Prasad v Pratap [2012] FJHC 11; Civil Action 39.2010 (20 January 2012)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

IN THE MATTER
of an application under Section 169 of the Land Transfer Act Cap. 131 for an Order for Vacant Possession.

CIVIL ACTION NO: 39 of 2010

BETWEEN:

DURGA PRASAD of Bulileka, retired
PLAINTIFF

AND:

BHANU PRATAP of Boca Bulileka, Labasa.
DEFENDANT

BEFORE : MASTER ROBINSON

COUNSELS: Mr. A. Sen of MAQBOOL & Company for the Plaintiff.
Mr. S Prasad of SARJU PRASAD ESQ. for the Defendant.

RULING

THE APPLICATION

By Summons dated 27 October 2010 the Plaintiff applied to the Court for an Order for vacant possession against the Defendant pursuant to Section 169 of the Land Transfer Act. Cap. 131.

The defendant is summoned to appear before the Master in Chambers at the High Court in Labasa to show cause why he should not give up vacant possession of the Plaintiff's property referred to as Allotment 17 in Crown Lease No: 512285 being Lot 3 Section 6 Bulileka settlement file Ref. No: 4/9/5054.

The Summons did not specify which limb of s 169 the Plaintiff was relying on but he is clearly within paragraphs (a) where the Plaintiff was and is the registered proprietor of the said Crown Lease. The Summons was supported by an affidavit of the Plaintiff sworn on the 27 October 2010.

THE AFFIDAVIT IN SUPPORT

The Plaintiff's affidavit in support was brief and stated that:-

1. That he is the registered proprietor of the Crown Lease No: 512285;

2. That the Defendant is occupying a house constructed on the said land;
   
3. That the Defendant was given notice to vacate and that he did not vacate the land;
   

4. That the Defendant has no right to remain on the land; and

5. That he seeks an order for vacant possession from the Court.

The Summons for vacant possession and its supporting affidavit were served on the Defendant on the 1st November 2010, and complies with the provision of section 170 of the Land Transfer Act in that it was served not earlier than sixteen (16) clear days before the summons was to be heard.

THE AFFIDAVIT IN OPPOSITION

In opposition to the summons to vacate the defendant filed an affidavit deposed by the Defendant Bhanu Pratap sworn on the 4 January 2011 in which he states, inter alia that he has cause to remain on the land in that:-

1. He was requested to go and live and cultivate the land by the Plaintiff;

2. In the presence of his parents the Plaintiff said that he wanted me and my family to move onto his said lease, cultivate the same on a fifty /fifty basis so that the land rent is paid from the cane proceeds and I get income for myself as well;

3. The reasons why the Plaintiff wanted him to live and cultivate the land was that the Plaintiff did not want to live in Labasa but wanted to move to Suva permanently. On that basis the Defendant moved on to the land in June 1997 and deployed his own labourers to plant, cultivate and harvest the cane and that the land rental was paid directly from the cane proceeds.

4. That later he used his own money to upgrade the house which was in a state of disrepair. That he stayed on the said land and cultivated it while the Plaintiff remained in Suva and he was surprised to receive a notice to vacate the land in February last year. That he has now applied to the Agricultural Landlord & Tenant Tribunal for a declaration of tenancy.

5. This action involves intricate issues of facts and law and will entail full hearing which cannot be appropriately addressed under the summary procedure of S. 169 of the Land Transfer Act.

The Plaintiff in response to the affidavit in opposition states in his affidavit denies that such an arrangement was made with the Defendant and that the Defendant is occupying his house without any colour of right and is a trespasser on the land.

DETERMINATION of the APPLICATION

This application falls within section 169 sub-paragraphs (a) and (c) of the Land Transfer Act. This provisions states:-

169. 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.

The affidavit in support of the Summons was sworn by the Plaintiff on the 27 October 2010. He deposes that he is the last registered proprietor of the land described in the Summons and he exhibits to his affidavit a photocopy of Crown Lease No. 512285 whppear to have have been originally issued on the 19 July 2002 and is to run for a period of 30 years commencing on the 1st August 2001. The lease is "Agricultural" is situated at Bulilekacontan area of 2.0239 0239 ha. Aha. As stated by the Plaintiff in his affidavit the land was purchased by him from his father in 1980.

Applications under section 169 are summary in nature and can be determined by affidavit evidence only. The provision is intended to operate without the need for a trial involving the oral examination of witnesses and with a minimum of delay, expense and technicality. Hence it would normally apply in virtually uncontested cases or in clear cases where there is no issue or questions to try. That is, there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to the wrongful occupation of the land without licence or consent and without any right or interest.

For the above reason the defendant has to show cause as to why he should not give up vacant possession (section 172) and in this regard the Defendant must show on affidavit evidence why the Court should not make an order for vacant possession. He does not have to prove a conclusive right to remain in possession only 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)

The phrase tangible evidence has often been used as a general criteria establishing a right or cause why the Court should not make an order for vacant possession under section 169. For the evidence to be tangible it must be real and capable to be established, not a vague or an elusive perception of a right of possession.

The matters raised by the Defendant in affidavit evidence are tangible and can be established by adduced facts. It is presumed that as a result of the arrangement made by the parties and the present development, that the Defendant thought it necessary to apply under the ALTA Act for a declaration of tenancy. The question then is whether the above application is good cause sufficient for the Court not to make an order for vacant possession under section 169.

In Reddy -v-Krishna (2009) FJHC 221; Soma Raju-v- Bhajan Lal (1976) 22 FLR 163 and Azmat Ali-v- Mohhamad Jalil & NLTB (1986) FCA 111/85 the Courts affirm the view that the provisions of ALTA override the provisions of the Land Transfer Act. The conclusion drawn was that the High Court lacks jurisdiction to entertain a section 169 application to evict a tenant who was occupying a piece of ALTA land.

But what is the position of someone who is applying for a declaration of tenancy under the ALTA Act? Part of the answer could be found in the Court of Appeal decision in the Azmat Ali case where the judge said at page 12;

"A person seeking a declaration of tenancy under ALTA, however, has no contract and, therefore, no right (to sublet) so arising. His right to a tenancy is created not by any agreement but, under section 4 of ALTA, by Parliament itself, the ultimate repository of all power. The tribunal is merely the machinery to give effect to that right. Section 23(3) requires that it shall declare a tenancy and direct that a contract of tenancy be entered into, but only where it considers it just and reasonable so to do...

When after a hearing the tribunal, the ultimate judge of reasonableness, does make a declaration, the Parliament, in our view, must be taken to have intended that such a declaration of a statutory right be binding upon everyone including the Crown, NLTB or any other holder of title."

By implication once an application is made for a declaration under the ALTA Act is made the provisions of that act applies. Therefore any application that has to be determined under the Land Transfer Act is now subject to and affected by the ALTA Act. This means that the application for a declaration acts as a stay in any proceedings for vacant possession. It makes good sense then that if the application for tenancy is refused and all legal avenues exhausted by the Defendant that he should vacate the premises his right of possession having arisen from the application for a declaration of tenancy only.

CONCLUSION

The end result is that the summons for vacant possession is stayed pending the application for a declaration of tenancy under the ALTA Act. The Plaintiff is granted liberty to activate this summons if the application for tenancy is denied by the tribunal. As a consequence of the above with the parties still in dispute in the ALTA tribunal I make no orders as to cost.

ORDERS

The Orders are therefore as follows:-

1. The application for vacant possession is stayed pending the decision of the ALTA Tribunal;

2. The Plaintiff is granted liberty to activate this application on the application for declaration of tenancy being refused;

3. No order as to costs.

H A ROBINSON
MASTER,
20 January 2012.
LABASA