IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 388 of 2015

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

BETWEEN	: 	INDAR KUAR of Unit 12, 12 Elphinstone Road, South Coogee, N.S.W 2034, Australia, Domestic Duties.
PLAINTIFF

AND	:		DHARAM GAJRAJ SINGH of 335 Neela Place, Stage 1, Makoi, Nasinu.
DEFENDANT

Appearances	:		MC Lawyers for the Plaintiff
Shelvin Singh Lawyers for the Defendant

Before	:		Acting Master S.F. Bull
Hearing	:		23 May 2016
Judgment	:		07 October 2016

JUDGMENT
1.	There are two applications for the Court’s determination.  The first is a summons under section 169 of the Land Transfer Act seeking an order for immediate vacant possession.  The second is an application seeking leave to file a further affidavit in reply, and an order for the Plaintiff to discover certain documents to the Defendant.  Both applications are opposed.
2.	I deal first with the summons for leave to file a further affidavit in reply and for discovery.  

The affidavits
3.	In support of its application for leave and discovery, the Defendant avers that the Plaintiff has introduced new material in its affidavit in reply sworn on 23 March 2016 and filed 01 April 2016.  The alleged new matters are:

•	that she used to send monies to him;
•	that it was for him to maintain the property and pay ground rent and Nasinu Town Council;
•	that she was transferring a one third share to him;
•	that she withdrew only because he had failed to pay the Capital Gains Tax demanded by FIRCA, and;
•	that he had agreed with her to vacate the property.

4.	The Defendant says he needs to file a further affidavit to respond to these new matters in the Plaintiff’s reply, claiming unfairness if leave were denied.

5.	The Plaintiff did not file an affidavit in opposition.  Mr. Maharaj submitted that at the time of filing its answering affidavit, the Defendant had had the information he now wished to include in the intended further affidavit in reply and should have included it then.  The Plaintiff’s averment in the affidavit in reply that she used to send monies to the Defendant was not new material and that the Defendant had known that already.  Counsel says section 169 does not allow for discovery and that discovery would be an abuse of the section 169 process. 

Analysis 
6.	The basis of the Defendant’s application to file a further affidavit is what it says is the introduction by the Plaintiff of “new matters” in its reply affidavit.  

7.	The “new matters” are:
•	that she used to send monies to the Defendant;
•	that the purpose of the monies was for the Defendant to maintain the property and for him to pay ground rent and town rates;
•	that she was transferring one third share to the Defendant;
•	that she withdrew only because the Defendant had failed to pay the capital gains tax demanded by FIRCA, and that;
•	the Defendant has agreed with her to vacate the property.

8.	In reply, the Plaintiff says the contents of paragraphs 7 and 10 of its affidavit in reply are an answer to the Defendant’s affidavit in response.

9.	The starting point must be a determination of whether the matters identified by the Defendant in the Plaintiff’s affidavit in reply are “new”.

10.	In Ridout v Ridout, 2001 MBQB 48, 154 Man. R. (2d) 178 at 181 (Q.B.), the Master had this to say about new material in an affidavit in reply:
 
[13]…the moving party must include in their initial affidavit all the facts they intend to rely on in support of their motion.  They can file a second affidavit to reply to any new matter raised in the responding party’s affidavit.  “New matter” does not mean a new fact relating to an area or issue already raised by the moving party; it means a new area or issue that was raised for the first time by the responding party. (Underlining mine)

14.	In Lotz v Lotz 2012 MBQB 57(CanLII) at [22], the Court stated:

The purpose of a reply affidavit is not to reiterate one’s position; it is to reply to new matters.  Raised for the first time does not mean a different view on an area or issue already raised by the moving party.  It means a new area or issue entirely.

15.	The Defendant says in paragraphs 8 – 10 of his answering affidavit that he has paid off all rental dues to Housing Authority, and town rates to Nasinu Town Council on the express undertaking by the Plaintiff to transfer an undivided half share of the said property to him and his family.  

16.	In reply to these paragraphs, the Plaintiff avers in paragraph 7 that she had sent money to the Defendant for him to maintain her property and also to pay town rates to Nasinu Town Council and ground rent to Housing Authority even though he was required to pay these.  She also denies having undertaken to transfer an undivided half share to the Defendant, admitting that she had in early 2013, decided to give a one third share each to her two brothers, retaining a third for herself.

17.	I do not consider the Plaintiff has raised new matters in respect of the payment of town rates and ground rent or in respect of the third share for the Defendant.  These were matters first averred by the Defendant himself, and properly replied to by the Plaintiff.  

18.	The Defendant also alleges that the Plaintiff has included new material by saying in reply that she had withdrawn only because he had failed to pay the capital gains demanded by FIRCA.  A perusal of the affidavits shows this to be the Plaintiff’s reply to paragraph 14 of the Defendant’s affidavit where he states that once he had updated the property with repairs, the Plaintiff resiled from her undertaking to transfer the undivided half share to him.  

19.	There is nothing objectionable in the Plaintiff’s reply.  She was in fact responding to the Defendant’s allegation as to the reason why she had withdrawn her undertaking to a transfer of a portion of the land to him.  

20.	Finally, the Defendant objects to that part of the Plaintiff’s reply which states that he had agreed to vacate the property.  I agree with the Defendant that in deposing this in the reply affidavit, the Plaintiff has introduced new material not raised in either the affidavit in support, nor in the Defendant’s affidavit in opposition.  

21.	On the introduction of new evidence in a reply affidavit, the Court in Faber v Nazerian [2013] ZAGPJHC (15 April 2013) at 22 referred to the general rule that an applicant’s case was to be made in the founding affidavit and not in the reply.  The Court cited Body Corporate, Shaftesbury Sectional Title Scheme –v- Rippert's Estate and Others2003 (5) SA 1 (C)) where it was held that notwithstanding the general rule above, the Court had a discretion to permit new material in the reply affidavit where special circumstances existed, such as where the applicant 

…could not have known of such issues at the time of deposing to the founding affidavit.  In other words, the Court will not permit or will strike out new issues raised in a replying affidavit if the applicant knew or ought to have known of the existence of such issues but failed for whatever reason to raise them in the founding affidavit.  

22.	In this case, no exceptional circumstances exist to warrant the Court exercising its discretion to permit into evidence this portion of the Plaintiff’s affidavit in reply.  A further affidavit from the Defendant is therefore unnecessary.

23.	Having considered the Defendant’s application for leave to file a further affidavit, I am not satisfied that there has been shown any ground to warrant such an order. The application is accordingly refused.

On discovery
24.	Order 24 rule 3 of the High Court Rules 1988 provides:

(1)	Subject to the provisions of this rule and of rules 4 and 8, the Court may order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party.

(2)	Where a party who is required by rule 2 to make discovery of documents fails to comply with any provision of that rule, the Court, on the application of any party to whom the discovery was required to be made, may make an order against the first-mentioned party under paragraph (1) of this rule or, as the case may be, may order him to make and file an affidavit verifying the list of documents he is required to make under rule 2 and to serve a copy thereof on the applicant.

(3) 	An order under this rule may be limited to such documents or classes of document only, or to such only of the matters in question in the cause or matter, as may be specified in the order.

25.	The objects of the rule are:

(a)	to enable a plaintiff to apply for discovery against a defendant in a running-down action where some issue calls for discovery…;
(b)	to enable a party to apply for discovery by list, or for an order for an affidavit verifying a list, against a party who has not fulfilled his obligations under r.2;
(c)	to enable a party to an originating summons to apply for discovery, which will now be ordered if facts are in issue (The Supreme Court Practice 1999, page 451)

26.	Though discovery is automatic under Order 24 rules 1 and 2 for actions commenced by writ, Order 24 rule 3 provides that an order for discovery is required in actions started by originating summons.

27.	In support of the application for discovery, Mr. Singh relies on Wati v Channan Civil Action No. HBC 71 of 2011 where the Master cited the following comments of the Court in Patel v Reddy 1982] FijiLawRp 18; [1982] 28 FLR 134 (30 July 1982):

These are matters peculiarly within the knowledge of the appellant. Yet he asks the Court to accept a bare allegation in one paragraph of an affidavit, that no consent was given. We consider the summary procedure under section 169 quite unsuitable for such a matter. The respondent, having been called upon to show cause why he should not give up possession, did so by showing that he was a tenant of the premises. The appellant then seeks to plead that the tenancy which he himself granted was illegal, null and void. He seeks to take advantage of his own wrong. In such a situation the onus is upon him to establish his case, plead the facts he relies upon and be subject to such matters as discovery and interrogatories. The respondent is obviously entitled to the benefit of a full investigation of facts and law, for which, in the particular circumstances, we find the summary procedure inappropriate. There are earlier cases in which this Court has reached a similar conclusion; they were referred to in Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal 39/1972 - unreported) quoted in Vallabh Das Premji v. Vinod Lal and Others (Civil Appeal No. 70/1974-unreported).

28.	Patel (supra) concerned a tenancy and the validity of the notice to quit.  The Plaintiff had relied on one paragraph of an affidavit to say that the consent of the (then) Native Land Trust Board had not been obtained.  

29.	It is not clear from the judgment whether the Court meant discovery and interrogatories in the proceedings then before it, or subsequently in a writ action, given that it was clearly of the view that summary proceedings there were inappropriate in the circumstances of that case. 

30.	I have considered the nature of proceedings by way of summons under section 169 of the Land Transfer Act, the provisions of Order 24 rules 3 and 8, the affidavit material before me, as well as counsel’s submissions. I am of the view that a summons to show cause under section 169 is not amenable to the discovery provisions of Order 24 rule 3.  I say this not only because the objects of the rule make it clear that it applies only to causes or matters begun by writ or originating summons. (see The Supreme Court Practice 1999, supra)  The Plaintiff’s application for ejectment on the other hand, is by way of summons under s. 169 of the Land Transfer Act.

31.	In addition, the Rules do not contain any provision for discovery in respect of a summons under s. 169 of the Land Transfer Act.  Nor does the Land Transfer Act, Part XXIV of which gives the High Court a special jurisdiction, contain any provision for discovery.  

32.	In ordinary proceedings by writ or originating summons, the ordinary rules of discovery such as those in Order 24 apply.  However, a section 169 summons is brought under a “special jurisdiction” under the Land Transfer Act and is governed by special rules under sections 169 – 172, which make no provision for discovery.  In my opinion, the application for discovery should be dismissed. 

33.	I turn now to the Plaintiff’s summons under section 169.

34.	It is clear from the material before me that the Plaintiff brings the application under section 169 (a) of the Land Transfer Act as the last registered proprietor.  I have perused the copy of the title annexed to the affidavit in support and am satisfied that she is the last registered proprietor, with standing to bring this application for vacant possession.  

35.	That being established, the onus then shifts to the Defendant to show cause why he should not be made to give up possession to the Plaintiff.  He must satisfy the Court that he has a right to possession of the land.  

36.	In this, the Defendant says that the Plaintiff had undertaken to transfer a half undivided share of the property to him and that he has maintained the property, paid for repairs, town rates and Housing Authority rent, in reliance on the said undertaking.  He annexes to his affidavit copies of invoices and receipts for the purchase of timber, tiling and building materials for house repairs.  Also annexed are copies of receipts and invoices from the Housing Authority and the Nasinu Town Council for payment of ground rent and town rates for the property, as well as correspondences from his lawyers to Messrs. Sherani & Company, requesting his file on the transfer matter.  A copy of an invoice dated 02/04/13 from Sherani & Co. in respect of the transfer of the property in favour of the Defendant and one Jitendra R. Singh is also exhibited.  

37.	The Plaintiff does not dispute that she had agreed to transfer part of the land to the Defendant and another brother, but says that she had sent monies for the Defendant to pay for rent and town rates.  She contends that she had withdrawn her offer to transfer part of the land to the Defendant after he refused to pay for the capital gains tax.  

38.	I consider that the Defendant has shown to the Court’s satisfaction the existence of some right to occupy the land.  It is clear from paragraphs 10 – 14 of his affidavit in opposition that he is raising a defence of promissory estoppel, in equity.  The evidence adduced is capable of supporting the existence of such a right.  Establishing a right to possession based on promissory estoppel has been held to constitute sufficient cause under section 172. (See Singh v Mishra Civil Action No. HBC 26 of 2013) 

39.	I bear in mind that he is not required to provide “final or incontrovertible proof”, and it is sufficient if there be “some tangible evidence” going to the establishment of a right...” (MH Ltd v Liaquat Ali, supra) I am satisfied that that is the case here.  Clearly, there are triable issues which render the summary proceedings under section 169 of the Land Transfer Act inappropriate.  

Conclusion
40.	The Defendant has not been able to show that an order for leave to file a further affidavit or for discovery ought to be made.

41.	As to the Plaintiff’s summons for ejectment, the Court is satisfied that there is some tangible evidence supporting the existence of a right to occupation on the part of the Defendant.

Order:
1.	The Defendant’s application for leave to file a further affidavit and for discovery is refused.
2.	The Plaintiff’s summons under s. 169 is dismissed.
3.	Parties to bear their own costs.

S.F. Bull
Acting Master