Lal v Vunisuna [2012] FJHC 1014; HBC006.2012 (12 April 2012)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

HBC 006. of 2012

BETWEEN:

JAWAHAR LAL
of Ralalevu, Ba, Retired
Plaintiff
AND:

TOMASI VUNISUNA
of Old 47 Kings Road, Yalalevu, Ba
First Defendant

AND

ILIAVI RAWAITALE
of Old 47 Kings Road, Yalalevu, Ba
Second Defendant

Before: Master Anare Tuilevuka
Appearances : Mr Chaudhary of Chaudhary & Associates Solicitors for the Plaintiff.
Defendants in Person
Date of Ruling : 12 April 2012

RULING

[1] Before me is the plaintiff's application filed pursuant to Section 169 of the Land Transfer Act (Cap 131) against the defendants to show cause why they should not give up immediate vacant possession to the plaintiff of that portion of the property in question which they occupy.

[2] The property in question is Certificate of Title No.: 26705 known as Naqua. The land is 1008 square meters in size. Erected on it is a house.

[3] The plaintiff owns the house. This is established by a copy of the relevant Certificate of Title which is exhibited to his affidavit, thus confirming his locus to institute these proceedings under Section 169.

[4] Having established that, the onus shifts to the Defendant under Section 172 to show cause as to why vacant possession should not be given. To satisfactorily discharge this 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.

[5] This does not mean that they have to prove conclusively a right to remain in possession. Rather, it is enough that they show some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Ltd v Liaquat Ali (Action No. 153/87) at p.2).

[6] Although the defendants in this case have not filed any affidavit in opposition, I did allow them to give viva voce evidence under oath in Court on the day of the hearing - following which they were each cross-examined by Mr. Chaudhary.

[7] What I gather from the evidence is that the defendants are both tenants of the plaintiff on the said land but have not paid any rent since January 2011.

[8] After considering all, I find that the defendants have not shown cause under Section 172 and accordingly, hereby grant order in terms of the application. This order is suspended for four weeks from the date of this Ruling to allow the defendants to find alternative accommodation. I also order that the defendants each pay $250.00 costs to the plaintiff.

.............................

Anare Tuilevuka

Master

At Lautoka

12 April 2012.