Chand v Wati [2015] FJHC 329; HBC49.2013 (1 May 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 49 of 2013

BETWEEN:

SHIU CHANDofVatudova, Tabia, Labasa, Farmer.
PLAINTIFF

AND:

VED WATI of Waiqili, Labasa, Domestic Duties.
DEFENDANT

Before : Master Robinson

Appearances : Mr. Sharma of Samusamuvodre Sharma Law for the Plaintiff
: Mr.Sadiqof SadiqEsq. for the Defendant

RULING

Introduction

1. This is the plaintiff's application by summons seeking vacant possession under section 169 of the Land Transfer Act Cap. 131 for the defendant to give up vacant possession of the land together with the premises located on iTaukei Lease No: 30031 on Vunivutu Sub- division known as Lot 16 on Plan No. 1629.

2. The application is supported by an affidavit sworn by the plaintiff which states that:-

(1) He is the registered lessee of the said land and that the defendant is his sister;

(2) That he no longer wishes to sub-let the property to his sister and that he has given her verbal and written notice but she still remains on the property;

(3) That the property was purchased from one Aruna Devi and the defendant is illegally occupying the property;

(4) That the defendant is a well-established person and earns more than $15,000:00 per year with an average of 250 tons of cane per year; and

(5) That he prays that the defendant vacate the property immediately and undertakes to pay any damages.

3. The defendant opposes the application and in her affidavit in opposition she states, so far as is relevant the following:-

(1) That she admits that she is the defendant and that the plaintiff is her brother;

(2) That as far as she is aware the plaintiff fraudulently obtained the transfer from Aruna Devi another of their sister and that the fraud was reported to the police; and

(3) That the police are still investigating the matter;

4. The plaintiff in reply, state so far as is relevant, the following:-

(1) That he denies that there was any fraud in the transfer in that all the documents required for the transfer, the obtaining of the consent and the registration was attended to in the presence of a solicitor;

(2) That the contents of the documents and its legal contents were explained to Aruna Devi by the solicitor;

(3) That although there was a report to the police the police have found nothing to show that there was fraud involved after inspecting the transfer and consent documents; and

(4) That he seeks order in terms of the Summons.

The Submissions

5. The plaintiff's Counsel's submission is simply that the plaintiff is the last registered proprietor of the land and has the right under section 169 of the Land Transfer Act to obtain an order for vacant possession of the land. That the defendant has no cause to remain and therefore she should vacate the premises. That if the defendant did have a licence to remain, that licence has now been withdrawn and the defendant should, on that withdrawal, vacate the premises.

6. That the defendant's occupation is unlawful and illegal and therefore she should give immediate vacant possession to the plaintiff. The defendant also has failed to adduce any tangible issue which gives rise to her right of possession.

7. The defendant through her Counsel submits that she has a right to remain on the premises in that the property was her mother's before it was transferred firstly to her sister and later, fraudulently to her brother. That the fraud was reported to the police at Labasa Police Station.

8. That the plaintiff has used the wrong procedure to obtain vacant possession in that the plaintiff is not the last registered proprietor as is required under section 169 of the Land Transfer Act.

9. That there are a lot of issues to be determined in this action and a section 169 is not suitable for this action, that a section 169 proceedings is summary in nature or in clear cases where no issues to be tried. The defendant relies on the fact that she does not have to prove a conclusive right to remain in possession only same tangible evidence establishing a right or at least supporting an arguable case for a right; (Morris Hedstrom Ltd -v- Liaquat Ali).

10. The defendant was also of the view that she ought to have been granted further opportunity to file further affidavit in reply to the affidavit in reply. Defendant's Counsel further relies on the decision in Shyam Lal –v- Eric Martin Schultz – CA 1972 FLR 18 – P. 152 where it was held that the procedure in chambers under section 169 is not appropriate when there are complicated questions of fact (particularly if there are allegations of fraud).
Therefore as fraud is raised in this case the application should be struck out.

Determination

11. The legal requirement under section 169 is that, those who can evict person illegally in occupation of their land must be:-

1. the last registered proprietor of the land;
   
2. a lessor with power to re-enter where the lessee or tenant is in arrears for such period as may be provided in the lease and, in the absence of any such provision therein, which the lessee or tenant is in arrears for one month, whether there be not sufficient distress found on the premises to countervail such rent and whether or be not any previous demand has been made for the rent;
   

100. a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.
     

12. It is clear that the plaintiff does not fit into paragraphs (b) & (c) of section 169 but is he the last registered proprietor? In other words can a person who holds a native lease be considered for the purposes of section 169 a registered proprietor?

13. Justice Byrne in Gulam Mohammed Properties Limited -v- Suresh Patel in a 1994 decision accepted that the plaintiff who held the property under a crown lease was the last registered proprietor.

14. It is not in dispute that the Plaintiff holds a registered lease issued by the iTLTB under the Agricultural Landlord and Tenancy Act. It is for all intents and purposes Native Lease No. 30031and was registered on the 29 August 2012 and transferred to the plaintiffon the 11 March 2014.

15. The lessee under section 169 can eject a trespasser simply because the lessee is the last registered proprietor. The Plaintiff does not have to hold a title in fee simple to become the last registered proprietor. A proprietor is defined in the Land Transfer Act as "proprietor" means the registered proprietor of land, or of any estate or interest therein". The Plaintiff has an interest by virtue of the native lease and therefore a proprietor as defined above and can bring the action under section 169.

16. InMohammad 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.

17. I am of the view that this is the correct position 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. 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.

18. 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.

19. The Supreme Court decision in the Housing Authority -v- Muniappa (Supra), that those who could use section 169 as the vehicle for seeking could also include those who hold a registered lease. 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 rise to the proprietorship must be registered.

20. To further bring the native lease within the Land Transfer Act, Section 5 of the act states:-

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) ...

21. 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.

22. Not only can we rely on section 5 of the Land Transfer Act, but section 10 of the Native Land Trust Act also provides that all native leases shall be recorded by the Register of Titles in a Register of Native Leases and be subject to the provisions of the Land Transfer Act. 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)

23. I am therefore satisfied that the Plaintiff can bring the action under section 169 of the Land Transfer Act.

Does the defendant have cause to remain on the property?

24. In all section 169 matters the defendant does not have to prove a conclusive right to remain in possession only some tangible evidence establishing that right;; (Morris Hedstrom Ltd -v- Liaquat Ali).

25. It is also clear that where there are complicated questions of fact, applications under section 169, which is summary in nature, is not a suitable vehicle; Shyam Lal -v- Eric Martin Schultz 1972 FLR 18 at 152.

(a) Tri-able Issues?

26. The defendant alleges in her affidavit that there are tri-able issues which need to be determined by oral evidence and therefore section 169 is not suitable for this matter. The first of these issues is that the defendant had lived on the premises for over forty (40) years. That the lease was first held by her mother before it was transferred to her sister, Aruna Devi. Her mother had promised her a life estate on the property before her death.

27. The second is that the transfer to her brother was obtained fraudulently and that this was reported to the police at Labasa Police Station and according to the defendant the police are still investigating. It is unclear from the parties as to when this complaint was made or how long after the transfer to the plaintiff on the 11 March 2014. In other words the allegation is that defendant's sister did not sell the land to the plaintiff but was taken from her through trickery.

28. In respect of the first tri-able issue, that is, that the defendant had a life estate on the property given to her by her mother, the only problem she has is that her mother's right to the property no longer exists on the issuance of a new lease to her sister. Thereforeher mother could not grant the defendant a life estate on a property she does not have. The defendant's sister is in a similar position as her late mother, once she sold the lease, the life estate given is extinguished. The only way life estate survives in this instance is if the property is held under a family trust or is part of an estate and this does not appear to be the case.

29. The second issue was that the transfer was obtained fraudulently, in other words the transfer was obtained by deceit or trickery. In my view the defendant would have a good cause if the fraudulent act was committed against her to enable the transfer of the lease to her brother. The affidavit in opposition states that the fraudulent act was against her sister and her sister would have a good cause to remain if she was being evicted, but that is not the case.

30. It may or could help the defendant's cause if her sister swore an affidavit to support the fact that the transfer was fraudulently obtained. The absence of this supporting affidavit makes the claim for fraud a mere hearsay. It is noted that the property was initially held within the family and that her mother had the old lease before the new one was issued for a further thirty (30) years, but the property was not held as part of the family's estate. In any event it appeared that the term of the lease had expired before the transfer to Arun Devi. The Court is not satisfied that fraud as alleged could give rise to a cause enabling the defendant to remain on the property. It is however, sad, that such an action between families should be dealt with in this way, and may have a poignant effect on the parties but the law will, at the end, prevail.

Conclusion

31. The Court is of the view that the defendant has not provided sufficient tangible evidence giving rise or cause for her to remain on the premises. Further there are no complicated issues to be determined which requires oral evidence and that the summary action section 169 of the Land Transfer Act is sufficient. For the above reasons I make the following orders:-

(1) The defendant is given two months to vacate the portion of land known as Lot 16 on Plan No: M 1629, Vunivutu Subdivision as described in Native Lease No: 30031;

(2) That given the circumstances of this matter I make no order ass to costs.

Master H Robinson
High Court, LABASA

1 May 2015