Wati v Devi [2014] FJHC 238; HBC158.2013 (10 April 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No.HBC 158 of 2013

BETWEEN:

BHAGYA WATI of Vunisamaloa, in the District of Ba, in the Republic of Fiji presently residing at Eagle, New South Wales, Australia, Domestic Duties.
Plaintiff

AND:

KOKILA DEVI of Vunisamaloa, in the District of Ba, in the Republic of Fiji, Domestic Duties.
Defendant

Appearances:
Mr N. R. Padarath for the Plaintiff
Mr V Sharma for the Defendant

Date of Hearing : 28/01/14
Date of Ruling : 10/04/14

RULING

Introduction

[1] This is an application by Plaintiff, Bhagya Wati by way of originating summons filed on 6 September 2013 seeking that the defendant to show cause why she should not give up vacant possession to the Plaintiff of the premises situated on the land contained in Crown Lease No. 7451, Land Known as lot 2 on Plan BA 2338 and Lot 8 on Plan BA 2339 part of Vunisamaloa, Rarawai and Vunivesi formerly C.T 7822 and CT x1/05/19 (farm 1568) in the Tikina of Ba, in the province of Ba containing an area of 12 acres, 2 roods and 18 perches ("the property"). The application is supported by an affidavit of the Plaintiff sworn on 23 August 2013. The supporting affidavit annexes documents marked "BW1" & "BW2". The application is made pursuant to section 169 of the Land Transfer Act, Cap 131 ("LTA").

[2] The defendant, Kokila Devi on 11 November 2013 filed an affidavit in response together with documents marked "KD 1"- "KD9".

Case for the plaintiff
[3] The plaintiff's case may, as gleamed from her affidavit in support, be briefly stated as follows: - she is a resident in Australia. She is the registered proprietor of the property, which is a crown land ("BW1"). She became the proprietor in 1994. The defendant, she says, is currently occupying a part of the property without her authority or consent and she never invited the defendant to occupy the property. She also states that no sublease has been created over the property to give legal title to the defendant, nor does have the requisite consent from the Lands Department. She further says, on 27 June 2013 she through her solicitors, Samuel K Ram served a notice to vacate dated 26 June 2013 ("BW2"), but she (the defendant) has failed, refused and/or neglected to vacate despite diverse request.

Case for the defendant
[4] In her affidavit in response the defendant asserted that, in November 1998 she paid Saras Chand, plaintiff's brother a sum of $5,000.00 for the land (as per receipts "KD2" & "KD2A"). In 2001 an agreement was entered and signed by her and Saras Chand for the sale of the land. Initially, the plaintiff did not sign her portion. However, she signed in February 2002 and got the agreement registered with the Stamp Duties Office ("KD3). Later, she says, the property was sold for $10,000.00 [to her] and a copy was lodged for consent of the Director of Lands ("KD1"). According to her she is living on the said land for last 14 years since 1998 with her family. Further she says, the plaintiff wrote to surveyor on 29 February 2008 named Baloma& Associates giving authority for the survey to be done by the defendant ("KD6").

Arguments
[5] At hearing, counsel for the plaintiff orally argued that plaintiff's brother, Saras Chand had no title, the alleged agreement between all three parties had no consent of the Director of Lands (he cited sec 13, Crown Lands Act) and consideration has not been passed between the plaintiff and the defendant. He cited case authority of Reddy v Kumar [2012] FJCA38; ABU0011.11 (8 June 2012) & Prasad v Chand [2001] FJHC 289; [2001] 1 FLR 164 (30 April 2001).

[6] On the other hand, counsel for the defendant contented, that the defendant has applied for the consent, first consent was refused, there are three sale and purchase agreements, consent is pending and the court must refuse the application as the defendant has the right to possession by virtue of the agreement.

[7] In response, the counsel for the plaintiff argued that the court cannot wait for the agreement to be legalized, the court cannot wait for the consent and the defendant attempted to tender a letter written seeking for consent in April 2002.

Law on eviction proceedings
[8] Sections 169-172 of the LTA are the applicable to this application. These sections provide, so far as material, as follows:

Ejectors

169. (so far as material) 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) ...;

(c) ... (Emphasis added).

Particulars to be stated in summons

170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

Order for possession

171. On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in Ejectment.

Dismissal of Summons

172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgage or lessor or he may make any order and impose any terms he may think fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

Analysis

[9] As the last registered proprietor of the property, the plaintiff initiated these summary eviction proceedings under section 169 (a) of the LTA. He is entitled to summon a person in possession of the property (the defendant) to appear before a judge and show cause as to why he should not give possession of the property to the applicant (the Plaintiff).

[10] Pursuant to section 170 of the LTA the summons must contain a description of the land and must require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons. The originating summons filed by the plaintiff sufficiently describes the land in question and also require the defendant to appear in court and show cause why she should not give up possession of the land to the plaintiff. The summons was served on 12 September 2013 on the defendant returnable on 23 October 2013, more than 16 days after service. All the requirements contemplated under section 170 of the LTA had been complied with.

[11] Pursuant to section 172 of the LTA, the court may dismiss the summons if the defendant may show why she refuses to give possession of the property and if she proves to the satisfaction of the court that she has a right to possession of the land.

[12] It would be my duty to ascertain on the affidavit evidence given to court whether the defendant has a right to possession of the property.

[13] It is common ground that the property in question is a Crown land and the plaintiff is the last registered proprietor of the land as evidenced by Crown Lease No. 7451 (BW1).

[14] The plaintiff says that the defendant is occupying a part of the property without her consent or colour of right. She through her solicitors served on the defendant a quit notice dated 26 June 2013 (BW2), but the defendant refused to vacate. Therefore the plaintiff says the defendant has trespassed onto her land.

[15] According to the defendant, she is living on the property for last 14 years with extended family; In November 1998 she paid Saras Chand, plaintiff's brother the sum of $5,000.00 for the land, in 2001 an agreement was signed by Saras Chand and herself for the sale of the property, the plaintiff did not sign her portion, however later in February 2002 she signed and in February 2002 the property was sold for $10,000.00 (KD1-KD4).

[16] The defendant states in her affidavit in response that the plaintiff had failed to obtain the Director of Lands consent to proceed for this legal action pursuant to the lease agreement and State Lands Regulations, Cap 132.

[17] At this point I must address to the issue whether the plaintiff can maintain this action without the consent of the Director of Lands. In term of BW-1- Crown Lease it is expressly declare that this lease is a Protected Lease under the provisions of Crown Lands Act. A Protected Lease has certain safeguards under that Act. Especially, section 13 of that Act, so far as material provides:

"... nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law..." (Emphasis added).

[18] Pursuant to section 171 of the LTA, the judge may order immediate possession to be given to the plaintiff upon proof of the title by the proprietor or lessor and, if any consent is necessary, the production and proof of such consent.

[19] One might think upon plain reading of these sections that the applicant under section 169 of the LTA should first obtain the Director's written consent prior to the institution of the proceedings in relation to Protected Lease.

[20] His Lordship Justice Gates (as then he was) in Prasad v Chand (supra) held that:

"Director of Lands' consent is not necessary to institute proceedings for ejectment under Land Transfer Act section 169 of a mere occupier without lease as the lease is not a dealing with land, and occupier has no title." (Emphasis added).

[21] In the present case the defendant is a mere occupier without a lease and she has no title hence the Director of Lands consent is not necessary for the plaintiff to take proceedings under section 169 of the LTA. The plaintiff therefore can maintain these proceedings without the consent of the Director of Lands.

[22] I now turn to the question of right to possession. It is her duty under section 172 of the LTA to show cause why she refuses to give possession of the property and to prove to the satisfaction of the court that she has a right to the possession of the property in question. The plaintiff's application would be dismissed with the cost against her if the defendant proved to the satisfaction of the court that she has a right to the possession of the land. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is to some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced, see Morris Hedstrom Limited v. Liaquat Ali (Action No.153/87SC at p2.

[23] The defendant filed affidavit in response stating that, the plaintiff had failed to meet her obligation as per the signed document and that she paid the plaintiff's brother (Saras Chand) monies in the sum of $5,000.00 and In 2001 an agreement was entered and signed by Saras Chand and her (the defendant). The defendant in the circumstances contended that the plaintiff was not entitled, under section 169 of the Land Transfer Act, to a summary order for possession of the property.

[24] The plaintiff took these proceedings for the recovery of possession as the person entitled to possession (as last registered proprietor). The plaintiff became the registered lessee in 1994 as evidenced by Crown Lease No.7451 ("BW-1"). The defendant says that she had an agreement with the plaintiff's brother and paid him the sum of $5,000.00. It is to be noted no consideration has been passed to the plaintiff. In any event the purported agreement which is intended to deal with the protected lease would be unlawful by operation of section 13 of the Crown Lands Act, Cap 132. It shall not be lawful for the lessee to alienate or deal with the land comprised in the lease or part thereof in any manner whatsoever without the written consent of the Director of Lands first had and obtained. Any transaction without such consent shall be null and void [see section 13 of the Crown Lands Act].

[25] The defendant states that, she and her family have been in occupation in the property for 14 years, she entered into a sale and purchase agreement with the plaintiff on 8 February 2002 ("KD-1") which was registered with the Stamp Duty Office on 18 February 2002 and waiting for approval and consent of the Director of Lands.

[26] Obviously, the purported agreement would be illegal because it has been executed without the consent of the Director of Lands as required under section 13 of the Crown Lands Acts. But I am paused to ponder whether the plaintiff is now entitled to rely on and claim benefits from that illegality. I am of the view that as the parties were in pari delicto at the time of making the agreement, the plaintiff cannot now be permitted to rely on the illegality of the agreement. The plaintiff resides in New South Wales, Australia. She signed the agreement from Australia in 2002. She took the proceedings to recover possession some 12 years after signing the agreement. In the circumstances, I am satisfied that the defendant has shown an arguable case for a right to possession of the property as stated in Morris Hedstrom Limited v. Liaquat Ali (supra).

[27] For all these reasons, I dismiss the summary application for possession of the property with summarily assessed costs of $400.00. However, the dismissal of the application will not prejudice the right of the plaintiff to take any other proceedings against the defendant to which she may be otherwise entitled.

Final Orders

1. The plaintiff's application seeking immediate vacant possession of the property by way of summary proceedings made under section 169 of the Land Transfer Act is dismissed and struck out with the summarily assessed costs of $400.00 payable to the defendant by the plaintiff within 21 days of this ruling;
   
2. The plaintiff has liberty to take any other proceedings against the defendant to which she may be otherwise entitled;
   
3. Order accordingly
   

M H Mohamed Ajmeer
Actg Master of the High Court

At Lautoka.
10/04/14

Solicitors:
Messrs Samuel K Ram, Barristers & Solicitors, Ba (for the Plaintiff)
Messrs Neel Shivam Lawyers, Barristers & Solicitors, Ba (for the Defendant)