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Kumar v Prasad [2015] FJHC 522; HBC152.2014 (16 July 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA FIJI


CIVIL CASE NO.: HBC 152 OF 2014


[On an appeal from a Judgment given by the Learned Master of the High Court of Fiji at Lautoka on the 15th of April 2014in Civil Action No. HBC No.: 152 of 2013]


BETWEEN:


RAJ KUMAR
of Balevuto, Ba, but currently residing in
Toronto, Canada.
APPELLANT


AND:


RAJEN PRASAD and/or THE OCCUPIERS OF NATIVE
LEASE NO. 20576 of Balevuto, Ba.
RESPONDENT


Appearances: Mr A. Dayal for the Appellant
The Respondent Inperson


JUDGMENT


Introduction


  1. This is an appeal from the Masters' Decision dated 15th April, 2014 with regard to an application for summary eviction under Section 169 of the Land Transfer Act which was struck out and dismissed with costs in the sum of $300.00.
  2. The Notice of Appeal filed by the Appellant sets out the following grounds of Appeal:
    1. The Learned Master erred in law in relying on Clauss and another v Pir (1987) 2 All ER 752 to strike out the Affidavit filed on behalf of the Plaintiff in this matter when:-
      • (a) The case authority of Clauss and another v Pir (1987) 2 All ER was limited to Order 24 Rule 3 of the Supreme Court rules in England where Order 24 Rule 3 required an Affidavit list of documents to be made personally by the party named in the proceedings.
      • (b) There was no such compliance required for an application under Section 169 of the Land Transfer Act.
      • (c) That the English Court did not hold that generally a Power of Attorney cannot swear an Affidavit in Support of an Application commenced in the name of the Principal.
    2. The Learned Master erred in law in not considering Order 41 of High Court Rules where evidence can be given by an Affidavit where the matters concerned are within the knowledge of the deponent.
    3. The Learned Master erred in law and fact in striking out the entire Affidavit and not taking into account, which evidence was relevant and which was not in support of the application nor taking any steps to determine in any evidence was admissible.
    4. The Learned Master of the High Court erred in making the order for costs in the sum of $300.00.
    5. The Appellant may add further grounds of appeal upon receipt of the record.
  3. At the hearing of this matter the Appellants' Counsel made oral submissions and submitted written submissions as well. The Respondent who appeared In Person at the hearing filed his written submission on 21st April, 2015.

Analysis and Determination


  1. In his Judgment the Learned Master has only dealt with the issue of the validity of the supporting Affidavit and the Affidavit in Reply filed by the Plaintiff/Appellant in this matter. In paragraph 5 of his Judgment he states that the Defendant has admitted that the Native Lease belongs to the Plaintiff. Quoting Section 169(a) of the Land Transfer Act (LTA) the Learned Master has determined that the Plaintiff as last registered proprietor is entitled to initiate these proceeding against the Defendant to recover possession from the Defendant who is occupying part of the property. Referring to Section 170 and 170 of the LTA he states that the burden is on the Defendant to show cause and to prove a right to possession of the property.
  2. Subsequent to his analysis of the applicable provisions of the LTA as above the Learned Master raises the issue whether the Attorney had the power to swear an Affidavit on behalf of the Plaintiff. He has held that swearing of an Affidavit require skill, personal knowledge and discretion for its exercise and in this matter it is clear that the Attorney had no personal knowledge and discretion to swear an Affidavit on behalf of the Plaintiff according to what he has stated in paragraph 7 of the Affidavit in reply. He also states that the general power of Attorney granted to the Attorney in this case does not include the authority to swear an Affidavit on behalf of the principal, the Plaintiff. Accordingly, the Master has disregarded, dismissed and struck out the supporting Affidavit and subsequent Affidavit in Reply filed by the Attorney and dismissed the application for summary recovery of possession with the costs of $300.00 against the Plaintiff.
  3. In his Judgment the Learned Master has relied heavily on the Chancery Division decision of Clauss and another V Pir [1987] 2 All ER752.
  4. In Clauss V Pirit was held that the verification of documents by way of Affidavit could not be delegated to an agent as it was a personal duty which required personal knowledge. In the said case the Court was dealing with compliance of an Order for discovery by the Master and also with the Order 24 of the English Rules of the Supreme Court equivalent to Order 24 of the High Court Rules of Fiji.
  5. In my view the requirement under Order 24 is different from the evidence required in an application under Section 169 of the LTA.

Section 169 provides:


"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) ............

(c) ..................

(emphasis added)


  1. It is clear from the above provision of the LTA that an Applicant in a Section 169 application only needed to prove that he is the last registered proprietor of the land in question. In order to prove that the Applicant is the last registered proprietor, a search can be conducted with the Registrar of Titles who will then issue a certified true copy of the title showing the name of the last registered proprietor. Therefore, I am of the view that there is no need for the Power of Attorney holder of a last registered proprietor to have a personal knowledge of the Title to make an application under Section 169 of the LTA. In his Affidavit sworn on 29th August, 2013 the Attorney holder Anil Kumar has deposed that the Plaintiff is the registered proprietor of Native Lease No. 20576. True copy of the said lease is annexed to the said Affidavit marked "AK2". It is not evidence which is purely within the personal knowledge of the person applying, the Plaintiff, it is a matter of public record. As to who is the registered proprietor, the document speaks for itself.
  2. Furthermore clause 13 of the Power of Attorney marked "AK2" empowers the Attorney to commence, prosecute, enforce, defend, answer or oppose all actions and other legal proceedings on behalf of the Plaintiff who is the last registered proprietor. Therefore, I find that swearing an Affidavit to institute proceedings is within the powers granted to the Attorney by the Principal.
  3. I therefore agree with the argument of the Learned Counsel of the Appellant that the facts and circumstances of this case is fundamentally different from the situation in Clauss V Pir and the evidence required in this matter was not purely within the personal knowledge of the Plaintiff.
  4. The Appellant has proved that he is the last registered proprietor of the land by producing the Title certified by the Registrar of Titles. His registered proprietorship was not denied by the Respondent.
  5. Counsel for the Appellant has also submitted that Section 7 of the English Power of Attorney Act is different from Section 118 of the Land Transfer Act. Section 118 of the LTA says:

"The registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, may by power of Attorney in the prescribed form or such other form as may be approved by the Registrar, and either in general terms or specially, authorise and appoint any person on his behalf to execute transfers of, or other dealings with, such land, estate or interest, or to sign any consent or other document required under the provisions of this Act, or to make any application to the Registrar or to any Court or Judge in relation thereto". (The emphasis added)


  1. He submits that the English Power of Attorney Act does not go on to say that the Attorney can make an "application to ...............any Court of Judge" but under Section 118 of the LTA a Power of Attorney holder of the registered proprietor is empowered to make an applications to any Court or Judge. He contends that if a person is allowed to apply to Court through his Attorney, then naturally that person should be allowed to present evidence through his Attorney. If not the application will simply be dismissed for lack of evidence and Section 118 would be rendered ineffective.
  2. The Appellants' Counsels argument appears to be a valid argument and I therefore hold that in an application under Section 169 of the LTA a registered proprietor should be allowed to present evidence through his Attorney. However, this does not mean that the Attorney is allowed to give evidence on matters purely within the personal knowledge of his principle.
  3. In this matter the Attorney has adduced evidence on the proprietorship of the Plaintiff. In his ruling the Master has referred to paragraph 7 of the Attorneys' Affidavit in Reply in which the Attorney has deposed that he is not aware of the full details of the dealings made between the Plaintiff and Defendant, however that he is informed by the Plaintiff that he only allowed the Defendant to occupy the land if he works on his farm. The Master has then said that this clearly shows that the Attorney had no personal knowledge and discretion to swear an Affidavit on behalf of the Plaintiff. The Master has not considered the crux of the matter whether the legal proprietorship of the Plaintiff was established by the Affidavit in Support of the application and whether Defendant has shown cause as to why he should be permitted to remain on the property. He could have determined whether there were any paragraphs in the Affidavits which offended the rules of evidence and struck out such paragraphs without striking out and disregarding the evidence adduced on registered proprietorship.
  4. For the reasons set out above I hold that the learned Master erred in law in relying on Clauss V Pir to strike out the Affidavits filed on behalf of the Plaintiff in this matter. Having carefully considered the Affidavit evidence adduced by both parties, I hold that the application by the Plaintiff/Appellant under Section 169 proceeding is merited and he is entitled to immediate vacant possession of the land from the Defendant/Respondent. Defendant/Respondent has failed to show cause to remain on the land and also not adduced any evidence to prove that he had the consent of the Native Land Trust Board to remain on the land.

The Expiry of the Lease


  1. Apart from the matters raised in the grounds of appeal the Learned Counsel for the Appellant submitted to Court that the lease expired on 30th June, 2014 and that the Master's Judgment was pronounced prior to its' expiration. He also submits that Appellant has applied for its renewal of the lease and the expiration of the lease was not an issue before the lower court. He contends that the appeal ought to be determined on the issues raised and if necessary, it can be referred back for determination of the issue of expiry of the lease and other evidential matters. He argues that under Clause 19(vi) of the lease a party is allowed to remain on the lease once he has applied for a renewal.
  2. Clause 19(vi) of the lease States as follows:

Section 19:- Subject to the provisions of the Native Land (Leases and Licences) Regulations, any building erected by the lessee on the land hereby leased shall be removable by the lessee within three months after the expiration of the lease: provided that: -


(i) ........................................
(ii) .........................................
(iii) .........................................
(iv) .........................................
(v) .........................................

(vi) if the lessee applies for a renewal of this lease the provisions of this condition shall be deemed to cease to apply as from the date of the application of the lessee for a renewal of the lease, and thereafter the whole matter shall be dealt with under the provisions o0f the said Native Land (Lease and Licences)Regulations.
  1. I will now refer to Section 33 of the Native Land (Lease and License) Regulations Cap 134 Ed 1978regulation no. 12 which is as follows:

"Occupation pending decision on application for renewal


12. In the event of any lease, an application for the renewal or extension of which is made under the provisions of regulation 10, expiring while such application is being considered by the Board, then and in such case the lessee thereof shall have the right, as from the date of the expiration of the said lease, to use, occupy and enjoy the lands comprised therein as a tenant at will at such rent and on such terms and conditions as may be decided upon by the Board until the application may have been disposed of".


  1. Though these regulations were revised in 1985 there is no similar provision "on occupation pending decision on application for renewal" in the revised version of the regulations. Section 18(1) of the revised regulations which is in respect of "Renewal of Leases" exclude the applicability of the revised regulations to lands to which Agricultural Land and Tenant Act (ALTA) applies. Clause 21 and 22 of the Lease clearly states that the ALTA is applicable to the lease.
  2. In perusing the above mentioned Regulations and Clauses in the lease it is my view that the Plaintiff/Appellants possession of the land till the renewal of the lease does not make him an unlawful occupier even though it is not a relevant issue to be determined in this appeal.
  3. Having concluded that the Plaintiff/Appellant is entitled to an order to recover immediate possession of the land from the Defendant/Respondent I make the following orders:

Lal S. Abeygunaratne
[Judge]


At Lautoka
16 July, 2015

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