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RAFCO Enterprises Ltd v Jang [2017] FJHC 276; HBC02.2016 (13 April 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 02 of 2016


IN THE MATTER of an application under Section 169 of Part XXIV of the Land Transfer Act [Cap 131]
_______________________________


BETWEEN : RAFCO ENTERPRISES LIMITED a limited liability company duly incorporated under the laws of Fiji and having its registered office at 2nd Floor, Narseys Building, 98-100 Ellery Street, Suva.


PLAINTIFF


AND : VERONICA JANG also known as VERONICA TUIGASIALE in illegal and unlawful occupation of State Lease No. 19559 (Residential Lease) being Lot 1 Section 16 on Plan S 603 A. Name of Land: Samabula Indian Settlement, District: Suva, Province: Rewa, comprising a total of 2 road and 26 perches having the street address of 20 Matuku Street, Samabula, Suva.


DEFENDANT


BEFORE: Master Vishwa Datt Sharma


COUNSELS: Mr. Varun Prasad for the Plaintiff

Mr. Bukarau for the Defendants


Date of Ruling: 13th April, 2017


RULING


[Motion to Stay Proceedings pursuant to Court of Appeal Rules 29 (6) and 34 (1) and Order 45 Rule 10 of the High Court Rules, 1988 and Vacant possession pursuant to section 169 of the Land Transfer Act, Cap 131]


  1. INTRODUCTION
  1. Following are two (2) Applications before this Court for determination:
  2. Notice of Motion for Stay filed by the Defendant seeking the following orders-
  3. This application is made pursuant to Order 8 Rule 1 & 2 of the High Court Rules, 1988.
  4. Originating Summons filed by the Plaintiff seeking the following orders:
  5. This application is filed in support of an affidavit deposed by Akcar Ali aka Aktar Ali, deposed and filed on 7th January, 2016.
  6. The substantive application is made pursuant to Section 169 of the Land Transfer Act, Cap 131.
  7. Counsels agreed that both applications be heard together since they were interrelated and strongly opposed the applications for stay of proceedings and vacant possession respectively.
  1. THE LAW
  1. Order 8 Rule 1 & 2 of the High Court Rules, 1988 states as follows-

1. The provisions of this Order apply to all motions subject, in the case of originating motions of any particular class, to any special provisions relating to motions of that class made by these Rules or by or under any Act.

2.-(1) Except where an application by motion may properly be made ex parte, no motion shall be made without previous notice to the parties affected thereby, but the Court, if satisfied that the delay caused by proceedings in the ordinary way would or might entail irreparable or serious mischief may make an order ex parte on such terms as to costs or otherwise, and subject to such undertaking, if any, as it thinks just; and any party affected by such order may apply to the Court to set it aside.

(2) Unless the Court gives leave to the contrary, there must be at least 2 clear days between the service of notice of a motion and the day named in the notice for hearing the motion.

  1. Section 169 of the Land Transfer Act, Cap 131 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.”

C. PLAINTIFF’S CASE


Stay Application:


  1. Defendant’s Stay Application is not only misconceived, it also further demonstrates the scheme and disingenuous attempt she is seeking to make to mislead the Court to the prejudice of the Plaintiff in order to prolong her illegal occupation.
  2. The Affidavit in question deposed by the Defendant is in contravention of Order 41 Rule 8 of the High Court, Rules, 1988. It cannot be read and used in this case since it was signed before the Counsel representing the Defendant hereinbefore.

S.169 Application:

  1. The Defendant has no cause for remaining in illegal occupation of the land.
  2. The Defendant did not furnish/establish any evidence of Consent from the Director of Lands allowing the Defendant to be in occupation in terms of Section 13 of the Crown/States Lands Act.
  3. The Plaintiff Rafco Enterprises Limited is the Registered Lessee of the State Land No. 19559.
  4. The said Lease is a Crown/State Lease and subject to Section 13 (1) of Crown Lands Act [Cap 132}].
  5. The Consent of the Director of Lands sought (S. 13 (1)) prior to the commencement of this proceedings.
  6. The Defendant doesn’t have any Consent to be in occupation.
  7. Notice to Quit was issued and served to the Defendant on 15th October, 2015.
  8. There is no order for stay in any of the other pending related cases.
  9. The pendency of the Civil Case No. 48 of 2001 is no longer a bar to proceedings under S. 169.
    1. DEFENDANT’S CASE

Stay Application:


  1. The Plaintiff acquired Crown Lease No 755 being Lot 1 Section 16 of Plan 603 A. known as Samabula Indian Settlement in the District of Suva in the Province of Rewa having an area of 2 Roads 26 Perches at 20 Matuku Street, Samabula, and Suva on 13th January 1987.
  2. Around May 1987 after the first Military Coup, Crown Lease No. 755 (the “Subject Land”) was leased by the Director to the Plaintiff who has stayed there now for almost 30 years.
  3. Crown Lease No. 755 expired on 9th December 2013.
  4. Prior to the expiry of Crown Lease No. 755, there were numerous dialogue and correspondence made by Defendant with the Director of Lands re acquisition of the subject land; and she was reassured that she was going to be leased he same.
  5. An amendment of the Land Sales Act Cap 137 introduced by the new Fiji Parliament in 2014 known as the Land Sales (Amendment) Act 2014 was passed introducing the new section 7 A which made unlawful the sale of lands within city and town boundaries to foreigners.
  6. Defendant maintains that Rafco Enterprise Limited is a foreign company because its controlling shares are now owned by shareholders who had become New Zealand Citizens.
  7. On 17th August 2015 twenty months (20 months) after the Lease of the subject land had expired, the Director of Lands as Lessor purportedly executed a new lease in favour of the 2nd Defendant of the Subject Land. The new State Lease number given was State Lease No. 19559.
  8. Defendant institutes proceedings that the issue of the lease to the Plaintiff herein is contrary to s7A of the Land Sales Act (Amendment) 2014 and these has resulted in a range of proceedings in the Courts.

Section 169 Application:

  1. Defendant submits that because the Plaintiff has shown that he has lease of the subject land, the Defendant now needs to show cause under section 172 as to why she should not give up possession to the Applicant. Notwithstanding the above we shall also show that the nature of the interest held by the Plaintiff is voidable.
  2. Defendant submits she should NOT be evicted because :
    1. She has an equitable interest in the land as a competing applicant.
    2. The Plaintiff has a voidable title because the leasing by Director of Lands to the Plaintiff was made contrary to law in that it was contrary of section 7A of the Land Sales (Amendment) Act 2014.
    1. The Director should be made party to these proceedings because what is being argued is leasing process.
    1. The Defendant has an arguable case – Parallel matters before judge this abbreviated proceedings should be withheld until the pivotal issue of ownership is resolved by the judge.

ANALYSIS and DETERMINATION

  1. There are two (2) Applications for determination-
  2. The Plaintiff’s contention all along is that the Court should not grant any Stay Order as sought by the Defendant and allow the Vacant Possession Order in terms of Section 169 application as submitted in terms of his written submissions.
  3. The Defendants contention is that because the Lease is in the hands of the Plaintiff herein in this S. 169 application, the Defendant maintains that the Lease instrument in the hands of the Plaintiff is a voidable instrument because it was issued contrary to the law. The Defendant shall herein show cause that the reason why she should not be evicted from the subject land are;
  4. Both Applications before this Court hinges on the Legal Question and issue ‘Whether the State Lease Instrument No.19559 issued to the Plaintiff by the Director of Lands is a voidable Title issued in violation of Section 7A of the Land Sales [Amendment) Act 16 of 2014?
  5. Section 7A of the Act states-

“Land acquired by non-residents


7A -(1) Notwithstanding anything contained in sections 6 and 7, any State land or freehold land for residential purposes in any area within the boundary of any town or city declared or extended under the Local Government Act (Cap. 125) shall not be sold, transferred or leased to a non-resident.


(2) Any State land or freehold land to which subsection (1) applies may only be sold, transferred or leased to a non-resident for the acquisition of strata or unit title.


(3) Nothing in subsection (1) shall limit or prevent the sale, transfer or lease of any State land or freehold land to a non-resident for—

(a) industrial or commercial purposes;

(b) residential purposes within an integrated tourism development; or

(c) the operation of a hotel licensed under the Hotel and Guest Houses Act (Cap.195).


(4) Nothing in subsection..........


  1. The Land Sales [Amendment] Act 16 of 2014 was assented on 15th December, 2014 and came into force on the date of its publication in the Gazette.
  2. The next Question that comes to mind is “When was the Plaintiff issued with the State Land Instrument No. 19559?
  3. Upon a careful perusal of the State Land Instrument No. 19559, it very clearly reveals that it was issued to Rafco Enterprises Limited [Plaintiff} on 01st Day of January, 2013 at the yearly rental of $900 per annum for a lease period of 99 years.
  4. It is crystal clear now that the Plaintiff was issued with the State Land Instrument No. 19559 prior to the Land Sales [Amendment] Act 16 of 2014 coming into force.
  5. Therefore, I find that the State Land Instrument No. 19559 is not a voidable Title and was issued to the Plaintiff by the Director of Lands within the ambits and as per the requirement of the Law and that there was no violation of Law in terms of Section 7A of the Land Sales [Amendment] Act 16 of 2014. The Plaintiff without any doubt is the Registered Lessee of the State Land Instrument No. 19559 for the purposes of the pending action currently before this Court.
  6. For the aforesaid rational, the Defendant’s application seeking an order to stay the Plaintiff’s S. 169 Application for vacant Possession fails and is accordingly Dismissed.
  7. Now, I will move on with the Section 169 Application filed by the Plaintiff, Rafco Enterprises Limited, seeking an order against the Defendant for an immediate possession of all that piece of land contained and described in and as State Lease No. 19559 (Residential Lease) being Lot 1 Section 16 on Plan S 603 A.
  8. 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 herein).
  9. Pursuant to Section 172 of the Act, the onus is on the Defendant to show cause why she is refusing to give up possession to the Plaintiff and why an order for possession should not be made against her.
  10. No doubt it has been established that 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.
  11. The Burden in terms of Section 172, now shifts on the Defendant to show cause as to why she should not give up possession to the Plaintiff, Rafco Enterprises Limited.

Equitable Interest


  1. The Defendant submitted that she has an equitable interest over property as a sitting tenant for the following reasons:
    1. More important when lease had expired she was reassured by PS and Minster that she would be given the lease.
    2. There is no option to re-new lease in the name of sitting tenant.
    1. Here equitable interest is reinforced by the fact the Director of Lands had lease contrary to section 7A of the Land Sales (Amendment) Act.
    1. Matter of ownership is still before the Court for determination.

Voidable Title

  1. The Defendant says that because of the circumstances surrounding the negligent manner in which the leasing of the subject land was made to the plaintiff, the Director of lands leased the subject land, which is within city area to a company whose shares are majority owned by New Zealand citizen. Plaintiff has been quick to show that his Fiji passport which is still valid, but he has been a citizen of New Zealand since 1985 and under the local laws he should have surrendered his Fiji pass to the Fiji Immigration authorities. He has also not applied for dual citizenship. These issues are to be dealt with in Civil Action 182 of 2016 which is before Judge Hamza. If Judge Hamza is to rule that the section 7A Land Sales (Amendment) Act was contravened in Civil Action No. HBC 182/16 then these proceedings with have been premature.

Director of Lands to be made a Party

  1. The Defendant considers and submitted that the Director of Lands needs to be made a party to these proceeding because there are important issues about the their omission to adhere to section 7A Land Sales Act in the leasing of the subject land to Plaintiff. Were they satisfied that Plaintiff had complied with section 7A at the time of leasing? Were they convinced that he was a Fiji citizen b plaintiff showing his Fiji passport but not revealing that he was also a New Zealand Passport? If they were misled by the assertions of the Plaintiff at leasing that he was a Fiji citizen that the lease is void because it was made contrary to law. Only the Director can make clear these issues. Because he is not a party the Court properly appraised with these issues. In the alternative this matter should await the decision of the court in Civil Action 182/2016.

Analysis in Show Cause

  1. Finally, the Defendant’s submission is that in eviction cases under section 169, to discharge the defendant’s burden under, section 169, she must show cause that she has some right to possession which would preclude the granting of an order for possession. It does not mean that she has to prove conclusively a right to remain in possession. Rather it is enough that she shows some tangible evidence establishing a right or at least supporting an arguable case for such a right. This proposition is supported in Morris Hedstrom Ltd v Liaquat Ali (Action No. 153/67 at page 2). Further we say that it would be procedurally prudent and legally sound that because the matter of the validity of ownership claimed by the Plaintiff is before a superior court, matters proceeded at lower courts should be withheld pending the deliberations of those relevant and connected issues in superior in superior courts.
  2. The Defendant was issued with a Notice to Quit by the Plaintiff’s Lawyers dated 18th September, 2015. Upon receipt of the same, the Defendant’s Solicitors in their letter to the Plaintiff dated 15th October, 2015, did not deny or challenge the contents of the Notice to Quit (Annexure ‘AA8’ refers), rather stated at paragraph 6 that- ‘Accordingly, our client will not vacate the premises until her Judicial Review action is determined.’
  3. The Judicial Review application referenced HBJ 16 of 2015, State –v- Director of Lands, was dealt with by the Court on 21st March, 2016 refusing leave to apply for Judicial Review and dismissing the action accordingly. No subsequent orders for stay or setting aside was either sought or made. This Court is aware of the fact that Civil Action No. HBC 182 of 2016 is impending Decision before the High Court on the Issue of Section 7A of the Land Sales [Amendment] Act 16 of 2014. It is appropriate to say that each case before the Court of Law is determined on its own facts and evidence and if there are related issues then one may make an application for consolidation of proceedings and the same put to both Counsels in this matter but the decision was not to consolidate matters and the Defence Counsel maintained that this application ought to be stayed until the outcome of Civil Action No. HBC 182 of 2015. The Court had no option but to proceed to hearing and deliver its decision accordingly.
  4. In terms of the Defendant’s claim for an equitable interest in the State Land Instrument No. 19559, there is no evidence in support furnished to this Court to show that the PS and the Minister at any time reassured the Defendant of grant of lease and or existence of any impending application seeking approval for a lease upon its expiry and before issuance of the Lease to the Plaintiff. The evidence before this Court currently is that the Plaintiff [Rafco Enterprises Limited] is the registered owner/or Lessee of the said Instrument. This is supported by evidence of a Certified True Copy of the said Lease annexed herewith in the Plaintiff’s Affidavit in Support marked annexure ‘AA 3’.

It is not denied by the Plaintiff that the Plaintiff from time to time let its property to the Defendant for her residential occupation only and at all material times the Defendant was to occupy the same as a residential tenant (paragraph 5 of the affidavit in support refers). The Defendant has also denied signing any Tenancy Agreement. There is evidence of a copy of the Tenancy Agreement executed between the Plaintiff and the Defendant dated 01st July, 2012 annexed within the Plaintiff’s affidavit in support marked annexure ‘AA 4’. (Paragraph 6 of the affidavit in support refers refers).

  1. The Defence raised in terms of the Voidable Title by the Defendant: This Court has hereinabove at paragraph 39, ruled that the State Land Instrument No. 19559 is not a voidable Title and was issued to the Plaintiff by the Director of Lands within the ambits and as per the requirement of the Law and that there was no violation of Law in terms of Section 7A of the Land Sales [Amendment] Act 16 of 2014. The Plaintiff without any doubt is the Registered Lessee of the State Land Instrument No. 19559 for the purposes of the pending action currently before this Court.
  2. If the Defendant considered that the Director of Lands should be made a party to the proceedings, then the Defence Counsel was not at all ignorant of the provisions of Order 15 Rule 4 of the High Court Rules, 1988 which deals with the Joinder of Parties to proceedings with leave of the Court and an application should have been made at its earliest to join the Director of Lands as a party.
  3. In order to discharge the Defendant’s burden under section 169, the Defendant must show cause that she has some right to possession which would preclude the granting of an order for possession. The Defendant does not need to prove that she has conclusively a right to remain in possession. Rather it is enough that she shows some tangible evidence establishing a right or at least supporting an arguable case for such a right. The Defendant has failed to show any cause including the argument that the Plaintiff was issued or grated with the Lease in terms of the State Land Instrument No. 19559 in violation and contravention of Section 7A of the Land Sales [Amendment] Act 16 of 2014. I reiterate that this Court has already ruled that the Lease was not issued in violation or contravention and was not a voidable Title.
    1. In Conclusion, I grant the following orders-

ORDERS


(a) The Defendant’s Motion seeking an order for Stay of Proceedings fails and is hereby accordingly Dismissed.

(b) The Plaintiff’s application seeking an order for recovery of possession succeeds.

(c) The Defendant to give up Vacant Possession of all that piece of Land contained and described in and as State Lease No. 19559 (Residential Lease) being Lot 1 Section 16 on Plan S. 603 A; Name of Land: Samabula Indian Settlement, District: Suva, Province: Rewa, comprising of a total area of 2 rood and 26 perches, in one (1) calendar months’ time on or before 11th May, 2017 at 4 pm.

(d) Execution is hereby suspended till the 11th May, 2017 at 4 pm.

(e) The Defendant is hereby ordered to pay costs to the Plaintiff summarily assessed at $1,000 within the next 14 days.

(f) Orders accordingly.


Dated at SUVA this 13TH day of APRIL, 2017


-------------------------------------
VISHWA DATT SHARMA

Master of High Court, Suva


cc. V. P. Lawyers, Suva

Muskits Law, Suva


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