Chetty v Laxmi [2015] FJHC 658; HBC89.2015 (9 September 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 89 of 2015

IN THE MATTER
of an application for vacant possession of land under Section 169 of the Land Transfer Act

BETWEEN :

DHAN PAL CHETTY
aka DHAN PAL CHATTY and RUKMANI of 7 Cranbrook, 2168, New South Wales, Australia.
PLAINTIFFS

AND :

SANDHIYA LAXMI aka SANDHYA SHIWA LACHMI
of Lot 15 Herefore Lane, Kermode Road, Lautoka
DEFENDANT

(Ms) Adi QisaVokanavanua for the Plaintiffs
Mr. Sivanesh Wasu Pillay for the defendant

Date of Hearing: - 25th August 2015
Date of Ruling : - 09th September 2015

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Plaintiffs Originating Summons dated 08th June 2015, made pursuant to Section 169 of the Land Transfer Act for an order for vacant possession against the Defendant.

(2) The Defendant is summoned to appear before the Court to show cause why she should not give up vacant possession of the Plaintiffs property comprised in Housing Authority Lease No- 311933, being lot 15 DP 6226.

(3) The application for eviction is supported by an affidavit sworn by Rukmani (one of the Plaintiffs) on 04th June 2015.

(4) The application for eviction is strongly opposed by the Defendant. The Defendant supported her opposition by an affidavit sworn by her on 18thAugust 2015 followed by an affidavit in reply thereto.

(5) The Plaintiffs and the Defendant were heard on the Originating Summons. They made oral submissions to Court. In addition to oral submissions, the Plaintiffs filed a careful and comprehensive written submission for which I am most grateful

(B) THE LAW

(1) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.

Section 169 states;

"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) ...

Section 170 states;

"The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons."

Section 171 states;

"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.

Section 172 states;

"If the 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, mortgage or lessor or he may make any order and impose any terms he may think fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

[Emphasis provided]

(2) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively 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."

It is for the defendant to 'show cause.'

(3) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) 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."

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

"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."

(C) FACTUAL BACKGROUND AND ANALYSIS

(1) What are the facts here? It is necessary to approach the case through its pleadings/affidavits, bearing all those legal principles in my mind.

(2) To give the whole picture of the action, I can do no better than set out hereunder, the main averments/assertions of the pleadings/affidavits.

(3) The Plaintiff-Rukmani [one of the Plaintiffs] in her affidavit in support deposed inter alia;

(1.) THAT I am the lawful wife of DHAN PAL CHETTY aka DHAN PAL CHATTY and I am and duly authorised by my husband to swear this Affidavit on his behalf in this action herein.

(2) THAT we are the registered properties of Housing Authority Lease No. 311933 being Lot 15 DP 6226. A copy of the said lease is annexed herein and marked as Annexure "NPS1" (hereinafter referred to as the said property).

(3) THAT the Defendant is our son's former wife, though they have been separated and divorced, she refused to vacate the premises.

(4) THAT we caused our Solicitors to give the Defendant one month's notice to vacate the said property on the 4th day of December 2013. A copy of the said notice to the defendant is annexed hereto and marked as Annexure "NPS2".

(5) THAT to-date the defendant has failed, refused and/or neglected to vacate the said property despite several requests from us to do so.

(6) THAT the Defendant is unlawfully occupying the said property.

(7) THAT I am 73 years old whilst my husband is 75 years old and we are both are into our old age and retired. We intend to move back into our property and enjoy our retirement in Fiji thus we want the Defendant to vacate so we can occupy the property.

(4.) The Defendant for her part in seeking to show cause against the Summons, filed an affidavit in opposition which is substantially as follows;

(1) I do not deny that Rukmani is Dhan Pal Chetty's lawful wife and my in laws however I reserve the right to raise a legal objection on the issue of Dhan Pal Chetty's authority for Rukmani to depose the Plaintiff's Affidavit in this action.

(2) I do not deny paragraph 2 of the Plaintiff's Affidavit however I say that the Plaintiffs son and my husband Mr. Vijay Kumar Chattiar has disposed off his interest in House Authority Lease No. 311933 ("Property") whilst I had an application for distribution of property under the Family Law Act in the Magistrate Court at Lautoka- case number 13/LTK/0211- and the said disposal was designed to defeat my interest in the Property.

(3) Annexed and marked:

1. "A" is a certified true copy of the Title of the property dated 30th July 2015;
2. "B" is a certified true copy of Transfer No. 441631;
3. "C" is a certified true copy of Transfer No. 725072;
4. "D" is a certified true copy of Transfer No. 783789.
   

(4) The documents annexed and marked A, B, C and D show that:

1. On 6th May 1998 the 1st named Plaintiff purchased the Property for $15,000.00; and
   
2. On 23rd October 2009 the 1st named Plaintiff sold half interest in the property to my husband Mr. Vijay Kumar Chattiar for $3,000.00. During this period I resided on the Property with my husband and therefore I am entitled to a share of the Property upon separation and an application to this effect is filed in the Family Division of the Magistrates Court in Lautoka; and
   
3. On 2nd August 2013 my husband Mr. Vijay Kumar Chattiar gifted his share in the Property to his mother the 2nd named Plaintiff. During this period my application in the magistrates Court was filed and the said gift is designed to defeat my interest in the Property.
   

(5) I admit paragraph 3 of the Plaintiffs Affidavit and I further say that I am 'entitled to an interest in the Property virtue of the Family Law Act.

(6) I further refer to the fact that whilst my husband and I lived together he entered into a Memorandum of Understanding with his father the 1st named Plaintiff to transfer the remaining 1 undivided half share of the Property to my husband. Annexed and marked "E" is a copy of the said Memorandum dated 26th November 2010.

(7) I further refer to annexure E and paragraph 8 therein where the 1st named Plaintiff and my husband agreed as follows:

THE Purchaser shall allow the Vendor and his wife [meaning me] to stay on the premises as long as they may wish without any hesitation.

(8) I admit paragraph 4 of the Plaintiffs Affidavit however for the reasons stated in paragraphs 4 to 10 herein I say that I have a legal and equitable interest in the property therefore I have a right to remain on the Property.

(9) I admit paragraph 5 of the Plaintiffs Affidavit however for the reasons stated in paragraphs 4 to 10 herein I say that I have a legal and equitable interest in the Property therefore I have a right to remain on the Property.

(10) I deny paragraph 6 of the Plaintiffs Affidavit and say that for the reasons stated in paragraphs 4 to 10 herein I say that I have a legal and equitable interest in the Property therefore I have no right to remain on the property.

(11) Paragraph 7 of the Plaintiffs Affidavit is a lie. The Plaintiffs have resided in Australia for quite some time and have health issues requiring medical attention in Australia.

(12) The Plaintiff's will not get specialist medical assistance in Fiji and I say that paragraph 7 is a self-serving statement that is incorrect and a lie.

(13) I further say that the plaintiffs can reside in my husband's house on the Property which is less than 1 meter from my house without any interference from my daughter or me.

(14) I further refer to annexure E and paragraph 4 therein where the 1stnamed Plaintiff and my husband agreed as follows:

THE Vendor has a citizenship of Australia and residing in Australia for quire some time.

(15) I further say that the Property is my principle place of residence and I have lived there since my marriage. My husband has since moved out of initial residence and has built a concrete structure next to our initial residence.

(16) I do not have any place to go therefore I have applied to claim a share in the Property in the Family Division of the Magistrates Court and the said application remains pending. Case number 13/LTK/0211 is relevant.

(17) Annexed and marked:

1. "F" is the front elevation of my house on the Property;
2. "G" is the side elevation of my house on the Property which also has the side of my husband's house;
3. "H" is a rear elevation of my house on the Property which shows how close my husband has built his new house;
4. "I" is a side elevation of my husband's house on the Property.
   

(18) I dispute paragraph 8 of the Plaintiffs Affidavit and say that the Order's prayed therein are premature as I have a legal and/or equitable interest in the Property.

(19) I therefore pray that the Orders prayed for the Summons be dismissed with costs awarded to me on an indemnity basis and/or on the higher end of the scale.

(5) The Plaintiff Dhan Pal Chetty [one of the Plaintiffs] filed an affidavit in rebuttal deposing inter alia;

(1) THAT I am the 1st named Plaintiff and the registered proprietors of Housing Authority Lease No. 311933 being Lot 15 DP 6226 together with my wife. RUKMANI who is the 2nd named Plaintiff.

(2) THAT I have read the Affidavit of SandhiyaLaxmi sworn on the 18th day of August 2015 and filed on the same date (hereinafter called "the said Affidavit").

(3) THAT as to paragraph 4 of the said Affidavit, I had authorised my wife who is also the other registered proprietor to swear the Eviction affidavit on my behalf also.

(4) THAT as to paragraph 5 and 6 of the said Affidavit, I say that my son, Vijay Kumar Chattiar (hereinafter referred to as Vijay) is no longer legally married to the Defendant. Their Divorce was finalised by the LautokaMagistrates Court on the 8thMay, 2015. I further say that:

1. In 2009, I asked my son Vijay to do improvements on the said property since he was occupying it instead of paying rent. It was an oral agreement between father and son that Vijay will carry out improvement within a time frame.
   
2. Since my son did not have the financial capacity to do the improvements he tried to obtain a loan from the bank. The bank will only grant loan if Title is under his name, therefore I transferred my half share of the said property to Vijay, so enable him to obtain loan to finance the improvements sometimes on 1st October 2009. The transfer was specifically for the loan purpose only and not to gift Vijay the shares as full and final.
   

100. After the Transfer were effected to Vijay, he failed to fulfil his part of the agreement with me. He did not obtain loan and did not carry out the improvements on the property. Due to which, I told Vijay to transfer his shares of the said property to my wife.
     

4. Vijay has been living free on the said property and not at any time my wife and I have any intention of gifting him the house even after he married in 1994. Even after his marriage, the Defendant and all our family members were well aware that my wife and I have plans to move back to Fiji and enjoy retirement at our own property.
   

(5) THAT as per paragraph 7 of the said Affidavit, I admit that Ibrought the property together with my wife. My son, Vijay did not contribute to the purchase price at all, he was still with Defendant back then and were renting at Rifle range. Defendant only came onto the property after my wife and I had made improvements on the said property building a 3 bedroom concrete home.

(6) THAT as to paragraph 7 of the Affidavit, I repeat paragraph 4 above. Further, I have been advised by Vijay, the Defendant filed for Property Application on 12th December 2013 seeking Orders on the Property. However, no interim Orders were granted as the property is not registered under Vijay's name. The Defendant is taking advantage of that agreement between Vijay and I to claim for her shares of matrimonial property.

(7) THAT as to paragraph 8 of the said Affidavit, I say that Defendant is only entitles to what Vijay owns and not what my wife and I legally own and have worked hard for our past marriage years. The said property does not belong to Vijay and we have no intention of gifting it to Vijay even after our death.

(8) THAT as to paragraph 9 of the said Affidavit, I say that the Memorandum of Agreement does not concern the Defendant at all. It was between my son Vijay and I. As we already had an oral agreement in 2009 the reason of transferring the half share of property to him, because he failed to keep his side of the agreement as set out in paragraph 4, he had to return to my wife and I what is rightfully and legally ours. Vijay has no issues with this memorandum of Agreement because he knows he failed to comply with we initially agreed upon.

(9) THAT as to paragraph 10 of the said Affidavit, I say that the Defendant is no longer married to my son Vijay, she is now the ex-wife.

(10) THAT as to paragraph 11 to 13 of the said Affidavit, I dispute and deny that Defendant has legal and equitable rights on the said property as she has not contributed financially to the proeprty. She is merely an occupant tot he property.

(11) THAT as to paragraph 14 and 15 of the said Affidavit, I say that even at our old age, my wife and I still knows our exact age and date of birth, which is clearly printed on our passport and Birth Certificate. How can we lie about our age? Our medical conditions and seeing a specialist is not her concern. We both admit that we have been living in Australia during our prime working eyars. Now we are both on our retirement age and wants to return back to our home and enjoy the rest of living years without Defendant's interference.

(12) THAT I have known the Defendant since she married my son Vijay. She is always creating fights with us and visitors, embarrasing my son during family gathering and does not take good care of visitors onto our home.

(13) THAT as to paragraph 16 to 17 of the said Affidavit, I repeat paragraph 8 above.

(14) THAT as to 18 and 19 of the said property, I have been advised that Defendant is working thus can afford to look places to rent. My wife as I are serious about moving to the said property and does not want only interference from her or have anything to do with her on our property.

(15) THAT as for paragraph 20 of the said Affidavit, the Defendant is occupying the lean-to home, which was not an approved plan by the Lautoka City Council. Attached marked "DPC1" is a copy of the revisited Site Plan of the said Property. The Lautoka City Council had clearly informed me to demolished the lean-to home that Defendant is occupying.

(16) THAT as to paragraph 21 and 22 of the said Affidavit, I strongly deny and dispute that the Defendant has legal and or requitable rights on the said property and seek that her Affidavit be dismissed with costs.

(6) This is an application brought under Section 169 of the Land Transfer Act, [Cap 131]. Under section 169, certain persons may summon a person in possession of land before a judge in chambers to show cause why that person should not be ordered to surrender possession of the land to the Claimant.

For the sake of completeness, section 169 of the Land Transfer Act, is reproduced below;

169. 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.

I ask myself, under which limb of section 169 is the application being made?

(7.) Reference is made to paragraph (02) of the affidavit in support of the Originating Summons.

THATwe are the registered proprietors of Housing Authority Lease No. 311933 being Lot 15 DP 6226. A copy of the said lease is annexed herein and marked as Annexure "NPS1" (hereinafter referred to as the said property).

Section 169 (a) of the Land Transfer Act, Cap 131, requires the Plaintiff to be the last registered proprietor of the land.

The term "proprietor" is defined in the Land Transfer Act as "the registered proprietor of land, or of any estate or interest therein".

The term "registered" is defined in the Interpretation Act, Cap 7, as "registered used with reference to a document or the title to any immovable property means registered under the provisions of any written law for the time being applicable to the registration of such document or title"

(8.) According to the memorial of Housing Authority Lease No:- 311933, the Plaintiffs are the lessees of the subject land. There is no dispute between the parties as to the"locus standi"of the Plaintiffs. The Housing Authority Lease is registered with the Registrar of Titles. It is manifest, therefore, the Plaintiffs hold a registered lease and could be characterised as the last registered proprietor.

On the question of whether a lessee can bring an application under Section 169 of the Land Transfer Act, if any authority is required, I need only refer to the sentiments expressed by Master Robinson in "Michael Nair v Sangeeta Devi", Civil Action No: 2/12, FJHC, decided on 06.02.2013. The learned Master held;

"The first question then is under which ambit of section 169 is the application being made? The application could not be made under the second or third limb of the section since the applicant is the lessee and not the lessor as is required under these provisions. But is the applicant a registered proprietor? A proprietor under the Land Transfer Act means the registered proprietor of any land, or of an estate or interest therein". The registration of the lease under a statutory authority, the iTLTB Act Cap 134, creates a legal interest on the land making the applicant the registered proprietor of the land for the purposes of the Land Transfer Act. He can therefore make an application under section 169 of the Land Transfer Act".

The same rule was again applied by the learned Master in "Nasarawaqa Co-operative Limited v Hari Chand", Civil Action No: HBC 18 of 2013, decided on 25.04.2014. The learned Master held;

"It is clear that the iTLTB as the Plaintiff's lessor can take an action under section 169 to eject the Plaintiff. This is provided for under paragraphs [b] &[c]. For the lessor to be able to eject the tenant or the lessee it must have a registered lease. It is not in dispute that the Plaintiff holds a registered lease, the lease is an "Instrument of Tenancy" issued by the iTLTB under the Agricultural Landlord and Tenancy Act. It is for all intents and purposes a native lease and was registered on the 29 November 2012 and registered in book 2012 folio 11824. It is registered under the register of deeds. There is nothing in section 169 that prevents a lessor ejecting a lessee from the land as long as the lease is registered. How will the lessee then eject a trespasser if the lessor in the same lease can use section 169? 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 a proprietor as long as he/she is 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 instrument of tenancy and therefore fits the above definition and can bring the action under section 169."

A somewhat similar situation as this was considered by His Lordship Justice K.A. Stuart in Housing Authority v Muniappa1977, FJSC. His Lordship held that the Plaintiff Housing Authority holds a registered lease therefore it could be characterised as the last registered proprietor.

In Habib v Prasad [2012] FJHC 22, Hon. Madam Justice AngalaWati said;

"The word registered is making reference to registration of land and not the nature of land. If the land is registered either in the Registrar of Titles Office or in the Deeds Office, it is still registered land. This land has been registered on 4th March, 2004 and is registered at the Registrar of Deeds Office, it is still registered land. The registration is sufficient to meet the definition of registered in the Interpretation Act Cap 7:-

"Registered" used with reference to a document or the title to any immoveable property means registered under the provision of any written law for the time being applicable to the registration of such document or title".

Being guided by those words, I am satisfied that the Plaintiffs are the last registered proprietor of the land comprised in Housing Authority Lease No:- 311933. The application for eviction is more specifically brought under Section 169 (a) of the Land Transfer Act.

(9) Before determining against the Defendant, the real issue and the only issue which this Court has to consider at the outset is whether the Plaintiffs have satisfied the threshold criteria in Section 170 of the Land Transfer Act.

Pursuant to Section 170 of the Land Transfer Act;

(1) the Summons shall contain a "description of the Land"

AND

(2) shall require the person summoned to appear in the court on a day not earlier than "sixteen days" after the service of Summons.

The interval of not less than 16 days is allowed to give reasonable time for deliberations and to prevent undue haste or surprise.

I ask myself, are these requirements sufficiently complied with by the Plaintiffs?

The Originating Summons filed by the Plaintiffs does contain a description of the subject land. The subject land is sufficiently described. For the sake of completeness, the Originating Summons is reproduced below;

SUMMONS

LET ALL PARTIES concerned attend before a Master in chambers at the High Court, Lautoka on the 09th day of July, 2015 at the hour of 8.30 o'clock in the forenoon on the hearing of an Application by the above named Plaintiffs FOR AN ORDER that the Defendant, SANDHIYA LAXMI aka SANDHYA SHIWA LACHMI of Lot 15 Herefore Lane, Kermode Road, Lautoka, Machinist, do show cause as to why she should not give up immediate vacant possession to the Plaintiffs of the Plaintiffs Housing Authority Lease No. 311933 being Lot 15 DP 6226 on the grounds set forth in the Affidavit of RUKMANI duly sworn and filed herein AND that the costs of and incidental to this application to be paid by the Defendant to the Plaintiff.

This Summons will be attended by Counsel for the Plaintiff.

DATED this 08th day of June, 2015

(Emphasis Added)

In light of the above, I have no doubt personally and I am clearly of opinion that the first mandatory requirement of section 170 of the Land Transport Act, has been compiled with.

(10) Now comes a most relevant and, as I think, crucial second mandatory requirement of section 170 of the land Transport Act.

The Originating Summons was returnable on 09th July 2015. According to the Affidavit of Service filed on 09th July 2015 by the Plaintiffs, the Originating Summons was served on the Defendant on 30th June 2015.

It is, of course, undeniable that the Defendant had been summoned to appear in the Court on a day earlier than "sixteen days" after the Service of Summons.

In the result, I am constrained to hold that the Plaintiffs have not satisfied the second threshold criteria in Section 170 of the Land Transfer Act.

At this point, I cannot resist in saying that no argument was addressed to me by the Counsel for the Defendant on the second threshold criteria in Section 170 of the Land Transfer Act. Moreover, the Defendant did not make any reference to the second threshold criteria in her Affidavit in Opposition.

But nevertheless, I desire to emphasize that the court is bound to look into the "prerequisites" before the burden shifts to the Defendant.

(D) CONCLUSION

For the reason which I have endeavoured to explain, I have no doubt and I am clearly of the opinion that the second mandatory requirement of Section 170 of the Land Transfer Act and the legal consequences that flow from non compliance defeat the Plaintiffs claim for vacant possession.

Therefore, the Defendant needs not show any evidence of a cause to remain on the property since this matter can go no further. I cannot see any other just way to finish the matter than to follow the law.

Accordingly, there is no alternate but to dismiss the Originating Summons.

(E) FINAL ORDERS

(1) Originating Summons dismissed.

(2) The Plaintiffs are ordered to pay costs of $1000.00 (summarily assessed) to the Defendant which is to be paid within 14 days from the date hereof.

.......................................
Jude Nanayakkara
Acting Master of the High Court

At Lautoka
09th September 2015