Rafiq v ITaukei Land Trust Board [2012] FJHC 1133; HBC004.2012 (30 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 004 of 2012

BETWEEN:

MOHAMMED RAFIQ
of Vitogo, Lautoka, Farmer.
Plaintiff

AND :

ITAUKEI LAND TRUST BOARD f
ormerly known as NATIVE LAND TRUST BOARD
a body corporate having its registered office at 431 Victoria Parade, Suva.
Defendants

Before : Master Anare Tuilevuka
Counsel : Plaintiff Inperson
Legal Officer, ITaukei Trust Board for Defendant
Date of Ruling : Wednesday 30 May 2012.

RULING

[1]. The plaintiff's Originating Summons filed on 18 January 2012 seeks the following Orders:

(i) that iTLTB forthwith give vacant possession to the plaintiff and evict the previous tenant from the plaintiff's land which is described as NLTB Lease No. 26578, Lot 2 on ND 5115.
(ii) that all costs incurred by the plaintiff be borne by the defendant.
(iii) such further order and/or other relief as this court deems just and expedient.

[2]. There is an Agricultural lease over the land in question which is registered in favour of the plaintiff. There are also two residential leases carved out of this land which were issued by iTLTB to two persons who are not named as parties in these proceedings.

[3]. What the plaintiff seeks from this court is an Order to direct iTLTB to evict the above two persons.

[4]. Mr. Lutumailagi informs the Court that the issues between the iTLTB, the plaintiff and the two residential lease holders has been pending for some eight years or so. I gather from the affidavit of Kolinio Mudunasoko, an estate officer of iTLTB that the lease issued to the plaintiff wrongly included the portions of land over which a residential lease has been granted to the persons concerned. Mudunasoko opines that the error is rectifiable simply by amending the plaintiff's lease to exclude the land covered under the two residential leases. He says that, for this to be effected, the plaintiff will have to surrender his title. A new title with the correct description will then have to be prepared and issued to the plaintiff.

[5]. It appears to me that the plaintiff has, all these years, resisted the above
suggestion.

[6]. After considering all, I had dismissed the application on 21 May 2012 with no order as to costs. I did so because:

(i) the two persons who hold residential leases and against whom the plaintiff is seeking an eviction order are not named as parties in these proceedings.

(ii) in essence, these proceedings are a challenge to their right over the respective portions of residential land over which they have an interest.

(iii) it would be a breach of the principles of natural justice for this court to direct iTLTB to evict the two persons concerned without giving them a fair opportunity to present their version of the facts and to make submissions on the relevant principles.

[7]. Further to the above, I am of the view that the issues involved are not suitable for summary determination on the material in the affidavits before me.

Mr Tuilevuka

At Lautoka
30 May 2012