Debalevu v Musuvanua [2017] FJHC 737; HBC32.2016 (6 September 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 32 of 2016

BETWEEN : SEVULONI DEBALEVU

PLAINTIFF

AND : SAMUELA MUSUVANUA
DEFENDANT

Appearances : Vakaloloma & Associates for the Plaintiff

No Appearance for the Defendant

JUDGMENT

1. This is the Plaintiff’s application for an order requiring the Defendant to give up immediate vacant possession pursuant to Order 113 of the High Court Rules.
   
2. The application is supported by an affidavit sworn by the Plaintiff, deposing that he is the “last registered lessor” of the leasehold property comprised in NLTB No. 4/9/9417, Lease Land known as Mataniikadroka, situated in the Tikina of Labasa. With a loan from the FDB Bank, he had built a house on the property with the intention of renting it out to finance and service the loan repayments. Upon completion of the house, it was rented to the Defendant on a monthly basis without any tenancy agreement or licence. The Defendant made no rental payments, even after repeated requests were made for these. On 29 September 2014, his solicitors served eviction notice on the Defendant requiring him to give vacant possession within one month from the date of service but the Defendant continues to occupy the property. On 16 March 2016, he entered into a Sales and Purchase Agreement with a prospective buyer to sell the property for $80,000. He has given sufficient time to the Defendant to vacate the premises but he continues in occupation without paying rent and without any legal or equitable right
   

The law

3. Order 113 of the High Court Rules provides:
   

Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.

4. In Australasian Conference Association Limited v Mere Sela&Ors Civil Action No. 357 of 2006, Decision on 3 April 2006, Coventry J stated at p. 11:

Order 113, in my judgment, is primarily aimed at people who come onto land as squatters or are given licence which is terminated and then refuse to depart. The envisaged term of occupation in Order 113 is a matter of months or a few years.

5. Proceedings under Order 113 are summary in nature and must be taken only in the clearest of cases. (Kumar v KumarCivil Action No. HBC 157 of 2008L per Inoke J)
   

Analysis

6. The issue for the Court’s determination is whether an order for vacant possession ought to be made against the Defendant.
   
7. In Singh v Chand Civil Action No. HBC 63 of 2010L, Inoke J cited Department of Environment v James and others [1972] 3 All E.R. 629 where Goulding J stated:
   

...where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession...

8. Though the Defendant did not appear at the hearing of this application, I need to consider the material before the Court in deciding whether an order for vacant possession ought to be made.
   
9. The starting point must be Order 113 Rule 1, which states:
   

Where a person claims possession of land which he alleges is occupied solely by a person or persons(not being a tenant or tenants holding over after the termination of the tenancy)...

10. This provision is clear that it does not apply where the person sought to be evicted is a tenant holding over after the termination of the tenancy.The Plaintiff’s evidence is that the property had been “rented to the Defendant on a monthly basis without any tenancy agreement or licence.” It is difficult to see how renting the propertyto the Defendant did not involve an agreement, at least on how much rent to be paid each month, and when it would have fallen due.
    
11. In my view, the fact that the property was rented to the Defendant essentially takes this action outside the scope of Order 113 Rule 1, given that the Defendant was a tenant, holding over after the termination of the tenancy by what the Plaintiff says was an eviction notice.
    
12. Even if I were wrong on this point, I consider that the Plaintiff has failed to prove he has a right to an order for possession. In support of this application, the Plaintiff has annexed to his affidavit a copy of a provisional notice of approval from the TLTB to lease the piece of land known as Mataniikadroka situated in the Tikina of Labasa. The provisional approval was made subject to, inter alia, payment of the estimated survey fee and rent for the first period of 6 months from the date of the provisional approval. The lease was to be for a period of 30 years, from 1 January 1979.
    
13. There are a number of issues with this document. Firstly, it is not, as the Plaintiff alleges, a registered title. It is only a provisional notice of approval for agricultural lease, subject to a number of conditions the satisfaction of which would have entitled the Plaintiff to a final notice of approval. Even if I were to accept the notice of approval as a lease, with the Plaintiff having rights as a lessee in equity as a result^[1], there is, I think the insuperable difficulty of that 30 year lease having expired in 2009. The Defendant has not placed anything before the Court to say that the “lease” has been renewed.
    
14. In Dutton v Manchester Airport [1999] EWCA Civ 596; [1999] 2 All ER 675 at 690, Kennedy J stated:
    

What matters, in my judgment, is that the plaintiff has a right to possession which meets the first of the requirements set out by Stephenson LJ, and the defendants have no right which they can pray in aid to justify their continued possession. If it is said that such an approach blurs the distinction between different types of right and different types of remedy it seems to me that it is the effect of the wording of Ord 113, and the understandable object of the law has always been to grant relief to a plaintiff seeking possession who can rely on a superior title.

15. In the Plaintiff’s case, I am afraid he has not placed before this Court a “superior title” entitling him to an order for vacant possession.
    
16. In Dutton (supra), the Court cited Danford v McAnulty (1883) 8 App Cas 456 at 462 where Lord Blackburn said:
    

...in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against any one, and those who sought to turn the man in possession out must shew a superior legal title to his.

17. These principles were echoed in this jurisdiction in Moto v Nakauta Civil Action No. 262 of 2012 at [7], where Amaratunga J stated:
    

To evict an occupant what is important is not whether the Plaintiff was actually in possession or had any exclusive possession, but Plaintiff should have better title than Defendants.

18. The Plaintiff having failed to show a superior title to evict the Defendant who is in possession, I do not think an order for vacant possession ought to be made.
    
19. The Defendant, though served, and having appeared in Court when this matter was first called, failed to appear at the hearing or to file an answering affidavit. I do not consider a costs order is warranted.
    
20. Final Order:
    
    1. The application for vacant possession is dismissed.
    2. No order for costs.
       

Dated at Labasa this 6^th day of September, 2017

S.F. Bull
Acting Master

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^[1]Chandrika Prasad v Gulzara Singh Civil Action 76 of 1976 per Williams J