London Guarantee Corporation Ltd v Tabua [2011] FJHC 79; Civil Action 240.2010 (21 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 240 of 2010

BETWEEN:

LONDON GUARANTEE CORPORATION LTD
Plaintiff

AND:

ISIRELI TABUA
Defendant

Before: Master Deepthi Amaratunga

Counsels: SHERANI & CO for the Plaintiff
Defendant in Person

Date of Hearing: 15th February, 2011
Date of Ruling: 21st February, 2011

RULING

1. INTRODUCTION
   

1. This is an application in terms of the Section 169 of the Land Transfer Act. The Defendant has entered the property as a licensee with the leave and license of the Plaintiff and now refuses to vacate the premises.
   

2. FACTS
   

2. The Defendant has not filed an affidavit in opposition for the application filed 6th August, 2010. The Affidavit of service was filed on 23rd September, 2010.
   
3. Upon the ruling on 10th December, 2010 the Defendant is granted 7 days to file and serve the affidavit in opposition for the application and another 7 days for the Plaintiff to file and serve an affidavit in reply. Defendant has failed to file the affidavit in opposition.
   
4. The Plaintiff has neither appeared on the hearing date nor has he filed an affidavit in opposition.
   

100. LAW AND ANALYSIS
     

5. Section 169 of the Land Transfer Act state as follows:
   

"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 mine)

6. It is further stated in Section 171 of the Land Transfer Act that:

"On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."( emphasis is added)

7. It is clear that the summons was served on the Defendant as far back as 11th August, 2010 and an affidavit of service was filed on 23rd September, 2010. The Defendant was granted 7 days from 10th December, 2010 to file and serve an affidavit in opposition to the summons, but the Defendant has not complied with the directions of the court. The Defendant was present on the court on that day and he appeared in person on 10th December, 2010. He admitted the receipt of the summons to him on 11th August, 2010.
   
8. The Plaintiff has filed the certificates of titles Nos 12684, 12683, and 10178 and upon perusal of the certificated and the evidence before me it is clear the last registered proprietor is the Plaintiff in all three properties described in the titles.
   
9. It is the duty of the Defendant in terms of Section 172 of the Land Transfer Act "If the 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, mortgagee or lessor or he may make any order and impose any terms he may think fit.(emphasis is added)
   
10. The material before me does not establish any right to the Defendant in terms of the Section 172 of the Land Transfer Act. It is clear that the Defendant has entered the property with leave and lisece of the Plaintiff and had remained there at the pleasure of the Plaintiff. The Defendant was served the summons for this application and before that the leave granted to him to remain on the property was withdrawn and a quit notice was sent. The Defendant is in the property illegally and is also hindering the massive development activity that has been undertaken in the said premises. It is clear that the Defendant has failed to satisfy the court any right to remain in the premises in derogation to the rights of the Plaintiff in terms of Section 172 of the Land Transfer Act.
    

4. CONCLUSION
   

11. Plaintiff has proved that it is the last registered proprietor of the lands described in the summons and Defendant has failed to establish any right to remain in the premises and the Plaintiff is granted the possession, of the said ands described in certificates of titles Nos 12684, 12683, and 10178 immediately.
    
12. The Plaintiff is also granted a cost of $ 1,500 assessed summarily and the cost should be paid by the Defendant with in 21 days.
    

Dated at Suva this 21st day of February, 2011

Mr D. Amaratunga
Acting Master of the High Court

Suva