Ram v Chand [2017] FJHC 233; HBC335.2015 (28 March 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 335 of 2015

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

BETWEEN: SHIU RAM of 74 Norman Street, Prospect 2148, Sydney, Australia, Retired.

PLAINTIFF

AND: ARVEEN CHAND of Korociriciri, Nausori.

1^ST DEFENDANT

AND: RAM HARAH of Korociriciri, Nausori.

2^ND DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Ms. Swastika Narayan - for the Plaintiff

Mr. Pita Niubalavu - for the Defendant

Date of Ruling: 28^th March, 2017

RULING
(Application seeking Vacant Possession pursuant to
s169 of the Land Transfer Act Cap 131)

INTRODUCTION

1. The Plaintiff by his Originating Summons dated 16th October, 2015 is seeking immediate vacant possession of the property comprised in NLTB Reference No 4/14/11715 described as Nasoqela No. 29 (part of), Lot 5 in the Tikina of Namata and in the Province of Tailevu, having an area of 1970m² (subject of survey) of which the Plaintiff is the legal owner.
2. There are 3 (Three affidavits filed before the Court:
   1. Affidavit in Support of Shiu Ram filed on 16^th October, 2015 (“Plaintiff’s Affidavit”);
   2. Affidavit in Opposition of Arveen Chand and Ram Harakh filed on 12^th February, 2016 (“Defendant’s Affidavit In Opposition”); and
   100. Affidavit in Response of Shiu Ram filed on 18^th April, 2016 (“Plaintiff’s Affidavit”).

PRACTICE and PROCEDURE

3. The Plaintiff has made his application pursuant to Section 169 of the Land Transfer Act 1978, Cap 131.
4. A Section 169 application is a summary procedure for possession which enable various categories of persons to call upon a person in possession of a property to show cause why he or she should not give up possession. One such category, specified in paragraph (a) of the section is ‘the last registered proprietor of the land’. (The Plaintiff falls under this category).
5. Pursuant to Section 172 of the Act, the onus is on the Defendants to show cause why they are refusing to give up possession to the Plaintiff and why an order for possession should not be made against them.
6. The Plaintiff is the registered owner is a Lessee in this instance. The term “Lessee” is defined as proprietor of a lease or sub lease in the Land Transfer Act. Hence the term “Lessee” follows within the ambit of the Section 169 application.
7. “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.”

8. Pursuant to section 172 of the Act the onus is on the Defendants to show cause why they refuses to give up possession to the Plaintiff and why an order for possession should not be made against them.

ANALYSIS AND DETERMINATION

9. The First question for this court to determine is whether the Plaintiff has satisfied to this Court the pre-requisites of section 169 and 170 of the Land Transfer Act, Cap 131.

If, the answer to the above question is in affirmative, then the burden shifts to the Defendants where they are required to show cause in terms of their right to remain on the Plaintiff’s property and whether the Defendants have any arguable case before this Court, in terms of s.172 of the Land Transfer Act Cap 131?

10. 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)

11. In this case, the Plaintiff must first comply with the requirements of section 169 of the Land Transfer Act cap 131, which are stated hereunder as follows:
    
    • (a) The first requirement or the first limb of section 169 is that the applicant must be the last registered proprietor of the subject land.
    • (b) The second is that the applicant be a lessor with power to re-enter where the lessee or tenant is in arrears; and
    • (c) The third is where a lessor against a lessee or tenant where a legal notice has been given or the term of the lease has expired. The second and third limb of section 169 does not appear to apply in that the defendant is not the plaintiff's tenant who is in arrears and/or the term of the lease has expired.

(Underline for emphasis)

12. In the instant case, the first limb of s169 applies. However, the Defendants neither admit nor deny the fact whether the Plaintiff is the registered proprietor of the property mentioned hereinabove at paragraph 1.
13. Upon the perusal of the Plaintiff’s and the Defendant’s annexures marked ”A” and “F” within their respective affidavits filed herein, there cannot be any dispute that the Plaintiff in fact is the registered proprietor for the Agreement to Lease issued to him on 18^th November, 2013 effective 01^st January, 2012 for a period of fifty (50) years lease.
14. It has now become appropriate that I make reference to Section 18 of the Land Transfer Act, Cap 131 which stipulates as follows-

Instrument of title to be evidence of proprietorship

18. Every duplicate instrument of title duly authenticated under the hand and seal of the Registrar shall be received in all courts as evidence of the particulars contained in or endorsed upon such instrument and of such particulars being entered in the register and shall, unless the contrary be proved by the production of the register or a certified copy thereof, be conclusive evidence that the person named in such instrument or in any entry thereon as seized of or as taking an estate or interest in the land described in such instrument is seized or possessed of such land for the estate or interest so specified as from the date of such certificate or as from the date from which such estate or interest is expressed to take effect. (Underline mine for deliberation)

15. A careful reading of Section 18 hereinabove makes it very clear that every duplicate and/or copy of title needs to be endorsed with a seal of the Registrar of Titles and can then only be admitted to prove as conclusive evidence unless the Register is produced into Court to prove the Instrument and/or a certified true copy of the Title/Lease is filed with the Court.
16. The Agreement for Lease (Residential purposes) in the present case filed by the Plaintiff seeking an eviction order is neither signed, under the hand and seal of the Registrar nor it is certified as a True Copy of the Original Agreement for Lease in terms of Section 18 of the Land Transfer Act, Cap 131. The Counsel representing the Plaintiff whilst arguing her case did admit that she has not complied with Section 18 of the Land Transfer Act but submitted that the Agreement for Lease filed by the Defendant’s within their Affidavit In Opposition was sufficient compliance to admit the Agreement for Lease to prove into evidence and grant the order for eviction as sought by her. Again the Agreement for Lease within the Defendants Affidavit is also a copy and not certified as a true copy of the original. Therefore, the defect in the Plaintiff’s case cannot be cured by the usage of the Defendant’s copy Agreement for Leased annexed within their affidavit.
17. Going one step further, since the Agreement for Lease cannot be admitted into evidence then the Court will not be able to ascertain the legal Registered Proprietor which is the first requirement in terms of Section 169 of the Land Transfer Act, Cap 131.
18. In the circumstances, the Plaintiff’s case is fatal and cannot be taken any further to determine the substantive issue of Vacant Possession.
19. Counsels and litigants must always ensure that they file applications within the ambits of the Rules and Laws and are in compliance of every procedure set down by the Rules and Laws so that the Courts are able to deal with their applications in an expeditious, just and fair manner.
20. In Conclusion, for the aforesaid rational ,I have no other alternative but to make the following final Orders-

FINAL ORDERS

1. The Plaintiff’s Originating Summons seeking immediate vacant possession of the property comprised in NLTB Reference No 4/14/11715 described as Nasoqela No. 29 (part of), Lot 5 in the Tikina of Namata and in the Province of Tailevu, fails and is hereby Dismissed.
2. The Plaintiff is ordered to pay costs to both Defendants summarily assessed at $750 and the same to be paid within 14 days.

Dated at SUVA this 28^TH day of MARCH, 2016

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

Master of High Court, Suva

cc: Diven Prasad Lawyers, Suva.

Oceanica IP, Suva.

Plaintiff’s Case

21. The Plaintiff’s Affidavit filed in this case deposed as follows:
    
    • (i) That he is the registered proprietor of the property comprised in Agreement to Lease – Native Lease No. 4/14/11715, Nasoqela No. 29 (part of) Lot 5, Namata, Tailevu, being subject to this litigation (Annexed hereto and marked annexure “A” is copy of the Agreement to Lease.
    • (ii) That on or about 11^th February, 2013 the First Defendant namely Arveen Chand and he entered into Sale and Purchase Agreement whereby the said Arveen Chand agreed to purchase the property as described in paragraph one herein (hereinafter referred as the said property) for the sum of $20,000.00. (Annexed hereto and marked annexure “B” is copy of the Agreement.
    • (iii) That the 1^st Defendant agreed to settle the property transfer within 90 days the date he signed the said agreement. He further agreed with the 1^st Defendant that in the event settlement could be effected within 90 days then he will pay $200.00 per month as rental until such time settlement is effected. Reference is made to clause 10.1 in the said agreement.
    • (iv) That after the execution of the said agreement the 1^st Defendant requested if he could move into the dwelling house on the said property since transfer will be done within 2½ months for which he agreed as the 1^st Defendant assured him that his finance was all arranged and there was nothing to worry about.
    • (v) That after the execution f the said agreement the 1^st Defendant requested if he could move into the dwelling house on the said property since transfer will be done within 2½ months for which he agreed as the 1^st Defendant assured him that his finance was all arranged and there was nothing to worry about.
    • (vi) That after expiry of 2½ months the 1^st Defendant failed to honour the said agreement and he then asked him to pay rent as per clause 10.1 in the said agreement and will wait until he is ready to effect transfer. The 1^st Defendant again gave him assurance that transfer will be effected within few days.
    • (vii) That the 1^st Defendant continued to reside in the said dwelling house and did not pay any rent. I he then gave Power of Attorney to his son Ratnesh Sharma to deal with the 1^st Defendant and either get the transfer effected or vacate him. He then travelled to Australia due to health reasons.
    • (viii) That the 1^st Defendant failed to pay any rental after expiry of 90 days and when asked by his son to vacate the premises he refused to do vacate and instead became very abusive towards his son.
    • (ix) That his son Ratnesh Sharma informed him that 1^st Defendant has refused to vacate and since he had to migrate to New Zealand he need to look for someone else o help him evict the 1^st Defendant. He then sought help from his grand children in Fiji who informed him that the 1^st Defendant and his father (2^nd Defendant herein) were residing on the said property and refused to vacate.
    • (x) That due to his health reasons he could not travel to Fiji and the 1^st and 2^nd Defendants continued to reside and enjoy his property without paying any rental whereas he had to pay lease every year.
    • (xi) That since March 2013 he was unable to travel to Fiji due to ill health and only in 2015 when he was able to be mobile travelled to Fiji with his daughters to try to sort out the property matter. He is 80 years of age and need to resolve issue without delay as his health is not very good.
    • (xii) That he came to Fiji in June 2015 and sought legal help from Diven Prasad Lawyers who advised him the option of eviction proceedings in High Court or complaint to Police that the Defendants are illegal occupiers and ought to be charged for trespass. His said lawyers then issued a notice to the Defendants and also sought assistance from Nausori Police. (Annexed hereto and marked annexure “C” is copy of the said letters).
    • (xiii) That he also went to Itaukei Land Trust Board (after his said lawyers asked him to do) and complained about the Defendants and they also gave letter to his said lawyers that he had the right to remove the Defendants. (Annexed hereto and marked annexure “D” is copy of the said letter).
    • (xiv) That he personally visited the Defendants sometime between 10 to 11^th June, 2015 and requested them to vacate his land as he is old and do not need to go through this stress but they both told him that do whatever but they will not vacate. He does not want any trouble and decided to take court proceedings.
    • (xv) That he then instructed his lawyers in July 2015 to proceed with legal action and he advised that Notice to vacate was served to Defendants on 6^th August 2015. (Annexed hereto and marked annexure “E” is copy of the said Notice).
    • (xvi) That the Defendants have refused to abide by the notice continues to live rent free and have no means to purchase the said property. The 1^st Defendant fraudulently executed the Sale and Purchase Agreement knowing that he did not have monies to effect transfer and it was his intention to occupy the said property after signing the agreement and to defraud me. The 1^st Defendant knew that I was not well and would be travelling to Australia hence it was his ploy to enter into the said agreement.
    • (xvii) That the Defendants consistent failure to abide by the notices and vacate the premises in a timely amicable manner over a long duration has resulted in undue loss of economic benefits and the unnecessary incurrence of legal costs.
    • (xviii) That the Defendants do not have any legal right to stay or occupy the said property as there is no valid lease agreement in place and the Defendants have to vacate the Plaintiff’s property.
    • (xix) That he prays to this Honourable Court to order that the Defendant to give immediate vacant possessions of the said premises.
    • (xx) That he also seek costs of this application from the Defendants.
      

Defendant’s Case

22. The Affidavit in Response deposed by the Defendant states as follows:
    • (i) That he is the person named and described as the 1^st Defendant in the within action and he is duly authorized by the 2^nd named Defendant, his father to make this on his behalf.
    • (ii) That he deposed to the facts which are within his knowledge save and except where it is stated to be on information and belief, he verily believe that matter deposed are true and accurate to the best of his knowledge, information and belief.
    • (iii) He has read the Affidavit of Shiu Ram filed on 16^th October, 2015 and respond to the same as follow.
    • (iv) That in response to paragraphs 1 and 2 of the said Affidavit he neither admit nor deny the same as he has no knowledge of the same.
      

RIGHT TO POSSESSION & ARGUABLE DEFENCE

(v) That in response to paragraph 3, save to admit that he resides with his family on the land comprised in ITLB No. 4/14/11715 described as Nasogela No. 29 (Part of) Lot 5 in the Tikina of Namata and Province of Tailevu, he denies the rest of the paragraph and state that he has been residing on the said land for the past 7 years.
(xxi) That he was renting the property of the Plaintiff with the agreed rental of $120.00 per month from 2008 and in 2009 the Plaintiff through his Power of Attorney son Ratnesh Sharma started negotiating with him to buy their land. (Annexed hereto and marked annexure “A” are copies of receipts as confirmation of the rent paid).
(vi) That on or about 30^th November 2009 the Plaintiff offered to sell his property for $8,000.00 and further stated that remaining term of lease for TLTB Ref 4/14/11715 was only 2 years and as such he agreed to buy the land for $8,000.00 and made a deposit of $2,000.00. (Annexed hereto and marked annexure “B” is copy of the receipt being for the purchases of the land).
(vii) That the Plaintiff and he did not engage in any written agreement since the lease period remaining for the land was less than two years therefore he agreed to engage in a verbal agreement and a deposit of $2,000.00 was made by me and he agreed to receive the balance sale amount of $6,000.00 when the new lease was issued and he also agreed that the monthly rental between the Plaintiff and myself will be cancelled until the settlement for the sale of property is finalised.
(viii) That prior to this, when he moved in the premises of the Plaintiff, it came to their attention that the water supply to this property is terminated and that the water bill arrears to this property is $4,741.56, however, the Plaintiff requested him to pay the said amount and promised to reimburse the full amount on the day of settlement and based on his promise he made arrangement with the Fiji Water Authority and made a first payment of $790.00 and instalments of $200.00 hereafter until the amount was made in full. (Annexed hereto and marked annexure “C1” is the copy of the reconnection invoice and arrangement and “C2” are the respective receipts).
(ix) That while they stayed in the property, the Plaintiff and his son who was the holder of the Power of Attorney migrated and as such he was kept in dark about the renewal of the lease of the said property and about the final settlement and he kept awaiting response from the Plaintiff to effect settlement over the said property.
(x) That on or about 2013 the Plaintiff offered him to purchase and he enter into a new Sale and Purchase Agreement with the consideration amount of $20,000.00.
(xi) That since he had made massive improvement to the land and the property and had paid for maintenance and outstanding water bills and electricity bills, he accepted the offer and entered into a new Sale and Purchase Agreement for a consideration sum of $20,000.00. (Annexed hereto and marked annexure “D” is the copy of the Sale and Purchase Agreement).
(xii) That after he had entered and executed the said Sale and Purchases Agreement in Diven Prasad Lawyers, he was advised by the Plaintiff’s lawyers Messrs Diven Prasad Lawyers that they would provide a copy to him once the Plaintiff has executed before an Notary Public in overseas which has not eventuated to-date.
(xiii) That after he had executed the Sale and Purchases Agreement, they were advised by the Plaintiff and his solicitors Messrs Diven Prasad Lawyers that the Lease Agreement for the land described as TLTB Ref 1/14/11715 has expired and that the Sale and Purchases agreement executed between the Plaintiff and he will be valid unless and until the Lease Agreement is renewed for another term and that the settlement will be effected as soon as the lease is renewed and based on the verbal promise by the Plaintiff and their solicitors, he continued to improve the property.
(xiv) That after the Sale and Purchases agreement was executed, he reminded the Plaintiff and their solicitors that a deposit of $2,000.00 has been paid on 30^th January 2009 which must remain as deposit for the said land and also reminded that the water bill arrears for sum of $4,741.56 paid by him must also act as a deposit for the said land which were agreed accepted by the Plaintiff and his solicitors.
(xv) That thereafter he also paid the land rent for the year 2014 valid until June 2015 on instructions from the Plaintiff and he assured that the rental payments for the land will expedite the process of renewal of lease. (Annexed hereto and marked with the letter “E” is the copy of the receipt from iTaukei Land Trust Board).
(xvi) That after he had executed the Sale and Purchases agreement, they also carried the valuation of the said land on 14^th August 2014 and after the valuation was completed they were advised by the Valuer that the pegs located some 2 metres into their existing residence. After they were informed by the Valuer, they immediately advised the iTaukei Land Trust Board and the Plaintiff to look into all the pegs into adjourning to he said property, however, the ILTB confirmed that the pegging was not as per the agreement between the Plaintiff and the ILTB this would have further resulted in demolishing 5 metres of the current dwelling. (Annexed hereto and marked with the letter “F” copies or receipt of the payment to the Valuer and a copy of the Valuation Report).
(xvii) That they also informed he Plaintiff to liaise with the ILTB and adjust the pegs and advise the accordingly in order to effect settlement.
(xviii) That the Plaintiff with the help of the TLTB adjusted the pegs of the property on 3^rd June 2015and on 5^th June 2015, the Plaintiff served a letter from Diven Prasad Lawyers stating that they are the illegal occupier and trespasser of the Plaintiff’s land and instructed them to vacate the said land immediately. (Annexed hereto and marked with the letter “G” is the copy of the letter from Diven Prasad Lawyers addressed as “Police Assistance-Illegal Occupier and Trespasser”).
(xix) That they continued to reside in the property despite receiving the letter from their solicitors since they are the intended buyers of the said property as per the Sale and Purchases Agreement.
(xx) That they are of the impression that the settlement will be effected once he Renewal of lease is granted and such they are holding on with the settlement amount which will be released on the settlement date.
(xxi) That they have been at all material time been ready, willing and able to full all their obligations under the said agreement to complete the transfer of the property from the Plaintiff to them.
(xxii) That he is advised that the land does not belong to him which he is aware of and acknowledge the same, however, he has been living on this land for past 7 years, have worked, maintained and developed it and today the value of the land has gone up.
(xxiii) That the Plaintiff family ought to compensate him for his labour and invest carried out on their property and he will move out and get a place of his own to live but as to date he do not have anywhere to go and the payment in compensation will help him.
(xxiv) That he has acquired as equitable interest on the said land and he will be totally prejudiced if the Plaintiff is allowed to evict him and his family as he will loose all his investments.
(xxv) That he verily believes that the Plaintiff does not have a defence to this claim.
(xxvi) Therefore the application filed by the Plaintiff seeking the Defendants to give immediate vacant possession of the property together with the cost shall be dismissed and struck out.
(xxvii) 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."