Petrie Ltd v Bi [2014] FJHC 31; Civil Action 159.2011 (4 February 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 159 of 2011

BETWEEN:

PETRIE LIMITED
a limited liability company having its registered office in Sigatoka.
PLAINTIFF

AND:

ASIA BI
the Executrix and Trustee of the Estate of Din Mohammed of Natadola, Sigatoka.
DEFENDANT

RULING

BACKGROUND

1. On Monday 30 July 2012, whilst I was still Master of the High Court, I granted Order in Terms of the plaintiff's application under section 169 of the Land Transfer Act (Cap 131).
   
2. Effectively, the Order required the defendant to give immediate vacant possession of Lot 28 DP 2967 on CT 13825 to the plaintiff. I then summarily assessed costs at $1,000.
   
3. The Order was sealed on 31 July 2012, although I note that it was dated 03 August 2012.
   
4. In court, I did explain to the defendant the requirements of section 169 and that, after having considered the affidavits and the submissions filed, I was inclined to grant Order in Terms.
   
5. I understand the defendant then appealed my ruling but the appeal did not proceed further as the Learned Judge who was then in carriage of the appeal required my written reasons. I regret the delay in writing the reasons.
   

THE LAW & ANALYSIS

6. Section 169 of the Land Transfer Act provides 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."

7. Firstly, the plaintiff is the last registered proprietor of the land in question so it has locus to institute proceedings under section 169.
   
8. Once it is shown that the plaintiff is the last registered proprietor under the first limb, or is a lessor with power to re-enter because the lessee is in arrears of rent under the second limb, or is a lessor who has issued a legal notice to quit or whose lease to the defendant has expired under the third limb, the onus then shifts to the defendant to show cause as to why vacant possession should not be given (see section 172 of the Land Transfer Act).
   
9. In discharging that burden, the defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169. This does not mean that he has to prove conclusively a right to remain in possession. On the contrary, it is enough to show some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).
   
10. After having considered the affidavits filed by the defendant, I was not convinced that she had shown sufficient cause under section 172. My reasons follow.
    
    • (i) the land in question is approximately 925 acres in size. The defendant occupies a portion only of the said land. I start with the statement that, as registered proprietor, the plaintiff's right over the land is inviolable.
      
    • (ii) it appears that the said land used to be agricultural land. The defendant, apparently some years ago, did file an application to the Agricultural Tribunal for a declaration of tenancy.
      
    • (iii) that application was struck out by the learned Tribunal on 09 May 2011 for lack of jurisdiction.
      
    • (iv) the reason why the Tribunal ruled that it lacked jurisdiction was because at the time it was sitting to consider the defendant's application, the land in question had been rezoned from rural to Special Use (Tourism Integrated Resort Development) and therefore fell outside the purview of ALTA (as per section 3 of ALTA).
      
    • (v) while I would consider an arguable ALTA-tenancy-claim sufficient cause under section 172 provided such a claim was pending before the Agricultural Tribunal, for this court, the Tribunal's ruling (see (iv) above) means that the defendant is precluded from arguing firstly, that she has a potential/pending ALTA claim and, secondly, that that claim is sufficient cause under section 172 of the Land Transfer Act.
      
    • (vi) in her affidavit in opposition, the defendant deposes that her late husband and the plaintiff executed a Memorandum of Agreement, giving them the lease of the property. She deposes that the subject land is the only means of income for her family.
      
    • (vii) however, I have perused that agreement which is annexed to her affidavit and the term of the agreement is for 10 years only. The agreement lapsed and expired in the year 1975. She has no right whatsoever, deriving from the said agreement, to remain in possession.
      
    • (viii) I believe the affidavit of Qereqeretabua that, since the expiration of that lease, the defendant has stayed on the land without paying any rent whatsoever.
      

CONCLUSION

11. For the above reasons, I granted Order in Terms of the Plaintiff's application and gave the defendant 14 days to vacate the property in question. I also ordered costs against the defendant in the sum of $1,000.
    

Anare Tuilevuka
JUDGE

04 February 2014