Boseisala v Prasad [2017] FJHC 541; HBC226.2016 (19 July 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 226 of 2016

AND IN THE MATTER of an application made pursuant to Section 169 of the Land Transfer Act.

BETWEEN : LANIETA BOSEISALA of 205 Queen Elizabeth Drive, Nasese, Suva in Fiji, Domestic Duties.

PLAINTIFF

AND : SHALENDRA PRASAD and JYOTIKA BHAN both of Waituri in Nausori.

DEFENDANTS

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Mr. Devenesh Sharma - for the Plaintiff

Ms. P. Lal - for the Defendant

DATE OF RULING: 19^th July, 2017

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

1. INTRODUCTION
   

1. The Plaintiff filed this application seeking the following reliefs:
   • (a) That the Defendants do show cause why an Order for immediate vacant possession should not be made against the Defendants for any further occupation of the Plaintiff’s property and described as iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori in Fiji;
   • (b) That an Order that the Defendants or their servants or agents do forthwith deliver immediate vacant possession of the property described as iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori in Fiji;
   • (c) That the Defendants be ordered to pay costs of this application to be assessed summarily by the Court.
     
2. The Plaintiff relies on the Affidavit in Support of Lanieta Boseisala deposed on 01^st September, 2016.
   
3. The application is made pursuant to Section 169 of the Land Transfer Act, Cap 131.
4. The Defendants lodged their Affidavit in Opposition deposed on 17^th May, 2017 out of time and the Registry did not file and issue the same. Since it was not issued and served, the Plaintiff was not at liberty to file any reply.
   
5. This case proceeded to hearing on a defended basis and both parties to the proceeding were represented by Counsels 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 ss. 169, 171 and 172 of the Land Transfer Act [Cap 131].

Plaintiff’s Case

7. In summary the Plaintiff in his Affidavit states as follows-
   • (a) That the Plaintiff is the last registered Lessee of iTaukei Lease No. 30509, Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori (“the said property”) and therefore she is authorised to depose to this Affidavit.
   • (b) That she acquired the Lease on 21^st June 2013. A certified true copy of the said iTaukei Lease No. 30509 is annexed hereto and marked as Tab “LB1”.
   • (c) That she is in the process of transferring her lease to Hong Liu but the registration formalities are still not completed.
   • (d) That the Defendants are in unlawful occupation of her Lease property.
   • (e) That the iTLTB issued a Notice to the Defendants on 17^th July 2014 to vacate the land since they were unlawfully in occupation of iTaukei Lease No. 30509. The iTLTB reference number to her property is 4/14/39290. A copy of the said Eviction Notice is annexed hereto and marked as Tab “LB2”.
   • (f) That at no stage has ever allowed or consented to the Defendants occupying her lease land.
   • (g) That to the best of her knowledge the Defendants are husband and wife.
   • (h) That the Defendants are without her consent in occupation of the land. A photograph of the structure occupied by the Defendants is annexed hereto and marked as Tab “LB3”.
   • (i) That she caused her solicitors to serve an Eviction Notice dated 5^th April 2016 on the Defendants. The said Notice was served personally on both the Defendants on 6^th April 2016 but the 1^st named Defendant acknowledged service by signing a copy of the said letter. A copy of the letter containing the acknowledgement is annexed hereto and marked as Tab “LB4”.
   • (j) That the said Eviction Letter was served on the Defendants by her solicitor’s.
   • (k) That the Defendants were given 30 days to deliver vacant possession but they have failed to do and have refused to vacate the land and are still in occupation of the same. She is advised by her solicitors that the continued occupation and refusal to vacate by the Defendants is unlawful.
   • (l) That she therefore pray to this Honourable Court for an Order that the Defendants do forthwith show cause why an order for them to vacate the said land should not be made by the Honourable Court.
     

Defendant’s Case

8. The Defendant’s Affidavit in Opposition was received by the High Court Civil Registry but was not issued since it was filed out of time.
9. The Defendants were represented by a Legal Aid Lawyer who informed court that the Defendants insisted that the Counsel representing them to defend the Plaintiff’s Application for Vacant Possession. The Counsel informed court that there was no defence herein but because she was insisted by the Defendant’s to defend will therefore proceed. there

THE PRACTICE and PROCEDURE

10. 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.”

11. 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."

12. 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."

(Underlined is mine for emphasis)

13. 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."

14. 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)

15. 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) refers.

16. Under Section 172 of the Act, the judge is empowered to dismiss the summons if the respondent proves to his satisfaction that he 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.
17. It is for the defendant to ‘show cause’ why he is refusing to give vacant possession of the land comprised and described in the iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori in Fiji of which the Plaintiff is the registered proprietor?
18. 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

19. The question for this court to determine is whether the Plaintiff is entitled to the possession of the land comprised and Described in the iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori in Fiji.
20. 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.
21. In this instance, the first limb of s169 applies. The annexure marked ‘LB1’ within the Affidavit in Support of Lanieta Boseisala confirms that Lanieta Boseisala, the Plaintiff in this action is the last registered Lessee of iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori in Fiji Islands .

In this respect, the certified true copy of the iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 shows clearly that the land in question was granted to the Plaintiff on 04^th June, 2013. The Plaintiff for the purposes of section 169 application is the last registered Lessee of the iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464.

22. It is trite law that once the Plaintiff satisfies the court that she is the last registered proprietor or the lessor described under the section 169 (a), (b) and (c) of the Act, the burden shifts to the Defendant to prove that he has a right as to possession.
23. However, the Defendant lodged his Affidavit in Opposition out of time and the Registry did not issue the same.
24. The Legal Aid Counsel representing the Defendant informed Court on the hearing date of the Application that she concedes there is nothing here for the Defendant to defend. She added that the Defendant doesn’t have any right to this property. The Defendant was just insisting the Counsel to represent in spite of non-issuance and filing of the Affidavit of Opposition. The Counsel had no option but to defend the action in absence of any Affidavit in Opposition. She did not make any substantive submissions on the pending issue of Vacant Possession.
25. Further, it is noted from the Court record that after the Defendant made the first appearance in Court on the returnable date of the Plaintiff’s Originating Summons on 11^th October, 2016, they were granted 21 days to file and serve their Affidavit Response to the Plaintiff’s application. Again, on 30^th November, 2016, still he failed to do so, the Defendant was given the opportunity to file his Affidavit. Further four (4) time adjournment was also given and still no Affidavit was filed. It was only on 12^th June, 2017 that the Defendant managed to lodge his Affidavit in Opposition and yet it was out of time and remained unissued.
26. The court record also reveals that the Defendant was granted three (3) adjournments simultaneously to sought out the fact whether the Defendant has any entitled to this property but still he failed to do so. This court could not go any further if the Defendant was not putting in any effort to sort out things with the iTLTB.
27. It is for the Defendant to show cause why he refuses to give vacant possession of the land and must be able to show Court some tangible evidence of his right to the possession of the land, which I find the Defendant has failed to do to the extreme,
28. In absence of any evidence supporting the Defendant’s claim to continue and remain in possession of the Plaintiff’s property fails.
29. The Defendant was served with a Notice to Vacate.
30. According to the Plaintiff, the Defendant continues to occupy and live on the said property and to date is refusing to give vacant possession.
31. I do not find any defence and or evidence that he has any legal or equitable right to continue occupying the Plaintiff’s property. The same has been confirmed to this court by the Defence Counsel also. Further, there is absence of any Tenancy Agreement between the parties to this proceedings as well.
32. I proceed to make the following final orders of this court.

FINAL ORDERS

1. The Plaintiff’s Originating Summons seeking an order for Vacant Possession hereby succeeds against the Defendants;
2. The Defendants to give vacant possession of the Plaintiff’s property comprised in the iTaukei Lease No. 30509 being Lot 1 on Plan TL 1464 known as ‘Matairedi” in Waituri, Nausori in Fiji in one (1) calendar months’ time, on or before 19^th August, 2017 at 4pm;

100. Execution will be suspended till the 19^th August, 2017 at 4 pm.

4. There will be no order as to Cost made against the Defendant since they were represented by the Legal Aid Commission.
   

Dated at SUVA this 19^th day of JULY, 2017

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

Master of High Court, Suva

cc: R.Patel Lawyers Suva
Legal Aid Commission, Suva.