Debalevu v Musuvanua [2015] FJHC 708; HBC75.2014 (30 September 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 75 of 2014

IN THE MATTER
of an application under section 169 of the Land Transfer Act, Cap 131 for an order for immediate vacant possession.

BETWEEN:

SEVULONI DEBALEVU
of Dreketilailai, Labasa.
PLAINTIFF

AND:

SAMUELA MUSUVANUA aka SIPI, RUPENI ROKODULU aka TUBUNA and MS. BANUVE, all of Dreketilailai Settlement, Dreketilailai, Labasa.
DEFENDANT

COUNSEL: Mr. A. Vakaloloma for the Plaintiff
Mr. K. Ratule for the Defendant

BEFORE: Acting Master S. F. Bull

Hearing: 02 July 2015
Judgment: 30 September 2015

JUDGMENT

Introduction

1. By a summons filed on 23 December 2014, the Plaintiff seeks the ejectment of the three Defendants from the land they presently occupy at Dreketilailai Settlement, Dreketilailai, Labasa.
   
2. The application is opposed by all the Defendants who filed in opposition, the affidavits of Samuela Musuvanua, the first Defendant, and one Sakiusa Saukalou.
   

The application

3. The Plaintiff, in support of the application deposes that he is a senior member of the Mataqali Mataniikadroka (the mataqali), of Yavusa Nakula of Dreketilailai, Labasa, the registered owner and proprietor of the said property. A copy of the membership of the said mataqali is annexed. Following a meeting of the mataqali,it was decided that the property on the mataqali land be returned to the mataqali, for the purposes of having the same repaired and renovated for mataqali members to use, and for funds to be generated for the mataqali. A notice to quit was served on the Defendants on 29 September 2014 but in defiance of the said notice, they continue in occupation. A copy of this notice is annexed.
   
4. In a supplementary affidavit filed with the consent of the Defendant and with leave of the Court, the Plaintiff adds that he had been granted lease of the said land, the total area of which is 120 acres 2 rood 12 perches, under NLTB Reference No. 4/9/9417. He annexes a copy of the provisional notice of approval of lease. Also annexed is a copy of the notice to quit allegedly served on the Defendants.
   
5. On 22 November 1999, he and one Rupeni Musuvanua had applied for a joint loan for the purpose of building two houses on his lease on Mataqali Mataniikadroka land at Dreketilailai. A copy of an offer letter from the Fiji Development Bank to the Plaintiff and Rupeni Musuvanua for a loan of $15,000 is annexed. The loan was for the construction of the two houses on his lease at Dreketilailai, currently occupied by the Defendants. He has made numerous requests to the Defendants for them to vacate, to no avail.
   
6. In a reply affidavit to the Defendant’s affidavit showing cause, the Plaintiff admits that he and the Defendants belong to the same mataqali. The houses were built by him, the Plaintiff, on funds from the Fiji Development Bank.
   

The Defendants’ reply

7. In opposition to the application, the first named Defendant Samuela Musuvanua deposes on behalf of all the Defendants that they belong to the same mataqali as the Plaintiff, the latter being registered therein through the Plaintiff’s mother. The Plaintiff is neither the head of the mataqali, nor does he have control of its affairs. The land in question is reserved for the mataqali. The houses occupied by the Defendants were not built by the mataqali and were built by his late uncle, Rupeni Rokodulu. Samuela Musuvanua claims ownership of these houses.
   
8. There was no mataqali meeting on 10 May 2014 as alleged by the Plaintiff in his affidavit in support, and annexure B contains the signatures of the Plaintiff and his children only. The head of the clan, (the turaga ni mataqali), Sakiusa Serukalou was not present at the alleged meeting. There are more than 60 mataqali members above the age of 18 years registered in the Vola ni Kawa Bula (the VKB), and there was no proper resolution of the mataqali for the institution of these proceedings to remove the Defendants from the land.
   
9. The land in question is neither leased nor registered and since the Plaintiff has not annexed a title showing his name or even that of the mataqali as the last registered proprietor, the application must be struck out.
   
10. Samuela Musuvanua also deposes that he and the other two Defendants reside on two house blocks on mataqali land. The house blocks had belonged to his late uncle Rupeni Rokodulu who, sometime in 1998, had been engaged in a farming venture with the Plaintiff. Subsequent to Rupeni Rokodulu’s death, letters of administration (with will annexed) was taken out, such that all of the his real and personal property now “belong” to Peni Vakau (Peni Rokodulu’s son) and his wife. It was Peni Vakau and his wife who thereafter gave the houses and land to the Defendants to occupy. Annexed is a copy of the Letters of Administration (with the Will annexed).
    
11. In a supplementary affidavit in opposition, the Defendant swears that the annexure SD 1 in the Plaintiff’s supplementary affidavit was a provisional approval to lease given to the Plaintiff by the TLTB. The notice was from 1 January 1979 to 31 December 2008 and is now therefore expired. The Plaintiff is therefore no longer a tenant under the said approval notice. In any event, the approval notice shows that it was intended for agricultural purposes and not for residential use. Further, the Plaintiff has not shown that he is still the registered proprietor of the land.
    
12. The Plaintiff and the late Rupeni Musuvanua had their own leases, with Rupeni Musuvanua tending both as the Plaintiff was residing in Suva at the time. The two houses belong to Rupeni Musuvanua and his estate which is now under the trusteeship of Peni Vakau and Vani Lalo.
    
13. As to the notice to quit, the annexure shows that it is addressed to Peni Vakau and Vani Lalo and that he was never served with it.
    
14. Sakiusa Saukalou was, at the time his affidavit was sworn, the head of the clan (the turaga ni mataqali) Mataniikadroka. The land the subject of this dispute is reserved land belonging to the mataqali, with the title thereof entrusted to the iTaukei Land Trust Board (the TLTB). The Plaintiff is not the head of the mataqali though he is registered in the VKB through his mother. Sakiusa Saukalou says he was neither aware of nor consulted about the mataqali meeting referred to in the Plaintiff’s affidavit and that the signatures in Annexure B of the Plaintiff’s affidavit are those of only the Plaintiff and his children. Mr. Saukalou further denies that the houses ever belonged to the mataqali. The Plaintiff is not the last registered proprietor of the reserved mataqali land and has no rights over the land in dispute.
    

The law

15. Under section 169 (a) of the Land Transfer Act (the LTA), the Plaintiff is required to prove that he is the last registered proprietor.
    
16. Thereafter, the Defendants bear the onus of showing cause as to why vacant possession should not be granted. Pursuant to section 172 of the LTA, they need to satisfy the Court that they have a right to possession. This they must do on affidavit evidence. (Muthusami v Nausori Town Council F.C.A. 23/86).
    
17. There is no need to prove conclusively a right to possession and it is sufficient if the Defendants prove that there is some tangible evidence establishing the existence of a right. (Morris Hedstrom Ltd v Liaquat Ali(Action No. 153 of 1987).
    
18. The Plaintiff first has to prove locus to bring this application. If I find in the negative, that is the end of the matter, without the need for the Defendant to show cause.
    
19. It is not clear from the wording of paragraph 4 of the Plaintiff’s affidavit whether he deposes that he is the registered owner and proprietor of “this property known as Dreketilailai”, or whether the mataqali Mataniikadroka is. However, he says in paragraph 2 of his Supplementary Affidavit in support that the Defendants are occupying his property at Dreketilailai. He has annexed to his supplementary affidavit in support a copy of the provisional notice of approval of an agricultural lease in his name, over a piece of land known as Matanikadroka in Labasa, belonging to the mataqali and measuring 120 acres 2 roods 12 perches for 30 years, from 1/1/79. This being the case, the period stated in the provisional approval notice would have expired on or around 31/12/2008. This application for ejectment was filed on 23 December 2014, close to 6 years after the Plaintiff’s lease had expired.
    
20. For the Defendants, it is submitted that the Plaintiff is not the last registered proprietor since he has no title registered under the LTA. Counsel submits that only titles registered under the LTA have recourse to section 169 of the LTA.
    
21. Reliance is placed on Sharma v Tabuela [2004] FJHC 183; HBC0026.2004 (15 March 2004) where the Court stated:
    

The registered proprietor must be someone whose interest on the land is registered with the Registrar of Titles under the provisions of Land Transfer Act. A person cannot be registered as a proprietor of a piece of land under the provisions of the Land Transfer Act unless the land has been surveyed.

Analysis

22. Section 5 (c) of the LTA sets out lands that are subject to the provisions of that Act. Amongst these are "...all leases of native land granted pursuant to the provisions of the Native Land Trust Act" (now iTaukei Land Trust Act (the iTLTA)). Clearly, the land in question is native land, beneficially owned by the mataqali Mataniikadroka, and held in trust by the iTaukei Land Trust Board (the iTLTB) (section 4 iTLTA).
    
23. Under section 10 (c) of the iTaukei Land Trust Act (the iTLTA), a lease made under the provisions of the iTLTA and registered
    

...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.

24. In Habid v Prasad [2012] FJHC 22; HBC24.2010 (17 January 2012), Wati J stated that the word "registered" as defined in the Interpretation Act, Cap 7, refers to the ...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.

25. Section 169 (a) of the LTA requires the person bringing a summons for ejectment to be "the last registered proprietor of the land" in question. What is of importance therefore, is registration.
    
26. In light of the clear provisions of section 5 (c) of the LTA; section 10 (2) of the iTLTA); and the Court's finding in Habid (supra), I am led to disagree with Defendant counsel's submissions that only titles registered under the LTA have recourse to section 169 of that Act.Habid (supra) makes it clear that whether the land is registered in the Registrar of Titles Office or the Deeds Office, is of no moment. The land is still registered in terms of section 2 of the Interpretation Act.
    
27. The position in respect of registration for the purposes of s. 169 LTA as stated by the Court in Habid has been followed in subsequent decisions of this Court. (See Nasarawaqa Co-operative Ltd v Chand [2014] 291; HBC18.2013 (25 April 2014; and on appeal, Chand v Nasarawaqa Co-operative Ltd [2015] FJHC 90; HBC18.2013 (17 February 2015); Qera v Munaf [2014] FJHC 276; 276; HBC37.2010 (24 April 2014))
    
28. The Court's position in Tabuela (supra), which the Defendant dant has referred to in its submissions, was discussed in Chand v Nasarawaqa Co-operative Ltd [2015] FJHC 90; HBC18.2013 (17 February 2015), with the Court stating at [56] – [58] as follows:
    

56. ... In that case Hon. Justice Jiten Singh was not faced with this question of whether a lease issued under the provisions of the ITLTA and registered under the ALTA can be dealt as a lease issued under the LTA.

57. If His Lordship was faced with a similar issue and all the provisions of the various Acts were brought to his attention, I find that his Lordship could not have deviated from the findings that the Master has arrived at.

29. The Master's findings referred to above were in respect of section 5 (c) of the LTA and section 10 (2) of the iTLTA, pointing out that land registered under the provisions of iTLTA or other written law, can be dealt with under section 169 of the LTA.
    
30. I do, however, find there to be force in the Defendant's submissions that the Plaintiff does not have a registered title. There is nothing before me to say that the Plaintiff had a registered lease at all. The provisional notice of approval is not a registered instrument.
    
31. For a native lease under the iTLTA to be subject to the provisions of the LTA, section 10 (c) of the iTLTA is clear that it must first be registered. This, the Plaintiff has not been able to prove.
    
32. Secondly, the provisional approval notice upon which the Plaintiff relies would have expired somewhere around 31 December 2008, close to 6 six years before he filed this application on 23 December 2014. His counsel argues that the lease has not been cancelled, but neither does he provide any evidence that it has since been renewed, has been registered, and remains current.
    
33. In light of all of the above, I find that the Plaintiff has failed to prove that he has locus under section 169 of the LTA to bring this application for the ejectment of the Defendants. I dismiss the application accordingly.
    
34. Final Orders:
    
    1. The application under s. 169 of the Land Transfer Act, for the ejectment of the Defendants is dismissed.
       
    2. Parties to bear their own costs.
       

S.F. Bull
Acting Master