Nisha v Ali [2012] FJHC 862; HBC153, 154 & 155.2011 (10 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 153, 154 & 155 of 2011.

BETWEEN:

MAHRUL NISHA of Serua, a retired person.
PLAINTIFF

AND:

HABIB ALI of Saunaka, Nadi, a retired person.
Defendant
(in 153 of 2011)

ZABREEN ALI of Saunaka, Nadi, domestic duties.
Defendant
(in 154 of 2011)

SANJAY KUMAR of Saunaka, Nadi, domestic duties.
Defendant
(in 155 of 2011)

Before: Master Anare Tuilevuka.
Appearances: Mr. Hari Ram of Rams Law for the Plaintiff.
Defendants In Person.
Date of Ruling: Friday 10 February 2012.

RULING

INTRODUCTION

[1]. This is my ruling on Mairul Nisha's three summonses[1] issued under section 169 of the Land Transfer Act (Cap 132) against each of the defendants. The summonses require all three defendants, Habib Ali, Zabreen Ali and Sanjay Kumar to show cause why they should not hand over vacant possession to Nisha of that portion of Nisha's land that they (each) are occupying. The land in question is Certificate of Title 40094. Its legal description is Waqadra (part of) being Lot 1 on DP 10130. The land has an area of 4009 square meters.

[2]. It is not in dispute that Nisha holds the documentary title to the land in question. A copy of the Certificate of Title No. 40094 is exhibited in all three affidavits that she has filed in support of her three summonses.

SECTION 169

[3]. Section 169 states 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."

[4]. In all the three categories of section 169, the plaintiff must establish his documentary title to the land in question[2]. Once that is established, the defendants must then show cause why vacant possession should not be given[3]. And to discharge that burden, they need only show is some tangible evidence establishing a right of possession or at least supporting an arguable case for such a right (See Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at page 2). They do not have to prove conclusively a right to remain in possession, see also Matawalu v Tamanisau [2011] FJHC 316; HBC220.2010L (2 June 2011) as per inoke J).

HABIB ALI

[5]. Habib Ali is Nisha's younger brother. He is sixty two years of age. He and all his siblings were all born on the land in Saunaka. When he and his siblings came of age, they got married and built their own houses around the original family home on the land. Nisha however, left the land when she got married and went away to settle with her husband in Serua.

[6]. Habib Ali's five sons were all born and raised on the land. They are all now grown up and raising their own families on the land.

[7]. Habib Ali annexes to his affidavit a letter to Nadi Town Council by the plaintiff dated 06 February 1984 which I reproduce in full below:

	C/- Naviti Resort, Korolevu Sigatoka
6th February, 1984. Nadi Town Council, Nadi
Dear Sir, I, MEHRUL NISHA daughter of Usman Ali of Saunaka, Nadi and being the owner of Saunaka Co-operative Land Purchased (sic), I most respectfully authorized my brother HABIB ALI son of Usman to build a dwelling house on the said Land. SIGNATURE: ..................................... DATE 6/2/84

[8]. Nisha explains the above letter by recounting her version of some family history behind the land. The land in question belonged to their grandfather who was a member of the Saunaka Land Purchase Cooperative Society Limited. This is not in dispute. The grandfather sold his interest over the land in question to their uncle, one Sakur Ali (father's brother). According to Nisha, their parents then "remained on the land without any right" whatsoever.

[9]. The Saunaka Land Purchase Cooperative Society Limited only gave its members a license to occupy the land. She says further that she acquired the property in question on 08 September 2010. Habib Ali however had built what she calls "a temporary house" on the land in 1984. When the Nadi Town Council asked for it to be removed, she then, on Habib Ali's pleas, allowed him to reside on the land temporarily till he could relocate. She says that she has since revoked her license to Habib Ali and asked him to vacate several times but he has built a permanent structure thereon. She then states as follows:

That in any event at the time the consent was given it was for and on behalf of the Saunaka Land Purchase Cooperative Society Ltd which was then the owner of the land. Since then I have purchased a newly subdivided land which is the Certificate of Title No. 40094 which is not the same Certificate of Title as before.

[10]. She says at paragraph 7 of her affidavit that the defendant's licence to occupy "was cancelled several years ago". As to when exactly this purported cancellation is deemed to have happened is not clear to me.

ZABREEN ALI

[11]. Zabreen Ali is 54 years old. She has been residing on the land for some 34 years now. Her husband, Nur Ali was born and raised on that land. He is one of Nisha's brothers.

[12]. Zabreen Ali says that she has built a 2-bedroom concrete dwelling house and a wood and iron house adjacent to it and carried out improvements on the land. She further deposes as follows:

9. THAT I have all the rights and interests on the said land because for the past 34 years I have spent my entire marriage life on the said land, born and bred my three beautiful children, married one of my daughters from the said land, and have seen my grandchildren being born and brought up from the said land.

10. THAT all along these 34 years, the plaintiff has been residing in Serua Road, Man Friday, Sigatoka....

[13]. Zabreen Ali highlights in particular that her husband Nur Ali has filed a writ of summons and statement of claim in the High Court at Lautoka (HBC 137 of 2011) against Mahrul Nisha.

[14]. I have had a look at the pleadings in that case. In essence, Nur Ali's case is based on a plea of proprietary estoppel. He alleges that Nisha had promised him a fee simple title to that portion of land that he occupies based on a family arrangement. And in reliance on that promise, he had constructed a dwelling house to the value of $60,000 and given up opportunity to acquire a separate property. He has also paid Mahrul Nisha's share of town rates to the cooperative pursuant to that same family arrangement.

SANJAY KUMAR

[15]. According to Kumar, his father, Yenktesh, bought the piece of land which he occupies from one Mr. Sakur Ali. Kumar describes Sakur Ali in his affidavit as "the brother of Mahrul Nisha".

[16]. It appears to me that the Sakur Ali that Kumar refers to may well be the uncle of Mahrul Nisha (see paragraph 9 above). In her statement of defence in HBC 137 of 2011, Mahrul Nisha pleads as follows in paragraphs 4.1 to 4.5

4.1 That the property now comprised in the Certificate of Title No. 39114 was previously leased by our grandfather from a Mr. Watson. That when our grandfather died our grandmother continued to pay the rental sums to Mr. Watson for a short while however when she was not able to do so then our uncle Mr. Sakur Ali made all the payments to Mr. Watson and eventually acquired the lease from Mr. Watson.

4.2 That the Defendant's father was of advanced age and not well as such he could not afford to pay any rent and remained in occupation of the land at the mercy of the Defendant's uncle Mr. Sakur Ali.

4.3 That the Defendant then made arrangements with Mr. Sakur Ali and leased that portion of the land that was occupied by the Defendants parents.

4.5 That when the Cooperative was formed the Defendant became a member of the Cooperative and purchased shares in the Cooperative.

(underlining mine)

[17]. If the Sakur Ali that entered into the sale and purchase agreement of the land in question is the same one that Mahrul Nisha describes above, then Prasad may well have an arguable case. How he structures his arguable case may rest – in part- on the history of the Saunaka Land Purchase Cooperative Society and its workings.

[18]. A copy of the sale and purchase agreement is exhibited to Prasad's affidavit. I note that the agreement is not stamped. I note too that the agreement was prepared by Pillai, Naidu & Associates of Nadi. Its essential terms are: the purchase price being fixed at $10,000; the stipulation that the purchase price was to be settled by a deposit of $3,000 upon execution; and the balance was to be paid by $50 monthly installments commencing on 30 October 1999; the property is described as Lot 174 part of CT 10896 with an area of 1012 square meters (a little more or less subject to survey). The preamble to the Agreement (which is a one long paragraph containing also a recital) describes Sakur Ali as a member of the "Saunaka Land Purchase Company Limited". According to Kumar, his father has paid off all the balance of the purchase price.

OBSERVATIONS

[19]. Earlier this week, I noted in my ruling in Saunaka Land Purchase Cooperative Society Limited v Afiz Mohammed & Ors HBC 157 of 2010 that the society has, for many years, been plagued with allegations of corruption and impropriety. The allegations led eventually to the purported ousting of the old board and the appointment of a new board in August 2010 – following an investigation by the Registrar of Cooperatives. While the legality or otherwise of these changes was pending in court, an interim injunction was granted by Mr. Justice Fernando in August 2010 to put a stop to any further dealings on the society's land. That injunction, was still in place earlier this week as far as I am aware.

[20]. Curiously, the land in question was transferred to Mahrul Nisha by the society in September 2010. I get the impression that there is a lot more happening at Saunaka then what the affidavits would have me believe.

[21]. After considering all, I am of the view that the defendants all have an arguable case to remain in possession. Whether or not their arguments are enough to justify permanently remaining in possession or even the creation of a registered interest in their favour – is best dealt with in a trial proper.

[22]. I dismiss the application with costs to the defendants at $200-00 (two hundred dollars each). Mahrul Nisha would be best advised to pursue eviction by a writ action.

Anare Tuilevuka
Master

At Lautoka.
10 February 2012.

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^[1] HBC 153/11, HBC 154/11 and HBC 155/11.
^[2] Either as registered proprietor under section 169(a) or as lessor under section 169(b) and (c).
^[3] See section 172 of the Land Transfer Act.