman as the sole Executor and Trustee of the Estate of Muniamma Nair (deceased)
Plaintiff

AND:

ERONI & MERE
both of Qeleloa, Nadi (occupation not known to the Plaintiff)
Defendants

Before : Master Anare Tuilevuka
Counsel : Mr. D.S. Naidu for the Plaintiff
: N/A for the Defendants

Date of Ruling : 14 October 2011

RULING

[1]. The plaintiff is the executor and trustee of the estate of the late Muniamma Nair. He applies under section 169 of the Land Transfer Act against the defendant to show cause why they should not give up immediate vacant possession to the plaintiff of that portion of the land in question which they occupy.

[2]. The land in question is Crown Lease No. 6464 being Lot 5 Plan ND 5135 part of Navo (formerly C.T 3435) (Farm No. 2414) having LD Ref: 4/10/1533 situated in the Tikina of Nadi in the Province of Ba having an area of 11 acres 2 roods.

[3]. The plaintiff says that he is the last registered proprietor of the land. A copy of the lease is exhibited to the plaintiff’s affidavit. It shows that Muniamma Nair is still the last registered proprietor. There has been no Transmission By Death memorialized on the title to the plaintiff as executor/trustee of the estate. However, a copy of Probate No. 42446 which was granted on 08 June 2004 to the plaintiff over Muniamma Nair’s estate is exhibited in his affidavit.

[4]. The immediate question is whether or not the plaintiff has locus under section 169 to bring these proceedings?

[5]. I believe that the probate granted to the plaintiff’s is sufficient to give him locus under section 169. In other words, it is not necessary, for the purposes of a section 169 application, for the plaintiff to have formally completed a Transmission By Death in order to be able to institute proceedings under section 169. Such a situation might, in some ways, be analogous to cases where the holder of a power of attorney is instituting a section 169 application on behalf of the donor. Furthermore, I believe that section 2(1) of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) is supportive of this position.

[6]. Having cleared that, the onus shifts to the defendant under section 172 of the Land Transfer Act to show cause as to why vacant possession should not be given. In discharging that burden, the defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169. This does not mean that she has to prove conclusively a right to remain in possession. Rather, it is enough that she shows some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

[7]. In this case, the defendants appeared in court once only during first call on 08 March 2011. They did not appear again thereafter and have not bothered to file an affidavit in opposition. According to the plaintiff, the arrangement which led to the plaintiff’s occupation of the property was not consented to by the Director of Lands under section 13 of the State Lands Act (Cap 132).

[8]. In Chand v Prakash [2011] FJHC 84; HBC169.2010 (21 February 2011), Mr. Justice Callanchini said as follows:

Since the subletting has taken place without the prior written consent of the Director of Lands, the transaction is unlawful. The effect of the provision[1] is to render such a transaction illegal and void from the beginning. It follows that, an application for possession is not a situation where the court can be said to be dealing with the lease or that the lease is being dealt with under the process of any court of law.

This conclusion is consistent with the observations of Gates J (as then was) in Indar Prasad and Bidya Wati –v- Pusup Chand [2001] 1 FLR 164 at page 166. His Lordship noted that in a case where the Director had not consented to the Defendants' occupation of the State land which was, as a result, illegal, the position was that:

"The ejectment of an occupier who holds no lease is therefore not a dealing with a lease. Such occupier has no title. There is no lease to him to be dealt with."

In the same decision (supra) at page 170 His Lordship stated:

"Whatever the nature of the permission granted to the Defendants (by the Plaintiff) to occupy the relevant State land, it was clearly unlawful because it lacked the Director's consent. .... The Director has had no prior opportunity to evaluate the Defendants as suitable tenants of the State, the very purpose for the consent provision."

On the evidence before me it is clear that the Director's written consent has not been obtained for the Defendant to occupy the premises. Such occupation was unlawful and the subletting of no effect. As a result the written consent of the Director to commence the ejectment application was not required.

The Plaintiff was entitled to rely upon the fact that he was the registered proprietor of both leases as the basis for his application under section 169 of the Act. As a result the issues raised by the Defendant concerning the Notice to Quit are of no consequence in the proceedings.

As a result, for the purposes of the application for stay, I am compelled to proceed on the assumption that the appeal, at least on the principal substantive issues is most unlikely to succeed.

Whatever may be the merit of any of the other factors that would usually be considered in an application for stay, I am unable to find that any of those factors either individually or taken together outweigh the consideration that the appeal is unlikely to succeed.

[9]. In Khan v Prasad [1996] FJHC 85; Hbc0480j.96s (23 December 1996), Mr. Justice Pathik expressed the view that where the director of lands consent was not obtained on the defendant's occupation of a crown protected lease, the defendant's occupation was therefore unlawful. As such, the defendant cannot justify remaining in possession.

[10]. After considering all, I grant order in terms of the application and order that the defendants do give up immediate vacant possession of the property described hereinabove paragraph 2 within 28 days. Costs to the plaintiff in the sum of $550-00 only to be paid in 28 days.

..............................
Anare Tuilevuka
Master

At Lautoka
14 October 2011

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^[1] i.e. section 13 of the State Lands Act (Cap 132).