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Housing Authority v Vosa [2016] FJHC 600; HBC114.2015 (6 July 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 114 of 2015


IN THE MATTER of Section 169 of the Land Transfer Act [Cap 131] for an order of vacant possession.


BETWEEN : HOUSING AUTHORITY a body corporate duly constituted under the provisions of the Housing Act and having its registered Head Office at Valelevu.


PLAINTIFF


AND : 1. JOSEFA VOSA and family

2. JOSHUA TULAVU and family

Both of Lot 2 on DP 4233, Bauka Place, Nadera. DEFENDANTS


BEFORE: Master Vishwa Datt Sharma


COUNSELS: Ms. Vasiti - for the Plaintiff

Mr. Koroi - for the 1st Defendant

No Appearance of 2nd Defendant

Date of Hearing: 18th November, 2015

Date of Ruling: 06th July, 2016


RULING


(Application seeking Vacant Possession pursuant to
S.169 of the Land Transfer Act Cap 131)


INTRODUCTION


  1. On the outset, it is rather important for record purposes that I state by consent of Defendant No.2 (Joshua Tulavu), this Court on 25th May, 2015 made an order for vacant possession. Execution was suspended till 25th June, 2015.
  2. This application proceeded to Hearing against Defendant No, 1 Josefa Vosa only.
  3. The Plaintiff by their Amended Originating Summons dated 20th April, 2015 is seeking that the Defendants do show cause why they should not hand over vacant possession to the Plaintiff of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 12551 and to remove their illegal lean-to-dwelling therefrom on the grounds set forth in the affidavit of Sisilia Rakesa together with costs of and incidental to this application and Police Assistance for vacant possession.
  4. There are 3 (Three) affidavits filed before the Court:
    1. Affidavit in Support of Sisilia Rakesa sworn on 05th March, 2015 (“Plaintiffs Affidavit”);
    2. Affidavit in Reply of Josefa Vosa (D1) sworn on 28th May, 2015 (“Defendant (D1) Affidavit”);
    1. Affidavit in Reply of Josefa Vosa sworn on 11th June, 2015 (“Defendant (D1) Affidavit”).
  5. This case proceeded to hearing on a defended basis and both parties to the proceeding made oral/written submissions at the hearing.
  6. This court has a duty to determine the pending issue before the court in a just and fair manner in terms of the laws provided for in ss169, 171 and 172 of the Land Transfer Act [Cap 131].

THE LAW


  1. The application is filed in terms of s.169 of the Land Transfer Act [Cap 131] which provides as follows:

“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) lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”


  1. Pursuant to section 172 of the Act the onus is on the Defendant to show cause why he refuses to give up possession to the Plaintiff and why an order for possession should not be made against him.
  2. The Plaintiff is the registered owner as a Lessee in this instant case. The term “Lessee” is defined as proprietor of a Lease or sub lease in the Land Transfer Act. Therefore, the term “Lessee” follows within the ambits of section 169 application.
  3. In the case of Ram Narayan v Moti Ram (Civ. App. No. 16/83) Gould J.P. said-

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."

  1. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act (Cap 131) respectively which stipulates 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."

(Underline is mine for emphasis)


  1. As far as the requirements in terms of section 172 are concerned, the Supreme Court in the case of Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said 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."


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

"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. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown. (Emphasis added)

  1. In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975) the Court of Appeal said:

‘These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –

‘Under Section 172 of the Act the Judge is required to dismiss the summons if the respondent proves to his satisfaction a right to possession ...’


  1. Under Section 172 of the Act the judge is empowered to dismiss the summons if the respondent proves to his satisfaction that she has a valid defence, a right to possession, locus standi and or a licence. It further provides that a judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a Plaintiff to take any other proceedings to which he may be otherwise entitled.
  2. Reference is made to the case authorities of Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported) wherein the Supreme Court held-

that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide the cases on summary proceedings of this nature, but will dismiss the summons without prejudice to the Plaintiff’s right to institute proceedings by Writ of Summons.’


Plaintiff’s Case


  1. The Plaintiff’s Affidavit filed in this case deposed as follows:

Defendants’ Case


  1. The Affidavit deposed by Defendant Josefa Vosa states as follows;

ANALYSIS and DETERMINATION


  1. The question for this court to determine is whether the Plaintiff is entitled to the vacant possession of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 125551 and whether Defendant No. 1 should remove his illegal lean-to-dwelling together with costs of and incidental to this application and Police Assistance for vacant possession, of which the Plaintiff is the registered proprietor of in terms of s.169 of the Land Transfer Act [Cap 131]?
  2. In this case, the Plaintiffs must first comply with the requirements of section 169 of the Land Transfer Act cap 131, which are stated hereunder as follows-

(Underline for emphasis)


  1. In this instance, the first limb of s169 applies; the plaintiff is the last registered proprietor of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 125551.
  2. In this respect the plaintiff has annexed in her affidavit a certified true copy of the Headlease No. 125551.

The Headlease No.125551 clearly shows that the Headlease was registered to the Plaintiff on 28th September, 1972 at 11.25 am.


  1. The Plaintiff is for the purposes of section 169 the last registered proprietor of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 125551.
  2. After the Plaintiff has established the first limb test of section 169 that is that the Plaintiff is the registered proprietor of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 125551, then the Defendant bears the onus of showing cause as to why vacant possession should not be granted to the Plaintiff.
  3. Pursuant to section 172 of the Land Transfer Act Cap 131, Defendant No. 1 needs to satisfy this court on affidavit evidence that he has a right to possession. (Case of Muthusami v Nausori Town Council F.C.A. 23/86 refers).
  4. There is no need to prove conclusively a right to possession and it is sufficient for the Defendant to prove that there is some tangible evidence establishing the existence of a right or of an arguable defence. (Case No. 152 of 1987- Morris Hedstrom Ltd v Liaquat Ali refers).
  5. Defendant No. 1 in his Affidavit In Reply has stated that he took issue with the Plaintiff at paragraph 3 and said that he has been constantly going to the Housing Authority for the lease of the said piece of land so as to legalise their stay there and he was upon the verge of achieving the same when one Verenaisi Tuvuki Raicola made false accusations against him and his family which had triggered this proceedings.
  6. Sections 39-42 of the Land Transfer Act, and under the Torrens system of land registration which operates in Fiji, the title of the registered proprietor is indefeasible unless actual fraud is proved. (Case of Subramani v Sheela [1982] FJCA 11; [1982] 28 FLR 82 (2 April 1982); Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p. 210; Fels v Knowles 26 N.Z.L.R. 608, at p 620 refers).
  7. Section 39(1) of the Land Transfer Act simply states that a registered title is deemed paramount and is not affected or defeated by an unregistered interest except in case of fraud.
  8. Once the hearing in this matter was concluded on 18th November, 2015, the Defence Counsel representing the 1st Defendant requested Court to defer the Ruling to mid 2016. When Court enquired into the reason, Counsel said ‘that he may be relocated which he could gather from the two correspondence from the Housing Authority”. This in itself is an indication to Court that 1st Defendant was aware that he was in an unlawful occupation of premises and needed to either vacate the premises or be relocated accordingly.
  9. Bearing in mind the above, I find that the Plaintiff is the registered proprietor of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 125551.The Defendant therefore has the locus standi to bring this action against the Defendant seeking an order for vacant possession.
  10. The Defendant was served with a Notice to Quit on 29th December, 2014 and subsequently served with an Originating Summons seeking an order for Vacant Possession as per the requirement of the law.
  11. The Defendant has failed to show any cause including a right to possession or has tangible evidence establishing a right or supporting an arguable case for such a right that must be adduced in terms of section 172 of the Land Transfer Act, Cap 131.
  12. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  13. Following are the final orders of this court.

FINAL ORDERS


  1. Defendant No.1 to give vacant possession to the Plaintiff of the portions of the said open reserved land situate at Bauka Place, Nadera Subdivision and comprised in Headlease No. 12551 in one months’ time, on or before 06th August, 2016.
  2. Defendant No.1 to remove his illegal lean-to-dwelling therefrom in one months’ time, on or before 06th August, 2016.
  1. Defendant No. 1 to pay the Plaintiff Costs summarily assessed at $1,000.
  1. Fiji Police to provide all assistance necessary when enforcement of vacant possession is being carried out.
  2. Execution is hereby suspended till 06th August, 2016.

Dated at Suva this 06th day of July, 2016


...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva


cc. Lajendra Law, Suva

Koroi Law, Nausori



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