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Narayan v Vatucicila [2015] FJHC 1039; HBC219.2014 (11 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 219 of 2014


IN THE MATTER OF THE LAND TRANSFER ACT
Section 169 of Part XXXIV.


BETWEEN :


SHRI NARAYAN of Yalalevu, Ba.
PLAINTIFF


AND :


INOSI VATUCICILA of Lot 12, Tokotoko, Navua, Senior Pastor.
DEFENDANT


BEFORE : Master Vishwa Datt Sharma

COUNSELS : Mr. Ritesh Naidu on instructions of Patel & Sharma for the Plaintiff.

Mr. Romanu for the Defendant.


Date of Hearing : 07th July, 2015

Date of Ruling : 11th December, 2015


RULING


INTRODUCTION


  1. The Plaintiff filed Summons for Ejectment on 6th August, 2014 and sought for the following orders-
  2. This application is supported by an affidavit of Shri Narayan sworn and filed on 8th August, 2014.
  3. The application is made pursuant to Section 169 of Part xxxiv of the Land Transfer Act, Cap 131.
  4. The Defendant was personally served with this application on 25th August, 2014 and an affidavit of service to this effect has been filed into court.
  5. The Counsel representing the Defendant was granted 14 days time to file and serve his affidavit in opposition on 02nd December, 2013.
  6. The case was adjourned for hearing on 07th July, 2015.
  7. This case proceeded to hearing on a defended basis and both parties to the proceeding were represented by Counsels at the hearing.
  8. This court has a duty to determine the pending issue before the court in a just and fair manner in terms of the laws provided for in ss169, 171 and 172 of the Land Transfer Act [Cap 131].

PLAINTIFF'S AFFIDAVIT IN SUPPORT OF APPLICATION


  1. The Plaintiff deposed as follows-

DEFENDANT'S AFFIDAVIT IN OPPOSITION


  1. That INOSI VATUCICILA of Lot 12, Tokotoko, Navua, Senior Pastor in response say as follows:

THE LAW


  1. The application is filed in terms of s 169 of the Land Transfer Act [Cap 131] which 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) lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired."


  1. In the case of Ram Narayan v Moti Ram (Civ. App. No. 16/83) Gould J.P. said-

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."


  1. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act (Cap 131) respectively which stipulates as follows:-

"s.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."


s.172. If a 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, mortgagee or lessor or he may make any order and impose any terms he may think fit."

(Underlined is mine for emphasis)


  1. As far as the requirements in terms of section 172 are concerned, the Supreme Court in the case of Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said as follows and it is pertinent:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced."


  1. The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Ajmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where the court said:

"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown. (emphasis added)


  1. In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975) the Court of Appeal said:

'These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –


  1. Under Section 172 of the Act the judge is empowered to dismiss the summons if the respondent proves to his satisfaction that he has a valid defence, a right to possession, locus standi and or a licence. It further provides that a judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a Plaintiff to take any other proceedings to which he may be otherwise entitled.
  2. It is for the defendant to 'show cause' why he refuses to give vacant possession of the residential leasehold property to the Plaintiff as sought for by the Plaintiff.
  3. Reference is made to the case authorities of Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported) wherein the Supreme Court held 'that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide the cases on summary proceedings of this nature, but will dismiss the summons without prejudice to the Plaintiff's right to institute proceedings by Writ of Summons.'

ANALYSIS and DETERMINATION


  1. The question for this court to determine is whether the Plaintiff is entitled to the possession of the land comprised in Certificate of Title Number 37796, Lot 12 DP 8581, of which the Plaintiff is the registered proprietor in terms of s169 of the Land Transfer Act [Cap 131]?
  2. In this case, the Plaintiffs must first comply with the requirements of section 169 of the Land Transfer Act cap 131, which are stated hereunder as follows-
  3. In this instance, the first limb of s169 applies; the plaintiff is the last registered proprietor of the Certificate of Title Number 37796, Lot 12 DP 8581. In this respect the plaintiff has annexed in his affidavit a copy of the Certificate of Title Number 37796, Lot 12 DP 8581, which clearly shows that the land was transferred to the Plaintiff on 21st June, 2007. The Plaintiff is for the purposes of section 169 the last registered proprietor of the said Certificate of Title Number 37796, Lot 12 DP 8581.
  4. Sections 39-42 of the Land Transfer Act, and under the Torrens system of land registration which operates in Fiji, the title of the registered proprietor is indefeasible unless actual fraud is proved. (Case of Subramani v Sheela [1982] FJCA 11; [1982] 28 FLR 82 (2 April 1982); Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p. 210; Fels v Knowles 26 N.Z.L.R. 608, at p 620 refers).
  5. In Subramani (supra) the Fiji Court of Appeal (per Gould V.P.' Marsack, J.A., and Spring J.A.) states as follows-

'The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v Knowles 26 N.Z.L.R. 608. At page 620 it is said;-


"The cardinal principle of the statute is that the register is everything, and that, except in case of the actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world."


  1. Bearing the above in mind, I find that the Plaintiff has the locus standi to bring this action against the Defendant in this case.
  2. After the Plaintiffs have established the first limb test of section 169 that is that the Plaintiffs are the registered proprietors of the subject Certificate of Title No. 37796, Lot 12 DP 8581, then the Defendant bears the onus of showing cause as to why vacant possession should not be granted to the Plaintiffs.
  3. Pursuant to section 172 of the Land Transfer Act Cap 131. The Defendant needs to satisfy this court on affidavit evidence that she has a right to possession. (Case of Muthusami v Nausori Town Council F.C.A. 23/86 refers).
  4. There is no need to prove conclusively a right to possession and it is sufficient for the Defendant to prove that there is some tangible evidence establishing the existence of a right or of an arguable defence. (Case No. 152 of 1987- Morris Hedstrom Ltd v Liaquat Ali refers).
  5. The Defendant was served with the Plaintiff's application seeking vacant possession on 25th August, 2014 and filed his affidavit in opposition on 23rd March, 2015.
  6. I have very carefully perused the entire affidavit in opposition filed by the Defendant in the within action and reproduced at paragraph 10 hereinabove.
  7. I have taken into consideration what materials the Defendant had deposed in his affidavit in opposition, as reproduced at paragraph 10 hereinabove.
  8. For the aforesaid rational, I find that the Plaintiff is the rightful registered proprietors of the land comprised in Certificate of Title Number 37796, Lot 12 DP 8581.
  9. The defendant has failed to show any cause including a right to possession or has tangible evidence establishing a right or supporting an arguable case for such a right that must be adduced in terms of section 172 of the Land Transfer Act Cap 131.
  10. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  11. Following are the final orders of this court.

FINAL ORDERS


  1. The Defendant to give vacant possession of the land comprised in the Certificate of Title Number 37796, Lot 12 DP 8581 to the Plaintiff, of which the Plaintiff is the registered proprietor.
  2. The Defendant to deliver vacant possession to the Plaintiff in one (1) months' time on or before the 11th January, 2016 by 4pm.
  1. Cost is summarily assessed at $750 against the Defendant.

Dated at Suva this 11h day of December, 2015.


.................................................
VISHWA DATT SHARMA
Master of High Court, Suva


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