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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 79 of 2015
BETWEEN :
CHANDRA LOK of Royal Palm Road, Navutu, Lautoka, Retired Businessman.
PLAINTIFF
AND :
ALIPATE VUKI of Toko, Tavua, School Teacher.
DEFENDANT
Mr. Wasu Sivanesh Pillay for the Plaintiff
Mr. Niko Nawaikula for the Defendants
Date of Hearing : - 03rd September 2015
Date of Ruling : - 11th December 2015
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff's Originating Summons dated 26th May 2015, made pursuant to Section 169 of the Land Transfer Act, Cap 131, for an Order for vacant possession against the Defendant.
(2) The Defendant is summoned to appear before the Court to show cause why he should not give up vacant possession of the Plaintiff's property comprised in Lease No:- 44656, known as Lot 1 Plan No: 1700 "Toko" (part of) in the District of Tavua, containing an area of 25 acres, 2 rods, 08 perches.
(3) The application for eviction is supported by an Affidavit sworn by the Plaintiff on 22nd May 2015.
(4) The application for eviction is strongly resisted by the Defendant
(5) The Defendant filed an Affidavit in Opposition opposing the application for eviction followed by an Affidavit in Reply thereto.
(6) The Plaintiff and the Defendant were heard on the Originating Summons. They made oral submission to Court. In addition to oral submissions, they filed careful and comprehensive written submissions for which I am most grateful.
(B) THE FACTUAL BACKGROUND
(1) What are the circumstances that give rise to the present application?
(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 in his Affidavit in support deposes inter alia (so far as relevant)
Para 2. I am the registered proprietor and lessee of all that piece and
parcel of agricultural land known as Lot 1 on Plan No. 1700 "Toko" (part of) situated at Toko in the District of Tavua in the island of Viti Levu containing an area of 25 Acres 2 Roods 08 Perches and comprised in Lease Number 44656 (hereinafter referred to as "the said land"). Annexed hereto and marked with letter "A" is a copy of Lease Number 44656.
3. The said land was transferred to me by Mr Ballaiya and the Transfer was registered with Registrar of Titles Office on the 10th day of June 1994. The notation of the Transfer in my favour was done immediately on my copy of Lease Number 44656 as appears in Annexure as appears in Annexure "A"
4. Due to an inadvertence on the part of the Registrar of Titles, the notation of the Transfer in my favour was not noted on the original Lease Number 44656 retained at the Registrar of Titles Office.
5. On the 19th day of April, 2004 I instituted Action No. HBC 106 of 2004 against the Registrar of Titles in the High Court at Lautoka seeking an order requiring the Registrar of Titles to note the transfer in my favour in the original lease No. 44656 in the custody of the Registrar of Titles.
6. On the 28th day of May, 2004 a consent order was made by the high Court at Lautoka ordering the Registrar of Titles to note the transfer in my favour in the original Lease No. 44656 kept by him.
7. Annexed hereto and marked with letter "B" is a certified true copy of Consent Order of the High Court at Lautoka dated the 28th day of May, 2004. This is also shown on the Lease.
8. The abovenamed Defendant and his family are occupying part of the subject Land containing an area of approximately one eight acre of my Lease and continues to occupy the same despite my having given him notice to vacate.
9. The Defendant was served with a Notice to Vacate dated 22nd March 2014 but he and his family continue with the occupation of the subject property. Exhibited hereto and marked as Exhibit "C" is a copy of Notice to Vacate dated 22nd March 2014.
10. A response to the Notice to Vacate was received by my Solicitors on 2nd April 2014 by his Solicitors Vuataki Law. Exhibited hereto and marked as Exhibit "D" is a copy of the response of the Defendant's Solicitors.
11. Mr Ram Chandar is mentioned by Vuataki Law. He has no rights on my lease. I am the registered proprietor. He is my brother and has been in Canada for the last 30 years.
12. The Defendant is a nuisance and is interfering with my cultivation of the land.
13. Vuataki Law's letter also says that he has been on the land for 10 years and that he has been paying rent. As far as I know he has been there for some years and one Mr. Bali Ram had brought him on the land.
14. This is despite my objection and Mr. Bal Ram had sued my claiming rights against me on this property. The case went up to Supreme Court and I have won the case and annexed hereto and marked with letter "E"is the Supreme Court Order.
15. Vuataki Law has also mentioned my daughter Kanta. I only have one daughter and her name is Raksha. I do not know about his rental claim and I have not accepted him as being on the land. It is agricultural land as his lawyer himself mentions.
16. I have been trying to cultivate sugar cane but he has brought animals on the land and despite my objections they graze cattle and cause destruction. I estimate the cost of damage to be $3000.00.
17. No consent of Native Land Trust Board has been obtained for the Defendant's occupation of the said land and I have not signed any application for such consent.
18. I have also written to the Tavua Police about the Defendant and I need to have a watchman and/or labourer to occupy the same. Annexed hereto and marked with letter "F" is a copy of letter dated 31st May 2014.
19. However the Police have not acted and I am forced to bring this action for possession. He also caused damaged to the house. There is an overflow of sewage and I need to repair this and fix up the house and stop him from damaging my crop and property.
20. I would also like to occupy the same for part of the time as I can then supervise my cultivation of my Lease. I am seventy three years of age and the Defendant's actions have caused me substantial distress.
(4) The Defendant for his part in seeking to show cause against the Originating Summons, filed an Affidavit in Opposition, which is substantially as follows; (so far as relevant)
Para 5. THAT as for paragraph 2, I deny the facts stated herein and
say that the Plaintiff does not have a valid title to sub-lease No. 44656.
6. THAT I have made queries with iTaukei Land Trust Board to confirm if there was any consent to the transfer of Native Land sub-lease No. 44656 to the Plaintiff. I annex here marked "AV 1" is a true copy of TLTB letter dated 7th July 2015.
7. THAT transfer was never consented to by iTaukei Land Trust Board. I annex here marked "AV 2" a reply from iTaukei Land Trust Board denying consent of transfer of sub-lease No. 44656.
8. THAT the Plaintiff's title being sub-lease No. 44656 is derived from sub-lease No. 26573 and a condition that rent is to be paid to the Lessor, Munia Kona f/n Irasakona if not sub Lease 44656 shall cease and determined. I annexed here marked 'AV3' a true copy of self explanatory declaration of one Muniratnam son of Munia Kona (deceased) confirming that he did not receive any land rent for his father's estate.
9. THAT Muniratnam is the true son of the late Munia Kona who was born on his father's land in Toko on the 5th of April, 1948 and is the beneficiary of the Estate. I annexed here marked 'AV4' is the true copy of his birth certificate no. 805793 confirming his father's name and his place of birth.
10. THAT so far as I know that the Plaintiff has never paid any rent to Munia Kona and therefore Sub lease 44656 is a dead title.
11. THAT the sub-lease No. 44656 is a sub-lease of No. 26573. I annex here marked "AV 5" a copy of Lease No. 26573.
12. THAT lease No. 26573 is a sub-lease of NL 29/30. That I annexed here marked "AV 6"a copy of NL29 Folio 30.
13. THAT sub-lease No. 26573 carries a condition that if rent is not paid to Stuart Charles Solicitor, then the lease will terminate.
14. THAT so far I know there has been no payment at all by the owner of sub-lease No. 26573 to Stuart Charles Solicitor and I also know as a fact that Stuart Charles Solicitor does not exist anymore.
15. THAT I also known as a fact from iTaukei Land Trust Board that there is no record of a current owner of NL 29/30 nor that any has been paid to iTaukei Land Trust Board for that Land.
16. THAT as for paragraph 4 and 5, I am not aware of the transfer but I say that because the transfer involved IiTaukei land, the order of the court is subject to the consent being granted by the iTaukei Land Trust Board.
17. THAT to paragraph 6 and 7 I say that unless TLTB consents to the transfer, the consent order is null and void because it involves a dealing of iTaukei Land that requires TLTB's consent.
18. THAT as for paragraph 8, 9, 10 and 11 I say I have been occupying this house, a 3 bedroom concrete house on this land for over 10 years under authority of Ram Chandar who is the brother of the Plaintiff and owner of the house.
19. THAT as for paragraphs 12, 13 and 14 I confirm, I have been on this land for almost 10 years, I was brought to the house by its owner Mr Balram, I denied there was any court order as my affidavit does not contain any annexure "E".
20. THAT as for paragraph 15 and 16 the Plaintiff has been collecting rent from me since 2005 and I annex here marked "AV 7" true copies of the rent receipt paid to one Ms Kanta wife of Krishna Murti, the caretaker for and on his behalf.
21. THAT as for paragraph 17 I wish to say that the Plaintiff has no right to this land because TLTB did not give any consent to him.
22. THAT I wish to add that more than 6 houses is on this land that have been in occupation without the owners obtaining consent from TLTB and some of the owners including the Plaintiff did not obtain TLTB's consent and TLTB is now working to regularize all occupation by grant of lease.
(5) The Plaintiff filed an Affidavit in Rebuttal deposing inter alia; (so far as relevant)
Para 2. As to paragraph 7 the transfer was of the sub-lease. I am thethe registered proprietor. It was done by a law firm Jai Ram Reddy & Associates. He was later appointed a Judge of the International Criminal Court.
3. As far as I know Mr Alipate Vuki is not a lawyer and is a school teacher. My legal advice is that he is not in a position to give opinion whether my Lease Number 44656 is determined or valid. Nor is he entitled make comments about rents and other aspects. I object to the same and ask his Affidavit to be struck out.
4. I accept that Stuart Charles solicitor is deceased.
5. I am paying rent to i-Taukei Land Trust Board. Annexed hereto and marked with letter "A" is Receipt No. 147774 dated 25th June 2014. Although I am giving his information I do not accept that the Defendant who has no rights at all on the lease is able to challenge my rights as a registered lessee. My lease has been registered at the office of the Registrar of Titles and my legal advice is that he is not entitled to go behind my title.
6. As to paragraph 18 Mr. Ram Chandra has no authority over this land.
7. As far is paragraph 19 is concerned MR. Bal Ram also has no authority on this land. He has taken me to Court and our highest Court Supreme Court has decided that I am the legitimate proprietor. The sealed order is annexed hereto and marked "B".
8. Mr. Vuki has been troublesome and was quite some time caused damage to my farm and has tried to cause agitation against me.
9. As to paragraphs 18 to 20 he had said three things.
10. As far as I know the ILTB is not opposing my lease and I verily believe the Defendant is simply making excuses. If the TLTB has any issues no doubt they will challenge my lease in a legal way but that is not for the Defendant to harass me in this way.
(C) THE LAW
(1) Against this factual background, it is necessary to turn to the applicable law and Judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiff now seeks.
(2) Rather than refer in detail to the various authorities, I propose to set out, with only limited citations, what I take to be the principles of the play.
(3) 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]
(4) 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.'
(5) 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."
(6) 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.
(D) ANALYSIS
(1) 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 as to 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.
(2) In all applications under Section 169 of the Land Transfer Act, the Plaintiff/Applicant must first comply with the requirement of the law.
The first requirement of Section 169 of the Land Transfer Act is that the Plaintiff must be the "last registered proprietor" or a "lessor with power to re-enter where the lessee or tenant is in arrears" or a "lessor against the lessee or tenant where a legal Notice 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?
This is the threshold question.
As far as Section 169 (b) and (c) are concerned they apply where there is a landlord and tenant relationship.
Section 169 (b) and (c) do not apply in the case before me since the Defendants are not the Plaintiff's Tenant who are in arrears and/or the term of the lease has expired.
Therefore, in this instant case, the first limb of Section 169 applies.
Under Section 169 (a), the Plaintiffs must be "the last registered proprietors" of the land in question. The Defendants raised a number of objections as to why an order should not be made. One preliminary legal point was raised at the outset.
It is argued for the Defendants that the Plaintiffs in the case before me have no locus standior legal standing to bring this action under Section 169 of the Land Transfer Act.
Therefore, have the Plaintiffs proved that they are the last registered proprietors of the land in question?
This is the pivotal question that awaits the determination by this Court.
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".
It is common ground that the land in question is Native Land (Native Lease No. 44656) within the meaning of Native Lands Trust Act. The Plaintiff says that he is the last registered proprietor of the land in question.
Reference is made to paragraph (01) of the Affidavit in Support of the Originating Summons.
Para 2. I am the registered proprietor and lessee of all that piece and parcel of agricultural land known as Lot 1 on Plan No. 1700 "Toko" (part of) situated at Toko in the District of Tavua in the island of Viti Levu containing an area of 25 Acres 2 Roods 08 Perches and comprised in Lease Number 44656 (hereinafter referred to as "the said land"). Annexed hereto and marked with letter "A" is a copy of Lease Number 44656.
The annexure "A" is not the Original or duly certified copy of the Native Lease No: 44656 but a photocopy of the Lease.
The Plaintiff further deposes that .....
Reference is made to paragraphs (03), (04), (05) (06) and (07) of the Plaintiff's Affidavit in Support.
Para 3. The said land was transferred to me by Mr Ballaiya and the
Transfer was registered with Registrar of Titles Office on the 10th day of June 1994. The notation of the Transfer in my favour was done immediately on my copy of Lease Number 44656 as appears in Annexure as appears in Annexure "A"
4. Due to an inadvertence on the part of the Registrar of Titles, the notation of the Transfer in my favour was not noted on the original Lease Number 44656 retained at the Registrar of Titles Office.
5. On the 19th day of April, 2004 I instituted Action No. HBC 106 of 2004 against the Registrar of Titles in the High Court at Lautoka seeking an order requiring the Registrar of Titles to note the transfer in my favour in the original lease No. 44656 in the custody of the Registrar of Titles.
6. On the 28th day of May, 2004 a consent order was made by the high Court at Lautoka ordering the Registrar of Titles to note the transfer in my favour in the original Lease No. 44656 kept by him.
7. Annexed hereto and marked with letter "B" is a certified true copy of Consent Order of the High Court at Lautoka dated the 28th day of May, 2004. This is also shown on the Lease.
I traversed the High Court Order at annexure "B".
For the sake of completeness, the annexure "B" is reproduced below in full.
ORDER
BEFORE THE DEPUTY REGISTRAR MR SITA RAM
ON FRIDAY THE 28TH DAY OF MAY, 2004
UPON an application by the abovenamed Plaintiff by Originating Summons dated the 19th day of April, 2004.
AND upon reading the Affidavit of the Plaintiff, sworn on the 13th day of April, 2004 and filed herein in support of this application and the Notice of Appointment to Hear Originating Summons.
AND upon hearing MR V M MISHRA of Counsel for the Plaintiff and MS S TABAIWALU of Counsel for the First and Second Defendants.
IT IS THIS DAY ORDERED BY CONSENT as follows:-
(a) The abovenamed First Defendant do ntoe Transfer Number 360347 in respect of Lease Number 44656 in favour of the abovenamed Plaintiff on the First Defendant's copy of Lease Number 44656.
(b) The abovenamed First Defendant do issue a new and/or Provisional Lease Number 44656 to the Plaintiff.
(c) The abovenamed First Defendant do pay the Plaintiff costs of this action to be taxed if not agreed.
SEALED this 4th day of June, 2004
BY THE COURT
(signed)
DEPUTY REGISTRAR
Reading those words in their natural and ordinary sense, it seems to me reasonably plain that the aforesaid High Court Order is only a directive to the Registrar of Titles to issue a new/or Provisional Lease No: 44656 to the Plaintiff.
But the Registrar of Titles has not yet issues a new lease or provisional lease to the Plaintiff with regard to the subject land.
Moreover, no registration of Plaintiff's interest is found in the memorials of the Originating Lease No: 44656 retained at the Registrar of Titles Office.
Therefore, I venture to say beyond a per adventure that the Plaintiff does not have a registered Title.
The interpretation of the words contained in the Property Law is found in Section 2 and according to the said interpretation the word registered is defined as follows:
"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and the 'the register' and 'registration' have corresponding meaning.
(Emphasis added)
Section 93(1) of the Land Transfer Act goes directly to the issue in point.
The registration of an interest by "Transmission" is contained in the Part XIV of the Land Transfer Act and Section 93 of the Land Transfer Act. I should quote Section 93 which provides;
93. –(1)"Any person claiming to be entitled to any estate or interest in land subject to the provisions of this Act by virtue of any transmission, whether as the result of the death of the registered proprietor of such estate or interest or otherwise, may make application in the prescribed form to the Registrar to be registered as the proprietor of such estate or interest.
(2) Every application made under the provisions of subsection (1) shall be signed by the applicant and attested by a qualified witness and shall accurately define the estate or interest claimed by the applicant, and shall state that he is entitled to the estate or interest in respect of which he is applying to be registered as proprietor; and the statements in such application shall be supported by the production to the Registrar of the original certified true copies of all documents under which the applicant claims to be entitled to such estate or interest.
(3) If on any application made under the provisions of subsection (1), and upon the evidence adduced in support thereof, the Registrar is satisfied that the applicant is entitled to the estate or interest claimed, the Registrar shall register the applicant as the proprietor thereof, and the person so registered shall hold such estate or interest subject to all equities affecting the same, but for the purpose of any dealing therewith shall be deemed to be the absolute proprietor thereof.
(4) The title of every personal representative of a deceased proprietor registered under the provisions of this section shall relate back to and take effect from the date of death of the deceased proprietor."
(Emphasis added)
The Plaintiffs in this case do not hold a registered title since the transmission has not been registered under Section 93 of the Land Transfer Act.
To be more precise, the Plaintiffs are not competent to bring the action for possession as Executors and Trustees of the Estate of late "Donald William Standring" since the transmission has not been registered in terms of Section 93 of the Land Transfer Act.
Without the proof of registered interest the Plaintiffs cannot succeed.
The provisions of Section 169 of the Land Transfer Act are mandatory and there is no discretion given to the Court as to the persons who might commence proceedings pursuant to that Section.
On the whole of the material disclosed in this case, it seems to me perfectly plain that the Plaintiffs have no legal standing to bring this action. It is not competent for the Plaintiffs to bring this action for vacant possession because the Plaintiffs are not the registered proprietors of the land in question, a condition precedent for proceedings brought under Section 169 (a) of the Land Transfer Act.
Accordingly, I have no alternate but to dismiss the Originating Summons.
I cannot see any other just way to finish the matter than to follow the law.
In view of the approach I have adopted, I do not consider it necessary for me to express my views on the merits of the Defendants arguments relating to their right to possession. It will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the Defendants arguments relating to their right to possession.
(E) FINAL ORDERS
(1) The preliminary objection regarding the locus standi of the Plaintiffs is upheld.
(2) The Originating Summons is dismissed.
(3) The Plaintiffs are ordered to pay costs of $1000.00 to the Defendants which is to be paid within 14 days from the date hereof.
.......................................
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
11th December 2015
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