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Chung Kin Fong v Nand [2016] FJHC 77; HBC347.2015 (9 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 347 of 2015


IN THE MATTER
of an application under Section 169 of the Land Transfer Act.


BETWEEN :


CHUNG KIN FONG
of Lot 2 Wailekutu, Lami, Fiji, Businessman.
PLAINTIFF


AND :


SAVITA NAND
of Flat No. 1, 447 Waimanu Road, Suva, Fiji, occupation not known.
DEFENDANT


BEFORE : Master Vishwa Datt Sharma
COUNSELS : Mr. N. Prasad for the Plaintiff
Ms Savita Nand (in Person)


Date of Hearing : 04th February, 2016
Date of Ruling : 09th February, 2016


RULING


INTRODUCTION


  1. The Plaintiff filed an Originating Summons on 5th November, 2015 and sought for the following orders –
  2. This application is supported by an affidavit of Chung Kin Fong, sworn on 04th November, 2015 and filed on 5th November, 2015.
  3. The application is made pursuant to Section 169 of the Land Transfer Act, Cap 131.
  4. The Defendant was personally served with a Notice to Quit on 11th September, 2015 and subsequently, the Originating Summons seeking an order for vacant possession was served on 7th November, 2015 and an affidavit of service to this effect has been filed into court as evidence.
  5. The Defendant chose to represent herself and was granted 14 days time to file and serve her affidavit in opposition and the Plaintiff to serve any affidavit 7 days thereafter. The matter adjourned for hearing to 04th February, 2016.
  6. This case proceeded to hearing on a defended basis and both parties to the proceeding made oral submissions at the hearing.
  7. 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].

Plaintiff's Case


(i) That the Plaintiff is the registered proprietor of all that land and building situate at Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on deposit plan no. 1079 (hereinafter referred to as the "Property"). Annexed hereto and marked with the letter "A" is duly certified copy of the said Certificate of Title.

(ii) That he purchased the Property last year for the sum of $500,000.00 and the transfer transaction was registered on or about 22nd August 2014.

(iii) That the building is old and in immediate need of renovation.

(iv) That the Defendant had an existing Tenancy Agreement with the previous registered proprietor which was entered into between the parties on or about 26 July 2013. The said tenancy was fora period of 1 year from 1st August 2013 for monthly rental of $650.00. Annexed hereto and marked with the letter "B" is a copy of the said Agreement.

(v) That the Defendant as he understands occupies the Property with her family and/or invitees.

(vi) That he is advised that the said Agreement has long lapsed and the Defendant presently occupies the Property as a periodic tenant.

(vii) That it is the Plaintiffs immediate plan to renovate the Property starting with changing the entire roof and guttering which work has already commenced. Once this is completed my contractors will embark on renovating Flat 1 which the Defendant occupies. This work will involve replacing the electrical wirings, installing a new kitchen and laundry and updating the water pipes and plumbing.

(viii) That the Plaintiff instructed their solicitors Mitchell Keil to issue and serve Notice of Quit on the Defendant and he is informed and verily believe that such Notice was served on and received by the Defendant on 11th September 2015 at Rambo Road, Nasinu. Annexed hereto and marked with the letters "C" is a true copy of the said Notice.

(ix) That upon the expiry of one month, the Defendant has refused to vacate and deliver up possession of the Property despite service of the said Notice to Quit on her.

(x) The he verily believe that the Defendant is occupying on the Property unlawfully and without any authority and that she, her employees and/or family and invitees are presently trespassing on the Property despite the said Notice to Quit.

(xi) That he therefore pray to this Honourable Court for an Order for immediate vacant possession of the property now occupied by the Defendant, her family and invitees.

Defendant's Case


(i) That she is the Defendant in this matter. She is defending the proceedings from her own knowledge and understanding with Kim Fong.

(ii) That she took tenancy of the flat in July 2013 and entered into the tenancy agreement with the than owners for a monthly rental of $650.00 as filed by the Plaintiff.

(iii) That she took the flat as it was and still is in good liveable order and state. It is in a safe location for my children and she carried out minor works and painting for our comfort.

(iv) She continued to occupy the flat with her children within the terms of the tenancy agreement. She was and not concerned about the fact that her rent is higher than the other flats due to the better state it is in.

(v) That the property changed ownership to one LUKE RATUVUKI. The tenancy agreement was transferred and became binding with Luke Ratuvuki.

(vi) That on or about the time before Chung Kin Fong took ownership of the property, Luke Ratuvuki obtained my consent and signature to transfer and continue the agreement to/with Chung Kin Fong.

(vii) Since the change of ownership, at no given time did Chung Kin Fong show cause for concern about the tenancy agreement and the Plaintiff had always maintained that the agreement was to continue as it is. She is aware that all other tenants remain on the same tenancy agreement as of before Chung Kin Fong.

(viii) That upon the change of ownership and thereafter, Kim Fong changed the wiring to my flat where needed and installed circuit breakers and general up grade. The electrical wiring is safe and up to date.

(ix) That the kitchen and laundry are of good condition and order. Plumbing and water works are external and do not affect my occupancy or will be effected by my occupancy.

(x) That at all given times Kim Fong insisted and reassured the Defendant that the tenancy agreement was and is adequate and will continue and that there was no need to change or renew. She feels they are safe and protected by the fact that she had safe and secure flat and a caring landlord.

(xi) She was deeply saddened and taken aback when served with the Notice to Quit. She continued to pay rent and occupy the flat. The rent for September, October was accepted.

(xii) She truly believes that other flats on the property are in worse condition and state and hence pay a lower rent. She is of knowledge that no other tenant has been served Notice of Quit due to renovations.

(xiii) She truly believe that the demand for immediate vacant possession is unreasonable as majority of immediate works as claimed are external and in good business sense the other flats of poor quality should be first to be renovated as they are in need of renovation.

(xiv) She truly believe that the demand for Vacant Possession is based on two issues: that she refused to provide power for works as she did before and than accept what Kim, Fong deemed to be the amount he should pay; and that of an incident that occurred between her husband and Kim Fong at 9.55 pm on 5th September at the door of her flat and then again on 6th at around 11.30 am at MHCC. Her husband joined her children and her in November 2014. Kim Fong and Chung Kim Fong were both aware.

(xv) She has always dealt with Kim Fong and her husband had heated words to that effect and regard. She truly believes that Kim Fong has taken an offence to that and that is the reason the Plaintiff seeks to evict her.

(xvi) She requests for an independent inspection of the condition of the property by court and relevant authorities and notice to Quit to vacate be dismissed with costs.

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. 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. It is for the defendant to 'show cause' why she refuses to give vacant possession of the property situate at Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079 to the Plaintiff as sought for by the Plaintiff.
  3. 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.'


ANALYSIS and DETERMINATION


  1. The question for this court to determine is whether the Plaintiff is entitled to the possession of the property situate at Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079, 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 property situate at Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079.
  2. In this respect the plaintiff has annexed in his affidavit a certified true copy of the Certificate of Title No. 6792 being Lot 3 on DP 1079 which confirms that the Plaintiff is the registered proprietor of that land and building situate at Flat 1, 477 Waimanu Road, Suva. The Title clearly shows that the property was transferred to the Plaintiff on 22nd August, 2014 at 10.28AM under transfer number 802584.
  3. The Plaintiff is for the purposes of section 169 the last registered proprietor of the said Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079. Not only that, during the hearing the Defendant admitted that the Plaintiff was the Landlord and the proprietor of the said property.
  4. 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).
  5. In Subramani (supra) the Fiji Court of Appeal (per Gould V.P.' Marsack, J.A., and Spring J.A.) states as follows-

'The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v Knowles 26 N.Z.L.R. 608. At page 620 it is said;-


"The cardinal principle of the statute is that the register is everything, and that, except in case of the actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world."


  1. Bearing the above in mind, I find that the Plaintiff has the locus standi to bring this action against the Defendant in this case.
  2. After the Plaintiff has established the first limb test of section 169 that is that the Plaintiff is the registered proprietor of the subject property Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079, 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. The Defendant needs to satisfy this court on affidavit evidence that she 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. The Defendant was served with the Plaintiff's application seeking vacant possession on 07th November, 2015 and filed her affidavit in opposition on 16th December, 2015. The Defendant was present in court at the scheduled hearing on 04th February, 2016 and defended herself accordingly.

The Plaintiff's Counsel presented his side of the case in terms of section 169 and submitted oral submissions.


Likewise, the Defendant presented her case in person and made oral submissions to court in support of her defence. Upon court's questioning, the Defendant admitted that the Plaintiff was the landlord and the proprietor of the property that she was in occupation of. She stated to court that she needs to continue with the occupation and doesn't see any reason why she should be asked to vacate when she has been paying the monthly rental and there is no need for any renovation work to be carried out on her Flat. She further, stated that even though she was served with a Notice to Quit by the Plaintiff, she even then continued to pay the monthly rental for the months of September, October and November which was accepted by the Plaintiff and she continued to occupy the Flat.


  1. For the aforesaid rational, I find that the property situate at Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079 was transferred to the Plaintiff on 22nd August, 2014 and the Plaintiff is the registered proprietor of the same in terms of the Land Transfer Act Cap 131.
  2. The Defendant was served with a Notice to Quit and subsequently served with an Originating Summons seeking an order for Vacant Possession as per the requirement of the law.
  3. 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.
  4. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  5. Following are the final orders of this court.

FINAL ORDERS


  1. The Defendant to give vacant possession of the property situate at Flat No. 1, 477 Waimanu Road, Suva and comprised in Certificate of Title No. 6792, being Lot 3 on Deposit Plan No. 1079 to the Plaintiff.
  2. The Defendant to deliver vacant possession to the Plaintiff in one (1) months' time on or before the 08th March, 2016.
  1. Execution is hereby suspended till the 08th March 2016.
  1. Cost is summarily assessed at $500 against the Defendant.

Dated at Suva this 08th day of February, 2016


...........................................
MR VISHWA DATT SHARMA
Master of High Court, Suva

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