Moto v Nakauta [2013] FJHC 30; HBC262.2012 (11 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 262 of 2012.

BETWEEN:

MALELI MOTO
of Viria Industrial Settlement, Vatuwaqa, Suva.
PLAINTIFF

AND:

VEREIMI NAKAUTA
of Lot 103, Sa Place, Nakasi, Security Officer.
1ST DEFENDANT

AND:

VILIAME DAURUA

of Lot 103, Sa Place, Nakasi, Occupation unknown to the Plaintiff.
2ND DEFENDANT

AND:

ASIVELI MOCE
of Lot 103 Sa Place, Nakasi, Occupation unknown to the Plaintiff.
3RD DEFENDANT

BEFORE : Justice Deepthi Amaratunga
COUNSEL : Mr. V. Vosarogo for the Plaintiff
Ms. V. M. Daveta for the Defendant

Date of Hearing : 4th February, 2013
Date of Judgment : 11th February, 2013

JUDGMENT

1. INTRODUCTION
   

1. Plaintiff filed this action in terms of Order 113 of High Court Rules of 1988. The Plaintiff was a joint tenant of the property in issue and the other joint tenants died and transmission of death is recorded on the title. Defendant is claiming possession in terms of a 'wish' of the deceased joint tenant, but no evidence of that was produced. The Plaintiff had established rights to the property as the sole owner upon the death of the other joint tenants. The Defendants failed to establish equitable interest in the property.
   

2. ANALYSIS.
   

2. It is an admitted fact that Plaintiff and late Unaisi Wati and late Marika Baleinaloto Moce were owners of the premises in issue. The certificate of title proves that all three were joint tenants and upon the demise of the two of the said joint owners the remaining joint tenant, the Plaintiff, obtained the title for the whole premises.
   
3. The Defendant is one of the siblings of the Plaintiff, and he states that the wish of his deceased sister who was also one of the joint tenants to the property, namely Unaisi Wati, was to bequeath the premises jointly to the Plaintiff and himself, but there is no such evidence apart from his statement. If so why he was also not made a joint tenant cannot be understood. The reason given by the Defendant was that he was employed at that time, but the title indicates Plaintiff's employment as 'domestic duties'. In any event 'wish' of one joint tenant cannot change the legal title to other joint tenant.
   
4. Order 113 of the High Court Rules of 1988 state as follows:-
   

'1. Where a person claims possession of land which he or she alleges is occupied solely by a person or persons (not being a tenant or tents holding over after the termination of the tenancy) who entered into or remained in occupation without his or her licence or consent or that of any predecessor in title or his or her, the proceedings may be brought by originating summons in accordance with the provisions of this Order.' (emphasis is added)

5. In Dutton v Manchester Airport [1999]2 All England Law Reports 675 at 679 it was held
   

'Order 113 was introduced in 1970 (by Rules of the Supreme Court (Amendment No 2) 1970, SI 1970/44), shortly after the decision for this court in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right- that is to say, against trespassers. The order does not extend or restrict the jurisdiction of the court.

6. Further KENNEDY LJ. Dutton v Manchester Airport [1999]2 All England Law Reports 675 at p 690 held
   

'.....................I would accept, the grant does not create an estate in land giving the plaintiff a right to exclusive possession does not seem to me to be critical. What matters, in my judgment, is that the plaintiff has a right to possession which meets the first of the requirements set out by Stephenson LJ, and the defendants have no right which they can pray in aid to justify their continued possession. If it is said that such an approach blurs the distinction between different types of right and different types of remedy it seems to me that is the effect of the wording of Ord 113, and the understandable object of the law has always been to grant relief to a plaintiff seeking possession who can rely on a superior title. In Danford v McAnulty (1883) 8 App Cas 456 at 462 Lord Blackburn said:

'... in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against any one, and those who sought to turn the man in possession out must shew a superior legal title to his.' (My emphasis.)

7. To evict an occupant what is important is not whether the Plaintiff was actually in possession or had any exclusive possession, but Plaintiff should have better title than Defendants.
   
8. The Plaintiff in an earlier action in terms of Section 169 of Land Transfer Act obtained possession against Anare Tuidraki in High Court (Suva) Civil Action No 81 of 2011, who is the son of late Unaisi Wati, who was a joint tenant in the property. So now the Plaintiff sought an order in terms of Order 113 of High Court Rules of 1988, which should apply not only to the Defendants but to all the occupants of the premises.
   
9. KENNEDY LJ. Dutton v Manchester Airport [1999]2 All England Law Reports 675 at p 690 stated
   

'The decision in Re Wykeham Terrace, Brighton, Sussex, ex p Territorial Auxiliary and Volunteer Reserve Association for the South East [1971] Ch 204 demonstrated the weakness of the procedure prior to the existence of Ord 113. On an ex parte application the court was unable to enter judgment or make a final order against unnamed squatters who were not a party to the proceedings. Stamp J observed (at 212):

'No doubt a different, and perhaps a better process ... could be provided to meet particular cases and more particularly a case where unknown persons are in occupation of land claimed by the plaintiff.'

Order 113 was then drafted and came into operation on 20 July 1970. As I have already said it does not in my judgment require of a plaintiff that he demonstrate a right to exclusive possession and therefore, as it seems to me, it need not be confined to giving protection to those who can demonstrate that they possess an estate in land. If it is approached in that way then, as it seems to me, decisions such as Street v Mountford [1985] UKHL 4; [1985] 2 All ER 289, [1985] AC 809, on which Mr. Maile relied, no longer give rise to any difficulty, and the court is able to give a remedy in a situation in which a remedy plainly ought to be provided. (emphasis added)

10. The Supreme Court Practice (White Book) 1999 p 1795 113/8/3 states as follows
    

'In proceedings under this order, the only claim that can be made in the Originating Summons is for the recovery of possession of land; notwithstanding O.15 r. 1 no other cause of action can be joined with such a claim in proceedings under this order, and no other relief or remedy can be claimed in such proceedings, whether for payment of money, such as rent, mesne profits, damages for use and occupation or other claim for damages or for injunction or declaration or otherwise. The Order is narrowly confined to the particular remedy described in r.1.

Where the existence of a serious dispute is apparent to a plaintiff he should not use this procedure (Filmat Ltd v Avery [1989] E.G.92) In Eyles v Wells [1991] CA Transcript 376, the Court of Appeal following Greater London Council v Jenkins, above, held that the Court had no discretion to prevent the procedure being used in cases that fell within the rule O14, r 7 may assist tin considering the appropriate order for costs where the plaintiff was aware of a serious dispute.'(emphasis is added)

11. The Defendant had annexed a receipt of a payment of money allegedly spent for the eviction of the previous occupant, the son of late Unaisi Wati to substantiate the allegation that he had spent money, but this falls short of establishing any equitable right to the premises. No proprietary estoppel established and no serious dispute as to the title of the Plaintiff, to the premises in issue.
    

100. CONCLUSION
     

12. The Defendant admits that the Plaintiff was one of the three owners of the property where other two joint tenants died. The certificate of title indicates that all three were joint tenants and demise of the two would leave Plaintiff as the sole proprietor of the premises. Defendants have not shown a right to remain in the premises. Order for immediate eviction from the premises is granted.
    

4. FINAL ORDERS
   

1. The plaintiff is granted immediate possession in terms of order (i) of the originating summons dated 20th September, 2012.
   
2. The cost of this application is assessed summarily at $500 to be paid by the Defendants jointly and or severally.
   

Dated at Suva this 11th day of February, 2013.

.................................................
Justice Deepthi Amaratunga
High Court, Suva