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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 37 OF 2010
BETWEEN:
LAISIASA QERA
of Korowiri, Tovata, Labasa, Farmer
PLAINTIFF
AND:
ABDUL MUNAF
of Korowiri, Tovata, Labasa, Labourer
DEFENDANT
Appearances: Mr. Lomaloma of P. Lomaloma. Esq. for the Plaintiff
Mr. Ram of Gibson & Co. for the Defendant
RULING
Introduction
1. By an application dated the 1st of October 2010 the Plaintiff, as the registered owner of a portion of land situated at Korowiri and known as Naderi containing an area of approximately 11.5222 hectares, summons the Defendant to show cause why he should not be ejected from the said property.
The Application
2. The Summons was returnable on the 20 of October 2010 and was served the Defendant on the 1st of October 2010. The application was supported by an affidavit which states briefly that:-
(i) He is the Plaintiff and the registered owner of all that piece and parcel of land described in NLTB Ref No. 4/9/16942 known as NADERI in the Tikina of Labasa, in the Province of Macuata and having an area of approximately 11.5222 hectares registered as a Deed in Book 2004 Folio 8961 under the Agricultural Landlord and Tenant Act. Attached to the affidavit and marked with the letter "A" is a true copy of the Instrument of Tenancy of the said land.
(ii) The Defendant was a labourer of Mr. Sadiq, the previous tenant on the said lease. When the Plaintiff took over the land in 2003, the Defendant did not leave the land as arranged by Mr. Sadiq and asked that he remain on the land as he had children attending school. The Plaintiff then gave him a portion of the land to farm and support his family. The Plaintiff also gave him a house on the property that was bought from Mr. Sadiq. Annexed with the affidavit and marked with the letter "B" is a copy of a letter from Mr. Sadiq attesting to the Plaintiff's ownership of the said house.
(iii) Out of pity for the Defendant, the Plaintiff allowed the Defendant to use about 1 acre of his holding for him to farm on a subsistence level.
(iv) On 13th February 2006, the Defendant signed a letter evidencing his agreement with the Plaintiff to formalize the arrangement they had made for him to work for 3 days a week during the year on my farm in return for him living there. Attached hereto and marked with the letter "C" is a copy of the said letter.
(v) In or about 2008 the Defendant bought a lease adjacent to mine and started planting vegetable with hired help.
(vi) In breach of our agreement in 2006, the Defendant no longer works for me for 3 days a week as promised or any day at all.
(vii) The Plaintiff then went to my Solicitor who issued a notice to vacate to the Defendant dated 26th August 2010, a copy of which is attached as Annexure "D".
(vii) The Defendant has ignored the said notice and continues to trespass on my said lease.
3. Defendant opposes the application and filed an affidavit in opposition which briefly states that:-
(i) He denies paragraph 2 to 6 of the Plaintiff's affidavit and say:-
These written promises were not disclosed to this court. A copy of the said undertaking is annexed hereto marked "B".
(ii) The Plaintiff is stopped from evicting him given his previous conduct and his oral and written promises in exchange for valuable consideration.
(iii) The notice to quit is also defective and any licence granted has not been effectively terminated.
(iv) Given my occupation and cultivation of the land since 2004 when the Plaintiff took over the farm, He has made an application to the Agricultural Tribunal, a copy of the said application being annexed marked "C" to regularize my occupation and cultivation.
(v) The application is irregular and cannot be sustained or entertained under any property law. Further the summary proceeding is not the appropriate procedure in the circumstances.
(vi) He is not a trespasser, squatter or mere licensee on the said land and have equitable rights which the Plaintiff should acknowledge and admit.
(vii) He has been in occupation and cultivation since 1992 and for the last 6 years with the Plaintiff, and the Plaintiff's actions are aimed at using him for as long as possible and then getting rid of him when he does not respond to the Plaintiff's demands.
4. The Plaintiff replied to the affidavit in opposition and clarified some of the statements by firstly annexing in his affidavit in reply an affidavit from one Parma Nand who was the previous owner Mr. Sadiq's caretaker. Mr. Nand states that:-
(i) That he knows both the Plaintiff and the Defendant;
(ii) That the house currently occupied by the Defendant was built by Mr. Sadiq and that he even helped out on the building of the house and that it had 2 bedrooms, 1 kitchen and toilet and bathroom and that he stayed in that house while he was the caretaker;
(ii) That the Defendant is not telling the truth in that he built that house or it belonged to him.
(v) That he was a caretaker from about 1982 to 1990 when he left.
5. The Plaintiff himself states that he has no knowledge that the Defendant worked for Mr. Sadiq and that the land on which the house is built belongs to the Mataqali, Wasavulu of which he is a member. That he was advised by his solicitor that at the expiration of the lease Mr. Sadiq applied for compensation for the improvements on the property but this was refused as no consent was given prior to the building of the improvements. That the Defendant is telling lies when he says that they entered into an agreement on 5th February 2006 wherein he accepted $3,500:00 to buy a house block on my lease. He further denies that he signed annexure 'A' and 'B' and that these are forgeries purportedly signed by him. That he is not "Laisa Gere" as the signatories on the annexure. He is able to read and write his own name. And further that he at no time met with 'Ela' to subdivide the land as claimed by the Defendant. And lastly that the reference filed by the Defendant in the Agricultural Tribunal is frivolous and vexatious and a ploy to delay this application.
6. Before the matter was heard the Court was informed on the 2nd February 2011 that the Defendant had made an application under the Agricultural Land and Tribunal Act for a declaration of tenancy. The matter, on the application of the Counsel for the Plaintiff was stayed pending the tribunal's decision. On the 9th December the Court was informed that the agricultural tribunal had struck the matter out and that no written decision was given yet. When the matter was later called on the 7 February 2012 the Court was again informed that the Defendant had appealed the Tribunal's decision and Counsel then sought leave to file a supplementary affidavit. The Plaintiff did not object provided he had a right of reply, leave was then granted and the Defendant given 14 days to file the supplementary affidavit and the Plaintiff seven days thereafter to reply.
7. The supplementary affidavit refers mostly to the application to the Agricultural Tribunal and that the Defendant has lodged an appeal against the decision and as such any proceedings for eviction should be stayed. Further the Defendant deposes that there are matters in dispute which ought to be determined in a full hearing and a summary proceedings is not suitable.
8. The appeal to the Agricultural Tribunal was dismissed in late October 2013 and the matter was eventually adjourned before me for hearing on the 28 November 2013. At the conclusion of the hearing both parties were given 14 days to file their submissions and both submissions were filed in time and I am great full for the Counsel's co-operation in this regard.
The Hearing
9. At the date of hearing Counsel for the Defendant sought leave to file further supplementary affidavit, this application was denied.
The Plaintiff relies on his written submission and addressed the Court directly from it. The pertinent points of which are:-
(i) This is an application under Section 169 of the Lands Transfer Act for eviction of the Defendant from the Plaintiff's agricultural land described in Instrument of Tenancy No. 8691/2004, NLTB Ref 4/9/16492 known as NADERI in the Tikina of Labasa, Province of Macuata, containing an area of 11.5222 hectares.
(ii) Section 169 of the Land Transfer Act provides:
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;
(iii) The Plaintiff's land, is a lease under the provisions of the Agricultural Landlord and Tenant Act and is registered as required by section 8 (3)(b) of that Act as a Deed:-
8 (3) Every instrument of tenancy shall be signed by the parties
(a) ......
(b) if not registrable under the provisions of the Land Transfer Act, shall, together with all dealing relating thereto, be registered as deeds under the provisions of the Registration Act.
10. In Habid v Prasad [2012] FJHC 22; HBC24.2010 (17 January 2012) the Labasa High Court dealt with an application to evict the defendant from an agricultural holding registered under the provisions of ALTA and said that for the purposes of a Section 169 (a) application for eviction, such registration is sufficient:-
The word registered is making reference to registration of land and not the nature of land. If the land is registered either in Registrar of Titles Office or in the Deeds Office, it is still registered land. This land has been registered on 4th March, 2004 and is registered at the Registrar of Deeds office, it is still registered land. The registration is sufficient to meet the definition of registered in the Interpretation Act Cap. 7:-
"Registered" used with reference to a document or the title to any immoveable property means registered under the provision of any written law for the time being applicable to the registration of such document or title".
11. The Defendant has not shown any right to possession to the land. He had applied for a tenancy under the Agricultural and Tenant Act but that was dismissed on the grounds that ALTA did not apply to the land because the area he was occupying and cultivating was below 1 hectare. The Central Agricultural Tribunal dismissed his appeal on the same grounds.
12. The Defendant avers in his affidavit in opposition that he built the house which he is occupying on the subject land. However, the Affidavit of Parma Nand sworn on 8th December 2012 states that he had been an employee of Mr. Sadiq, Barrister & Solicitor, and the predecessor in title to the land in question from 1982. Mr. Parma Nand says that the house currently occupied by the Defendant was built by Mr. Sadiq. At the time he was working for Mr. Sadiq and that he actually helped build the house and also lived in it.
13. That the house on which the Defendant lives under law becomes part of the land and now belongs to the Plaintiff and even if he built the house (which is disputed) doing so does not give him the right to remain on the land. The only right which he may have is a right to compensation but that could not be given as he did not get consent to build on the land. In Charmers v Pardoe [1963]1 WLR 677, the Privy Council held that Proprietary stopped cannot be pleaded when it is clearly against the law requiring the consent of the NLTB. In Nand v Kumar [2013] FJHC 266; HBC271.2012 (1 March 2013) the Defendant carried out improvements on the property without the consent of the Plaintiff or the Director of Land as required by the Crown Lands Act. The Plaintiff filed a Section 169 Notice for the Defendant to vacate the premises. The issue before the Court was whether the Defendant had established a right to possession claiming equitable remedy since he had improved the property. The Court, applying Charmers v Pardoe said:
"The court cannot override express provision of law and sanction the possession of the Defendant as a person who has a right to possession in terms of Section 172 of Land Transfer Act."
14. The Defendant in his affidavit alleges an agreement he made with the Plaintiff to purchase the said land and which the Plaintiff acknowledged in writing on 10th February 2006 as shown in Annexure "A" of their Affidavit in reply. The Plaintiff has replied to that and mentions that the "acknowledgment" is signed by LAISA GERE. We respectfully submit that the Plaintiff is LAISIASA QERA and not LAISA GERE and had he prepared the document, he would have at least got his name right. In any event the agreement to purchase the land needs the consent of iTLTB and there being no consent the dealing is illegal.
The Defendant's Submission
15. The Defendant submission's was is in fact an analysis of its view of what the true legal position should be. This is based on
two major grounds which would in their view enable the Court to determine the matter in their favor. The first is that Section 169
of the Land Transfer Act is not a suitable vehicle in which to apply for vacant possession on agricultural leases notwithstanding that the lease is registered.
This is so because the applicant does not fit into one of the categories of ejectors provided for under section 169. That is, the
Plaintiff is not the last registered proprietor of the land or a lessor with power to re-enter where the lessee or tenant is in arrears for such period
or lessor against a lessee or tenant.
16. In support of his contention the Defendant relies on the authority in Sharma v Tabuela [2004] FJHC 183; HBC0026.2004 (15 March 2004) in which Justice Jiten Singh when dismissing a similar application stated:
The registered proprietor must be someone whose interest on the land is registered with the Registrar of titles under the provisions of Land Transfer Act. A person cannot be registered as a proprietor of a piece of land under the provisions of the Land Transfer Act unless the land has been surveyed. Those plans must comply with the provisions of the Surveyors Act – see Regulation 16 and fourth Schedule.
As far as Section (b) and (c) are concerned they apply where there is a landlord tenant relationship. The words 'lessee' mean proprietor of a lease or sublease and lessor is a proprietor of the land leased and includes a sublessor – Section 2. Proprietors mean the registered proprietor of land any estate or interest therein – Section 2. Registration in title is the key to applications under Section 169."
17. The second point raised by the Defendant is the Plaintiffs right to the land is in an "instrument of tenancy" which is registered under the provisions of the Registration Act Cap 224 as a deed. Therefore the instrument of tenancy does not become an instrument of title under the Land Transfer Act nor do the terms in section 2 enable the Plaintiff to bring an action under section 169.
18. The third point raised by the Defendant is that in their views the Honourable Judge's decision in Habid v Prasad [2012] FJHC 22; HBC24.2010 (17 January 2012) in which the Learned Judge held that an instrument of Tenancy registered under the Registration Act was a sufficient title to enable an application for summary eviction was wrong. A section 169 application is only applicable to titles registered under the LTA pursuant to the Torrens System of registration.
19. The fourth point raised is that the Land Transfer Act cannot regulate other types of title for example approval notices, agreement for lease, instrument of tenancy and like agreements as such. These agreements give title but the document itself is registered in the Deeds Registry.
20. The fifth point raised by the Defendant is that the Plaintiff's title is a contract of tenancy. This title states:-
'This contract is subject to the provisions of the Agricultural Landlord and Tenant Act and may only be determined, whether during its currency or at the end of its term, in accordance with such provisions. All disputes and differences whatsoever arising out of this contract, for the decision of which that Act makes provisions, shall be decided in accordance with such provisions.'
21. Therefore any disputes or relief sought by the Plaintiff will require the provisos of ALTA and not the Land Transfer Act.
22. The last point raised by the Defendant's counsel is that there are arguable issues to be determined and a summary proceeding is not suitable. This include the fact that the Defendant lived on the land since 1992 and when the Plaintiff took over the lease he did not ask the Defendant to vacate. That he cultivated the land by working on the sugar cane farm without pay on the week-ends, share farming on the rice lands and one third of production given to the Plaintiff and doing vegetable farming. That in 2006 the Plaintiff accepted $3500:00 from the Defendant as consideration that a subdivision would be done for the house block and vegetable farming area to be given to the Defendant. That after the said agreement an Estate officer from iTLTB attended the site area and marked the area. That the said pegs were confirmed by the Agricultural Tribunal during inspection.
23. That the existence of the pegs and the fact that the Plaintiff did not raise it with the Tribunal goes to prove that the Plaintiff had received the sum of $3500:00. That the institution of these proceeding was brought into light because the Plaintiff wanted more money from the Defendants and they did not give it. That the same arguable issues indicated under this part were instituted as an action in the Agricultural Tribunal, Reference ND 07/10. However, the Tribunal never dealt with these issues and dismissed the Defendants application on the notion that the acreage requirement was not met. To date, these issues have still not been resolved and cannot be ascertained by this Court by way of this summary proceedings. It is therefore prudent for the Plaintiff to go by way of a Writ as this proceeding is irregular and inappropriate.
24. The Plaintiff had been in occupation since 1992 under Mr. Sadiq, and when the Plaintiff came into occupation in 2004, he let the Defendant stay and cultivate the land. Since 2004, the Plaintiff did not even evict the Defendant. Later the Defendant relied on the Plaintiffs promise of the subdivision of the land and the house block to be given to him. On this notion, the Defendant did not even apply for a declaration of tenancy to the Agricultural Tribunal. It was only after the Plaintiff wanted more money from the Defendants and later filing the present action that the Defendants filed for a declaration on tenancy to the Tribunal. This is common sense where both parties had been living together harmoniously for more than six years and to be only ruined by the fact the Plaintiff wanted more money and had the Plaintiff kept his promise, this action and that of the Tribunal, would have never been instituted.
DETERMINATION
25. The first issue to be determined is whether the Plaintiff can bring this action under Section 169 of the Land Transfer Act and if the Plaintiff is unable to bring his action under the Land Transfer Act then there is no need to proceed any further. The Defendant in its detailed submission says that the Plaintiff does not fit into any of the categories of ejectors under section 169. He is not the last registered proprietor of the land or a lessor with power to re-enter where the lessee or tenant is in arrears for such period or lessor against a lessee or tenant. The Plaintiff on the other hand says that he is the last registered proprietor. The Plaintiff's right or title to the land is by an Instrument of Tenancy. This instrument of tenancy was registered under the registrar of deeds. The Defendant contends that the title to the land has to be registered under the Land Transfer Act before the Plaintiff can bring the action under section 169, i.e. under the Torrens system of registration.
26. In Mohammad Habib –v- Janki Prasad the Court came to the conclusion that instruments of tenancy issued by the iTLTB under ALTA and which was registered under the Register of Deeds can be dealt with under section 169. This is because the word registration refers to the registration of the land not the nature of land. Hence if the land is registered in either the Register of Titles or the Register of Deeds it is still registered land. I am not only bound by this decision but I also agree with it for the following reasons. In the first instance the torren's system of land ownership is a system of ownership by registration. It is the registration which defines ownership and makes the title indefeasible subject of course to certain exceptions. What the system does is to protect the registered proprietor of any estate or interest in land recorded in a folio of the register. In this matter the Plaintiff's derived his proprietorship from the registration of the instrument of tenancy in the Register of Deeds book 2004, folio 8961. The indefeasibility of his title is conferred to him as the registered proprietor of the land as the lessee, this is what the registration is protecting.
27. His Lordship Justice K A Stuart in Housing Authority –v- Muniappa ((1977) FJSC states that section 169 of the Land Transfer Act speaks of those who may apply for relief against any person in possession of land. They include the last registered proprietor of the land, that is, the land of which the person summoned is in possession. The Plaintiff Housing Authority holds a registered lease therefore it could be characterized as the last registered proprietor. His Lordship therefore came to the conclusion that the Housing Authority can bring the action under section 169. The Defendant relies on the decision of Justice Singh in Sharma –v- Tabuela (2004) FJHC 183 to confirm that registration must be under the Land Transfer Act before an action can be brought under section 169. I am not certain that Justice Singh used that as the basis upon which he made his decision, his decision is based on the fact that the Plaintiff in that case did not have a title to the land which is registered in any form sufficient for the Plaintiff to act as the last registered proprietor and therefore bring the action. The Supreme Court decision in the Housing Authority –v- Muniappa (Supra) that those who could use section 169 as the vehicle for seeking relief are those which include the last registered proprietor and those who hold a registered lease can be characterized as the last registered proprietor is sufficient. Whether it was registered under the Register of Deeds Office or the Register of Titles Office was immaterial, what was important is that the title giving right to proprietorship must be registered with a book and folio number identifying the Plaintiff as the last registered proprietor. That is exactly the same as proprietorship by registration or title by registration.
28. The Defendant is, in my view, also wrong in assuming that the registered instrument of tenancy granted to the Plaintiff does not fall within the ambit of the Land transfer Act. Section 5 of the Land Transfer Act is clear as to which land is subject to it, this provision states:-
What lands subject to Act
The following freehold and leasehold land shall be subject to the provisions of this Act:-
(a) all land which has already in any manner become subject to the provisions of the Land (Transfer and Registration) Ordinance;
(Cap. 136.) (1955 Edition)
(b) all land hereafter alienated or contracted to be alienated from the Crown in fee;
(c) all leases of Crown land granted pursuant to the provisions of the Crown Lands Act, all leases of native land granted pursuant to the provisions of the Native Land Trust Act (iTLTB) and all mining leases, special mining leases, special site rights and road access licences granted pursuant to the provisions of the Mining Act;
(d) ...
29. Clearly this land falls under paragraph (c). It is firstly a native lease granted by the iTLTB to the Plaintiff to be used for agricultural purposes (hence the ALTA) requirement). If it was a mining lease the provisions of instrument of tenancy will be guided by the requirement of the Mining Act but it still is a native lease and therefore is subject to the Land transfer Act.
30. To further bring this instrument of tenancy within the Land Transfer Act Section 10 of the Native Land Trust Act provides that all native leases shall be recorded by the Register of Titles in a Register of Native Leases. Section 10(2) provides:-
When a lease made under the provisions of this Act has been registered it shall be subject to the provisions of the Land Transfer Act, so far as the same are not inconsistent with this Act, in the same manner as if such lease has been made under that Act, and shall be dealt with in a like manner as a lease so made"(my emphasis)
31. The subject lease is titled "Instrument of Tenancy" granted by the Native Land Trust Board to the Plaintiff. The Land Transfer Act defines an "instrument" to include every document registered or capable of registration under this Act or in respect of which any memorial is by this Act directed, required or permitted to be entered in the Register Book or endorsed on any registered instrument. At the bottom right hand corner of the instrument of tenancy is the detail of registration including the date of registration, the Book and the folio number. By virtue of its registration and its eventual entry in the Register Book it has complied with the requirement of the Land Transfer Act.
32. The above point also answers the Defendant's submission that the Land Transfer Act cannot regulate other types of title for example approval notices, agreement for lease, instrument of tenancy and like agreements as such. The provision of section 5 of the Land Transfer Act clearly includes any lease granted by iTLTB capable of being registered and gives a right of ownership to the last registered proprietor. It is true that the Land Transfer Act cannot regulate the leases of the type described by the Defendant but section 5 brings those leases within the Land Transfer Act by virtue of it being capable of registration. The regulation part of the leases depends on the type of lease whether they be for agricultural or mining purposes. In Soma Raju –v- Bhajan Lal FCA Civil Appeal 48/1976 the Court of Appeal held that the indefeasibility provisions under the Land Transfer Act extinguished an ALTA tenancy, the special provision prevailing over the general.
33. Another important point raised by the Defendant is that the Plaintiff's instrument of tenancy is an agricultural lease governed by the Agricultural Landlord and Tenancy Act and therefore any dispute in respect of the lease must be determined under the same act. Indeed this is true if the dispute arose between the lessee and the lessor regarding the contract of tenancy. That is, if the lessee does not abide by the terms of the lease to use the land for the agricultural purposes for which it was granted (or for mining purposes if it was a mining lease).
34. I am satisfied given the above that the Plaintiff can bring the action under section 169 of the Land Transfer Act.
Tri-able Issues
35. The Defendant further submits that there are tri-able issues and that Section 169 is not a proper vehicle to determine this matter. Under section 172 of the Land Transfer Act a section 169 summons can be dismissed if the person shows cause why he/she refuses to give up possession. The Plaintiff would, if need be, proceed with the eviction action through another process, usually by writ action.
36. The first point raised by the Defendant's Counsel is that the Defendant had lived on the land since 1992 and when the Plaintiff came into possession he did not ask him to vacate. That the Defendant further stated that he also cultivated the land and helped in the cane farm. I am of the view that the mere fact of not being asked to vacate does not amount to a right to possession. The Defendant has pursued this claim under Agricultural Land and Tribunal Act and was refused he then appealed against that decision and that too failed. It is quite clear to this court from the ALTA Tribunal's and the Central Tribunal's decisions that the Defendant has not provided any evidence worthy of the tribunal's evaluation neither has he provided this court with any evidence sufficient to raise a threshold ALTA question. In Wati –v – Raji (1996) FJHC 105 Justice Fatiaki when dealing with the issue of occupation as giving right to possession stated in the second last paragraph of his decision:-
Turning finally to the question of "propriety estoppel". Suffice to say that the mere occupation of a piece of land on a yearly tenancy for whatever length of time, is not a circumstance capable of giving rise to any form of "estoppel", propriety or otherwise, nor in my view is any equity created thereby which the court would protect"
37. There is no need to obtain any further evidence to sustain this point and can be dealt with summarily.
38. The second point made by the Defendant that the Plaintiff had accepted $3,500:00 from him as consideration that a sub-division would be done for the house block and as a consequence an Estate Office from iTLTB had attended the site and marked the area. This was denied by the Plaintiff. In support of this the Defendant provided as evidence copies of two agreements attached to his affidavit in opposition and marked as "Annexures "A" & "B". This evidence should in my view should not be accepted because it was signed and entered into by one LAISA GERE. The Defendant did not make a connection between the Plaintiff LAISIASA QERE and the person who signed the agreement LAISA GERE. The Plaintiff has vehemently denied that he entered into any agreement whatsoever with the Defendant and says that the attached agreement is a forgery. I have no option but to believe what the Plaintiff has said for the simple reason that these are two distinct persons and that no effort was made by the Defendant to say that LAISE GERE and LAISIASA QERE are the same person. These are two distinct persons within the iTaukei context. The other point is that the Plaintiff cannot alienate any portion of his lease without the consent of the iTLTB and this agreement if it existed is null and void. Again no further evidence is required.
39. The Defendant further states that the existence of pegs and the fact that the Plaintiff did not raise it with the Tribunal goes to prove that he received the $3,500:00. That these arguable issues were instituted as an action in the Agricultural Tribunal but was never dealt with and cannot be ascertained in this court by summary proceedings. In respect of the first part of this submission this court is of the view that the existence of the pegs could not prove that the Plaintiff received the $3,500:00. This money if it was given to anyone was given to LAISA GERE whoever that person is and it could never bind the Plaintiff. No further evidence is required the Defendant's own annexed affidavit is sufficient. The second important point is that the fact that these issues were not determined by the Agricultural Tribunal does not mean that it has to be dealt with here. This court has already taken judicial notice of the fact that that application was unsuccessful in the first instance and at the appeal. Therefore it is not necessary to revisit this aspect of the matter any further. I am therefore of the view that this matter can be dealt with summarily under section 169.
Conclusion
40. Given the above I am satisfied that the Plaintiff can bring this action under Section 169 of the Land Transfer Act. I am further satisfied that there are no tri-able issues raised by the Defendant which requires that this action be instituted in
any other way. I am also satisfied that the Defendant has not shown sufficient cause to remain in the property and therefore the
orders sought should be granted.
Orders
41. I therefore order that the:-
(i) The Defendant give vacant possession within one month from the date of this order;
(ii) That the Plaintiff be awarded costs of this action which I summarily access at $1500:00 to be paid within one month of this order.
Dated at Labasa this day of 2014.
H A ROBINSON
Master, LABASA HIGH COURT
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