Basic Industries Ltd v Hot Spring Hire Services Ltd [2016] FJHC 269; HBC246.2014 (14 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 246 of 2014

BETWEEN:

BASIC INDUSTRIES LIMITED t/a STANDARD CONCRETE INDUSTRIES a co-operative society duly incorporated pursuant to the Co-operative Societies Ordinance Cap 219 and having its principal place of business at 68 Suva Street, Suva.
PLAINTIFF

AND:

HOT SPRING HIRE SERVICES LIMITED a limited liability company having its registered office at lot 56 Vunikoka, Savusavu in the Republic of Fiji.
DEFENDANT

ITAUKEI LAND TRUST BOARD a body corporate established under the iTaukei Land Trust Act Cap 134.
FIRST THIRD PARTY

MATAQALI MATANIKOROVATU of Kalabu Village, Qaranivalu Road, Nasinu.
SECOND THIRD PARTY

COUNSEL: Mr. Shazran Lateef for the Plaintiff
Mr. Nemani Tuifagalele for the Defendant & Second Third Party
Ms. Komaitai for the First Third Party

BEFORE: Master Vishwa Datt Sharma
Date of Hearing: 07th September, 2015
Date of Ruling: 14th April, 2016

DECISION
( Amended Originating Summons pursuant to Order 113 of the High Court Rule, 1988 and the Inherent Jurisdiction seeking an order for vacant possession.)

INTRODUCTION

1. The Plaintiff filed an Amended Originating Summons on 07th August, 2015 and sought for the following order-
   
   • (i) That the Defendant and/or any other occupant deliver to the Plaintiff Vacant Possession of ALL THAT piece or parcel of land comprised in TLTB Reference No. 4/03/39302 for iTaukei land known as Naibuluvatu containing an area of 21.1218 ha (subject to survey) and situated in the Tikina of Naitasiri and in the Province of Naitasiri TOGETHER WITH all improvements and fixtures thereon.
     
   • (ii) Such further or other relief as seems just and equitable to this Honourable Court.
     
   • (iii) Costs of this action.
     
2. This application was filed in support of an affidavit of Joe Savu sworn and filed on 07th August, 2015.
   
3. The application was made pursuant to Order 113 of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honourable Court.
   
4. The parties to this proceedings filed a total of Five (5) affidavits in support of their respective cases as enumerated hereunder-
   
   • (a) The Plaintiff’s Affidavit in Support of Joe Savu filed on 26th August, 2014;
     
   • (b) The Defendant’s Affidavit in Reply of Roy Singh on behalf of the Defendant and filed on 20th October, 2014;
     
   • (c) First Third Party’s Affidavit in Opposition by Ela Manuku filed on 11th February, 2015;
     
   • (d) The Affidavit in Response of Paula Rawiriwiri filed on behalf of the Second Third Party on 20th October, 2014; and
     
   • (e) The Plaintiff’s Affidavit in Response to the Affidavit of Roy Singh, for the First Defendant, and Affidavit in Response of Paula Rawiriwiri for the Second Third Party and filed on 09th March, 2015.
     

THE LAW

5. Order 113. R.1. of the High Court Rules, 1988 provides a summary procedure for possession of land to be brought by Originating Summons and states as follows-
   

“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order”.

The Plaintiff’s Case

6. The Plaintiff in his affidavit in Support stated that-
   
   • (a) The Plaintiff entered into an Agreement for Lease with the TLTB to lease the Property described as TLTB No. 4/03/39302, which is situated at Naibuluvatu, Naitasiri for a term of 25 (twenty-five) years which commenced on 1st July 2013. A true copy of the said Agreement for Lease can be sighted in Annexure A of the Plaintiff’s Supporting Affidavit. The plaintiff has paid the sum of $165,000.00 (One Hundred Sixty-Five Thousand Dollars) as consideration for the leased Property.
     
   • (b) The Leased Agreement has a special condition which requires the Plaintiff to be solely responsible of the eviction of the Defendant. This can be sighted in page 7 of the Agreement for Lease.
     
   • (c) The Plaintiff had initially sent a letter dated 8th April 2014 to the Defendant Company requesting that it delivers vacant possession of the Property in 23 (twenty three) days. The letter can be sighted in Annexure B of the Plaintiff’s Supporting Affidavit.
     
   • (d) The Plaintiff’s solicitors after the expiration of the initial letter sent a Notice to Vacate to the Defendant dated 19th May 2014. The Notice to Vacate can be sighted in Annexure C of the Plaintiff’s Supporting Affidavit.
     
7. The Plaintiff in his Affidavit in Reply stated that:
   
   • (a) The Property which was leased has excluded the 10 acres as per the consultation with the 2nd Third Party. The Property leased is of 52 acres i.e. 21.1218 hectares. During the initial consultation with the 2nd Third Party, the Plaintiff stated that they would be willing to help them with their business propositions; however no commitment was undertaken by the Plaintiff to exclude the leased area currently occupied by the Defendant.
     
   • (b) During the discussions the 2nd Third Party made no mention of the Defendant being considered occupants of the Property. The Plaintiff is only willing to consider the 2nd Third Party as the proposed occupants of the PWD quarters if they are pursuing their business propositions.
     
   • (c) The Property was leased to the Plaintiff after it was given consent by TLTB and there was consultation with the Mataqali.
     
   • (d) The Property is leased to the Plaintiff and therefore to occupy the Property the Defendant requires the Plaintiff’s and TLTB’s consent rather than the consent of the 2nd Third Party. Hence the Defendant does not have any legal right to the land it is occupying.
     
   • (e) The Plaintiff has not tried to evade settlement. On 23/02/15 it met with all the Parties in these proceedings and tried o negotiate a Terms of Settlement. The Plaintiff has provided some assurances to the 2nd Third Party’s for its business propositions, but only if the business propositions are reasonable. This can be sighted in the annexure marked “A” in the Plaintiff’s Responding Affidavit.
     
   • (f) The Plaintiff wants to commence its quarrying business and is being stopped by the Defendant’s illegal occupation of the said land. By occupying and operating its business operation from the said building the Defendant Company has been unjustly enriching itself The valuation of the PWD quarters was done and can be sighted in the annexure marked “B” in the Plaintiff’s Responding Affidavit.
     
   • (g) Furthermore, the Plaintiff states that it did not have any unfair dealings with the 2nd Third Party’s trustees.
     

The Defendant’s Case

8. The Defendant’s Affidavit filed herein has basically advanced the following grounds in support of its refusal to vacate the property:
   
   • (a) The area the Defendant Company occupies is the old Public Works Department quarters (PWD quarters”) and states the PWD quarters was to be excluded from the Property that was leased. The Mataqali had meetings with the Plaintiffs and TLTB in which, they requested for the PWD quarters to be excluded from the leased area.
     
   • (b) The Defendant is in occupation of the PWD quarters on the invitation of the Mataqali. Furthermore there were some dubious acts committed by the Mataqali’s trustees who allowed the Property to be leased without the required 60% consent of the Mataqali.
     
   • (c) The Plaintiff has been evading the Defendant and the Mataqali to “iron out” issues regarding the area leased. The Property that has been leased should be 52 acres. In the initial discussion between the Plaintiff and Mataqali, the Mataqali had requested that 10 acres be reduced from the Property as there are 35 homes in occupancy of the 10 acres. The 10 acres that was to be reduced was inclusive of the PWD quarters.
     

1st Third Party’s Case in Support of the Plaintiff’s Claim

9. The 1st Third Party’s Affidavit in support of the Plaintiff filed herein has deposed as follows:
   
   • (a) It alleges that Paula Rawiriwiri is not mandated by the Mataqali to represent its interests and his Affidavit should not be given credence.
     
   • (b) TLTB confirms that it has issued an Agreement for Lease to the Plaintiff for the said Property and there was a reduction of 10 acres from the initial lease.
     
   • (c) The area occupied by the Defendant Company i.e. the PWD quarters was initially to be part of the area excluded from the leased Property however due to the Defendant’s occupation without the consent of TLTB, it leased the portion to the Plaintiff. The Defendant Company holds no lease, licence or authority from TLTB for them to possess and occupy the PWD quarters, hence their occupation is illegal.
     
   • (d) Furthermore TLTB explains that the Property is outside reserve and therefore it is not necessary it is not necessary for the Board to obtain the consent of the Mataqali in order to administer the land or issue a lease. The consent of the Mataqali does not convey any legal interest.
     

2nd Third Party’s Case in Support of the Defendant’s Claim

10. The 2nd Third Party’s Affidavit filed herein has advanced the following grounds in support of the Defendant’s claim for refusal to vacate the property:
    
    • (a) It states the Mataqali has allowed and is responsible for the Defendant Company’s temporary occupancy of the PWD quarters on the Property.
      
    • (b) The Mataqali admits that there was majority consent by them for the issuance of the lease by the 1st Third Party to the Plaintiff. This consent was conditionally to:
      
      • (i) The Property being leased is reduced from 62 acres to 52 acres as 35 homes are in occupancy of the 10 acres.
        
      • (ii) The old PWD quarters should not be part of the Property that is being leased.
        
    • (c) The mentioned conditions were necessary for the Mataqali to commence business operations in the area.
      
    • (d) The Mataqali through its solicitors informed the 1st Third Party of the conditions however the 1st Third Party blamed the Mataqali for violating the conditions by bringing the Defendant Company to occupy the PWD quarters. Furthermore the Matqali believes the Plaintiff has been evasive of settling the issue regarding the area leased.
      
    • (e) Paragraph 17 of the following affidavit contradictorily states that the consent obtained from its trustees for leasing the Property, was not mandated, even though in an earlier statement (Paragraph 5) it confirms that the consent was provided by majority of the Mataqali.
      

ANALYSIS and DETERMINATION

11. This application is made in terms of Order 113 of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honourable court. The provisions of Order 113 can be described as having two (2) limb test:-
    
    • (i) The primary burden is with the Plaintiff to satisfy to the court that is has the legal right to claim the possession of the land.
      
    • (ii) Once the Plaintiff satisfies the primary burden, the onus shifts towards the Defendant, whereby the Defendant has to satisfy the court that it has a licence or consent of the owner to occupy the land.
      
12. The question or issue for the Court’s determination is whether the plaintiff is entitled to possession under the provisions of Order 113 of the High Court Rules, 1988.
    
13. In order to decide this question, the Court also has to give due consideration to the scope of this Order. This aspect is covered in detail in The Supreme Court Practice, 1993 Vol. 1, O.113/1-8/1 at page 1602 as well, and the relevant portions in this regard is set out hereunder:
    

"Order does not provide vide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers."

14. As to the application of this Order, it is further stated thus:
    

"The cation of this Orde Order is narrowly confined to the particular circumstances described in r.1. i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593."

15. This Order is narrowly confined to the particular remedy stat r.1. It is also to be noted, as the White Book says at p.1t p.1603:

"Thder would nord normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonablbt as to the claim of the plaintiff to recover possession oion of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto."

16. The subject land for which the Plaintiff is seeking an order for vacant possession is all that piece or parcel of land comprised in iTaukei No. 39302 known as Naibuluvatu containing an area of 21.1218 ha and situated in the Tikina of Naitasiri and in the Province of Naitasiri together with all improvements and fixtures thereon.
    
17. The mandate to control and administer itaukei land is provided for in Section 4 of the iTaukei Land Trust Act Cap 134, which states as follows;
    

4.(1) The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the Fijian owners.

18. The iTaukei Land Trust Board in exercise of its powers in terms of section 4 the Act, issued an Agreement to Lease the land in question comprising an area of some 52 acres to the Plaintiff for a term of 25 years with effect from 01st July, 2013.
    

The remaining 10 acres out of the 62.25 acres of the land was reverted by the TLTB Board to the land owning unit, Mataqali Matanikorovatu (2nd Third Party) to this proceedings.

19. Prior to the issuance of the Lease to the Plaintiff, the subject land comprising of 62.25 acres was leased by the Director of Lands and that lease had expired on 31st December, 2012.
    
20. According to Itaukei Land Trust Board, the Defendant is still occupying part of the Lease issued to the Plaintiff. This portion of the land in occupation by the Defendant was included by the Board to the Plaintiff's Lease as the Mataqali Matanikorovatu (2nd Third Party), had failed to show any indication that the subject land will be used for their asset capitalisation as agreed between the 1st Third Party and the 2nd Third Party. The 2nd Third Party alleged that the Board had breached its duty by failing to follow the resolution between the Board and the members of the 2nd Third Party, Mataqali Matanikorovatu. Whereas, the 1st Third Party, Itaukei Land Trust Board submitted to this court that the land in question is outside reserve land and therefore the administration of the said land is within the Board's discretion. They further stated that the Mataqali Matanikorovatu had failed to keep their part of the agreement which is they will use the subject land for business purposes for their Mataqali; instead they had allowed the Defendant to occupy the subject land.
    

Itaukei Land Trust Board submitted that the Board is only required to consult the landowning unit on the leasing of the said land; it is not required to obtain their consent and the Board has the discretion in the leasing of the said land.

21. In this case, what had actually transpired between the 1st and the 2nd Third Parties in regards to their agreement on the use of the portion of the said land is outlined in the affidavit of Ela Manuka, the Regional Manager Central Eastern filed on 11th February, 2015 at paragraphs 9, 10 and 11 respectively. The Turaga ni Mataqali, Mr. Paula Rawiriwiri of the 2nd Third Party was in breach of that agreement allowing the Defendant to occupy the said portion of the land. The subject portion of the land being 10 acres was to be reverted for asset capitalization of the 1st Third Party. However, the 2nd Third Party had failed to provide any satisfactory evidence that it had the financial capability of using that portion of the land for business venture on their own accord.
    
22. The Board's decision to include the said portion of the land to the Plaintiff was in the best interest of the land owning unit as part of the agreement between the Board and the landowning unit was for asset capitalization. However, the landowning unit failed to perform its part of the agreement and therefore the decision to include the said portion of land to the Plaintiff was due to the financial returns it will get from the premium and rentals.
    
23. It was for this very reason and on that basis that the iTaukei Land Trust Board by a correspondence addressed to Solicitors Tuifagalele Legal, representing the Defendant and the 2nd Third Party, dated 02nd May, 2014 (annexure marked 'PR6' within the affidavit in support of Paula Wiriwiri ), informed them as follows-
    

(i) "We wish to confirm the area leased out to Standard Concrete Industries exclude all the existing dwellings including the 35 families you mentioned in your letter;

(ii) The only area included was the former sealing site of the then Public Works Department;

(iii) We initially earmarked this site for the Mataqali Matanikorovatu to set up business such as taxi base, bakery and shopping mall;

(iv) However when they brought another applicant to lease the same site we feel that they do not really immediately need the site; and

(v) We have carried out our own assessment and have included the former sealing site to the Standard Concrete Industries Lease."25.

First Limb Test: Order 113 of the High Court Rules

24. Upon a careful perusal of the "Agreement for Lease" marked as annexure 'A" within the affidavit in support of Joe Savu, dated 13th March, 2014, the Plaintiff is described as Lessee of the Property. The Plaintiff paid a consideration sum of $165,000 for the said Lease and the yearly rental of $21,500 applies.
    
25. Thereafter, the Plaintiff took possession of the Property with effect from 01st July, 2013. This has been established by the Plaintiff and is also confirmed by ITaukei Land Trust Board (1st Third Party). Further, it is ascertained and confirmed from the affidavit in support of Roy Singh, sworn on 18th September, 2014 at paragraph 3, that the Defendant is occupying the PWD quarters within a portion of the land at Naibuluvatu, Laqere, Nasinu, purport to be within the abovementioned Lease, which falls within the bounds of the Property of which the Plaintiff holds the Lease for.
    

Second Limb Test: Order 113 of the High Court Rules

26. The Second Limb of Order 113 requires the Defendant to satisfy to the court that it has a licence or consent of the owner to occupy the land.
    
27. Particular reference is made to paragraphs 7 and 11 of the affidavit in support sworn on behalf of the Defendant by Roy Singh and filed on 18th September, 2014, wherein he states as follows –
    
    • (a) 'that the Defendant Company came to occupy the site only with the permission of the second Third Party for purposes of assisting the Mataqali Matanikorovatu in some of their development projects to be conducted on the excluded portion of the land (paragraph 7 refers).
      
    • (b) 'That the Defendant is only occupying the said part of the land on the invitation and blessing of the second Third Party as it fully relied on the approval of the First Third Party that it will exclude the said portion accordingly. Therefore the said special condition in the Plaintiff's Lease should be rendered null and void." (Paragraph 11 refers).
      
28. The application of the provisions of Order 113 of the High Court Rules, 1988 is carried out to evict squatters or trespassers. Reference is made to the case of Department of Environment v James and Others {1972] 3 All E.R. 629 squatters and trespassers are defined as:
    

"He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can..."

29. The Defendant only obtained consent from the 2nd Third Party, Mataqali Matanikorovatu but did not obtain any consent from the 1st Third Party, ITaukei Land Trust Board to occupy the said portion of the land. The ITaukei Land Trust Board in fact is the legal custodian of this land in question. Therefore the Defendant's occupation of the portion of the land in question is not only illegal rather tantamount to be a squatter and or a trespasser since the said portion of the land occupied by the Defendant has been leased out to the Plaintiff on 13th March, 2014 with effective from 01st July, 2013, by the ITaukei Land Trust Board herein. In any event, the final decision on the usage and administration of the subject land rested with the Board accordingly.
    
30. The Defendant does not have a licence, consent of the Plaintiff and or ITaukei Land Trust Board any colour of right to occupy any portion of the land in the said property of which the Plaintiff holds the Lease of.
    
31. The Defendant therefore has failed to discharge the onus of showing any cause for his refusal to vacate the said property or portion of the land in his present occupation.
    
32. The Plaintiff entered into an Agreement To Lease with the iTaukei Land Trust Board to lease TLTB No. 4/03/39302 Naibuluvatu, Naitasiri for a term of 25 years which commenced on 01st July, 2013 and therefore is at all times the registered leaseholder of the said property and is authorised under the Lease Agreement to use the said property in terms of the issued Lease.
    
33. For the aforesaid rational, I make the following Orders-
    

FINAL ORDERS

1. The Defendant to give vacant possession of that piece or parcel of land comprised in the TLTB Reference No. 4/03/39302 for ITaukei Land known as Naibuluvatu containing an area of 21.1218 ha (subject to survey) and situated in the Tikina of Naitasiri and in the Province of Naitasiri Together with all improvements and fixtures thereon, to the Plaintiff, of which the Plaintiff is the registered proprietor or Leaseholder of.
   
2. The Defendant to deliver vacant possession to the Plaintiff in one (1) month's time on or before the 14th May, 2016.
   

100. Execution is hereby suspended till the 14th May, 2016.
     

4. Cost is summarily assessed at $1500 against the Defendant.
   

Dated at Suva this 14th day of April, 2016

MR VISHWA DATT SHARMA
Master of High Court, Suva

cc: Mr. Shazran Lateef for the Plaintiff
Mr. Nemani Tuifagalele for the Defendant & Second Third Party
Ms. Komaitai for the First Third Party