Construction Equipment Hire Ltd v Elder [2014] FJHC 602; Civil Appeal 30.2012 (7 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Appeal No. 30 of 2012

BETWEEN:

CONSTRUCTION EQUIPMENT HIRE LIMIED a company incorporated in Fiji and having its registered office at Suva.
Appellant
(Original Plaintiff)

AND:

EFEREMO ELDER and other occupants of the property comprised and described in Certificate of Title No. 40127, Lot 1 on DP9822, Wailekutu, Suva, Occupation unknown to the Plaintiff.
First Respondent
(Original First Defendant)

AND:

VIJAY ANAND and other occupants of the property comprised and described in Certificate of Title No. 40127, Lot 1 on DP 9822, Wailekutu, Suva, Occupation unknown to the Plaintiff.
Second Respondent
(Original Second Defendant)

APPERANCE : Ms M Drova for the Appellant
Mr F Vosarogo for the Respondents

DAT E OF JUDGEMENT: 7 AUGUST 2014

JUDGMENT

1. This is an appeal filed against the decision of the Learned Master delivered on 27 September 2012 and the Appellant sought the following orders:

A. That the Orders made by the Learned Master on 27 September 2012 be set aside.

B. That the Respondents give up immediate vacant possession to the Appellant of the premises located near the river bank comprised and described in Certificate of Title No. 40127 being Lot 1 on DP 9822 and comprising an area of 4,101m² and located at Wailekutu, Suva of which the Appellant is the registered proprietor.

C. That the costs of this Appeal and hearing in the High Court be paid by the Respondents.

2. The Notice of Appeal stating 5 Grounds of Appeal was filed on 17 October 2012.

3, Facts
3.1 The Appellant is the registered proprietor of the title of land in Certificate of Title No. 40127, Lot 1 on DP9822, comprising and area of 4101 square meters at Wailekutu, Suva.

3.2 The Plaintiff claims the Defendants reside within the boundaries of the Plaintiff's land without license or consent of the registered proprietor of the land.

3.3 By the Notice of Eviction dated 8 February 2013, the Plaintiff sought the eviction of the Defendants who currently occupies the land.

3.4 The Defendants refused to vacate the land and stated the said portion of the land is result of soil accretion and diversion of the Wailekutu Creek and therefore it's a state foreshore land and the Plaintiff had stated that there was no confirmation from the Director of Lands on the Defendants' claim.

3.5 Thereafter, the Plaintiff filed this application on 3 may 2012 by way of Originating Summons in pursuant to Order 113 of the High Court Rules which states:

"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his license or consent or that of his predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order"

3.6 Subsequently, amended Originating Summons was filed by the Appellant and the Learned Master by his decision made on 27 September 2012 struck out the amended Originating Summons seeking eviction of the defendants. The Appellant made this appeal against the said decision of the Learned Master.

4. Now, I deal with the Grounds of Appeal:

First Ground of Appeal

1. The Master erred in considering of whether the Respondents erred in possession of Sate Foreshore land due to soil accretion and diversion of the Wailekutu Creek when the portion of the land occupied by the Respondents forms part of the Appellants Freehold Title.

In paragraph 9, 10, 11 and 12 the Learned Master had stated in his decision:

"9. The Plaintiff submits that the findings made by the iTaukei Land Trust Board is not conclusive but merely an opinion as it is not supported by proper reports from either a registered surveyor nor a report from the Director of Lands to confirm the allegations being made by it. By the same token the survey plan submitted by the Plaintiff is not conclusive and has more pertinently does not address the issue of the soil accretion and the diversion of the creek. This can be done through a serious of previous plans taken during a particular time period being superimposed on the survey plan submitted to the court. The surveyor has not only failed to do any superimposition of previous plans, but has not addressed the vital issue of diversion of the creek and the accretion of the soil in professional manner, using his expert knowledge. The letter of the iTaukei Land Trust Board, unreservedly state that the land occupied by the Defendants was State Foreshore Land and further elaborate that it had happened due to the soil accretion and or diversion of creek. This needs to be addressed properly and without that no determination of eviction if possible.

10. The court cannot delegate its analytical power of the evidence to any expert however, experienced that person in his own field or science. The final decision is taken by court making use of the expert opinions when there is a dispute as to their opinions. The surveyor is an expert in his field of surveying but if he has not addressed the vital issue and submitted a survey report it is worth nothing more than opinion of an expert, which has not addressed the relevant issue. In such circumstances the expertise of the person, stated in the affidavit of the surveyor, cannot add any evidential eight, as the report cannot be of any use to the court in order to determine the issue before the court. This is the ratio of Wakefield v. Bishop of Lincoln (1921) 90 LJPC 174 (see Cross on Evidence 2nd Australian Edi P622).

11. The survey report of the Plaintiff has not addressed the issue of diversion of the creek over the years. This can be done through superimpositions of old survey plans and by doing this it can be safely deduced that whether there was soil accretion and or diversion of the creek over the years. The surveyor has not submitted his expert opinion either on the issue of diversion of the creek or soil accretion. Admittedly, the parties have sought the opinion of iTaukei Land Trust Board on this issue and their opinion was in favour of the Defendants.

12. There is a survey plan annexed to Plaintiff's title, but that is not conclusive as there is no indefeasibility attached to the plan as opposed to title. If some State Foreshore Land is by mistake or otherwise included in such a plan attached to the title, the indefeasibility of the title will not be attributable to such a plan and the State Foreshore Land will not change its status and will remain so. If not a party can fraudulently acquire State Foreshore Land by attaching a survey plan which includes State Foreshore Land."

5. On the said Ground of Appeal, the Appellant submitted that the Master erred in law by arriving at the following conclusions:

• There is a serious issue as to whether the land occupied by the Defendant was formed due to soil accretion and or diversion of the creek; which goes to the root of the identification of the subject matter of the Plaintiff.
  
• The pertinent issue is the identity of land of the Plaintiff and whether the Defendants are in possession of State Foreshore land.
  

I don't agree with the submission of the Appellant that the above two issues are irrelevant as submitted by the Appellant. It is relevant for the reason that the Appellant had failed to establish to the court the identity of the lot occupied by the Respondents lies with ownership of the Appellant to eliminate the position taken up the Respondent that the land is state foreshore land. The Master had considered the said issue and came to the conclusion that there is a serious dispute in this matter. The Respondent had come into occupation 23 years back and the Appellant purchased the land in 2010. There was not any evidence the possession of the land by the Appellant's (Plaintiff's) predecessors. The Respondent from the inception of the proceedings (from Notice of Eviction) had taken the position it is a state foreshore land. In paragraph 8 of the Master's decision he had extensively dealt with the evidence placed before him and came to the conclusion. He cited the case of Filmet v. Avery [1989] E.G. 92 where it was stated "where the existence of a serious dispute is apparent he should not use this procedure". It is also a fact there is no acknowledgement by the Respondent that the Respondents are residing in the Plaintiff's land and the documentary evidence placed before the Learned Master reveals there is a serious dispute with regard to the identification of the land.

6. The application made in this matter is summary in nature and the Appellant should have instituted a case where the land in dispute could be identified clearly and the Respondent is in possession without consent, without any right or interest. All these issues in this case are doubtful and establish a serious dispute which should be properly tried at a trial. The Appellant is aware about all the said issues and by institution of the action by way of originating summons in terms of Order 113 is an abuse of the process of the court. I agree.

7. The Appellant under the 1st Ground of Appeal, the Appellant had dealt with defeasibility of the title to the land and cited number of case authorities and finally submitted that the:

(a) the Defendants (Respondents) failed to establish the right to possession of the land;

(b) the Defendants (Respondents) failed to establish that there are serious issues to dispute the Appellant's title to the land to warrant a striking out of the Appellant's application.

8. However, in paragraph 9 of the decision of the Learned Master, it was stated:

"9. The Plaintiff submits that the findings made by the iTaukei Land Trust Board is not conclusive but merely an opinion as it is not supported by proper reports from either a registered surveyor not a report from the Director of Lands to confirm the allegations being made by it. By the same token the survey plan submitted by the Plaintiff is not conclusive and has more pertinently does not address the issue of soil accretion and the direction of the creek. This can be done through a series of previous plans taken during a particular time period being super imposed on the survey plan submitted to the court. The surveyor has not addressed the vital issue of diversion of the creek and accretion of the soil in professional manner using his expert knowledge..........".

9. The letter of the iTaukei Land Trust Board, unreservedly state that the land occupied by the Respondents was the State Foreshore land and further elaborate that it has happened due to the soil accretion and or diversion of creek. This issue needs to be addressed properly and without such determination eviction is impossible.

Accordingly, I conclude the Appellant fails on 1st Ground of Appeal and I hold in favour of the Respondents.

10. 2nd Ground of Appeal

2. That the Master erred in failing to consider the Appellant's argument that the findings made by the iTaukei Land Trust Board is not conclusive but merely an opinion as it is not supported by evidence by way of reports from either registered surveyor not a report from the Director of Lands to confirm the allegations made in it.

The Appellant's contention is that the iTaukei Land Trust Board's findings is not conclusive but merely an opinion as it is not supported by evidence. However, I find as quoted in paragraph 8 of this Judgment the Learned Master had not considered that the findings of the iTaukei Land Trust Board is final and conclusive. The Learned Master's findings were that the Plaintiff failed to establish the issue of soil accretion and the diversion of the creek. The Learned Master had stated in his decision "........By the same token the surveyor plan submitted by the Plaintiff (Appellant) is not conclusive proof and has more pertinently does not address the issue of soil accretion and diversion of the creek. This can be done through a series of previous plans....."

I am satisfied that the Learned Master had considered the ground raised by the Appellant in this court and the Appellant fails in the second Ground of Appeal.

11. 3rd and 4th Grounds of Appeal

3. That the Master erred in giving consideration to the letter from iTaukei Land Trust Board as the finding made by the department is not only wrong in law but the ITaukei Land Trust Board is not the proper government department to be arriving at conclusions such as that: The land currently occupied by Elder and family was formed as a result of soil accretion and diversion of the Wailekutu Creek. We have deduced that the land is State Foreshore land and therefore should be administered by the Director of Lands.

4. That the Master erred in failing to give due consideration to the fact that the portion of the land which the Respondents occupy regardless of whether it was a result of soil accretion or formed out of a diversion of the creek, forms part of Certificate of Title No. 40127 being Lot 1 on Deposited Plan No. 9822, comprising an area of 4101m².

The Appellant had submitted that the Appellant it is not safe for the court to draw its conclusion from a letter produced by the iTaukei Land Trust Board to say that the land is formed as a result of soil accretion and therefore should be considered as State Foreshore Land without confirmation of the Director of Lands and also quoted certain doctrines. There is no necessity to deal with the doctrines for the simple reason that the Master's findings are on available evidence before him. The Learned Master stated in the paragraph 12 of his decision:

"12. There is a plan annexed to the Plaintiff's title; but that is not conclusive as there is no indefeasibility attached to the Plan as opposed to the title. If some state foreshore land is by mistake or otherwise included in such a plan, attached to the title will not be attributable to such plan and the state foreshore land will not change its status and will remain so. If not a party can fraudulently acquire state foreshore land by attaching a survey plan."

The above paragraph shows the Learned Master was convinced and satisfied that the Appellant could not establish the portion of land occupied by the Respondents which is owned by the Appellant as the Registered Title holder. As such the Master's conclusion was that the Appellant failed to establish its rights over the land occupied by the Appellant. It is also important to note the Appellant had purchased the land in 2010 and the Respondents were occupying the land for 23 years. Without any evidence before the Learned Master that the Respondents possession is as trespassers or squatters and as the Respondents had disputed the proprietorship of the Appellant to the land occupied I conclude the conclusion of the Master is well considered. The Appellant fails in the 4th Ground of Appeal.

12. 5th Ground of Appeal

5. That the Master erred in his decision in stating that there were serious issues involved in the matter and that the application brought by way of originating summons was wrong and an abuse of process when clearly this was not the case.

I have already concluded that there are serious issues to be tried at a proper trial and the Appellant's application pursuant to Order 113 is incorrect. As such the decision by the Master that the application by way of originating summons was wrong is justified and I conclude it's an abuse of process of the court. Accordingly, the Plaintiff fails on the 5th Ground of Appeal.

13. Accordingly, I make the following Orders:

(a) Appeal dismissed;

(b) The Appellant is ordered to pay summarily assessed costs of $2,500.00 to the Respondents.

Delivered at Suva this 7th Day of August 2014

C. KOTIGALAGE
JUDGE