Carpenters Fiji Ltd v Tale [2017] FJHC 741; HBC27.2016 (19 September 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 27 of 2016

IN THE MATTERof section 169 of the Land Transfer Act, Cap 131.

BETWEEN : CARPENTERS FIJI LIMITEDa limited liability company having its registered office at Rodwell Road, Suva.

PLAINTIFF

AND : MEREANI TALE of Nakama, Savusavu, Fiji

DEFENDANT

Appearances : Patel Sharma Lawyers for the Plaintiff

Defendant in person

JUDGMENT

Introduction

1. The Plaintiff seeks an order for vacant possession under sections 131 and 169 of the Land Transfer Act, and under Order 113 of the High Court Rules, against the Defendant who is said to be occupying part of its property as described in Crown Grant CG. 932, situated at Nakama (part of) in the district of Savusavu, in Vanua Levu, Fiji.
   

The law

2. Section 131 of the Land Transfer Act provides for the powers of the Registrar of Titles to enter caveats, correct errors in certificates of titles, and, with the approval of the Minister, to destroy documents. It seems this provision has been cited in error as it is irrelevant to these proceedings.
   
3. On the other hand, section 169 of the Land Transfer Act enables certain persons to summon any person in possession of the land to show cause why they should not give up possession to the applicant.
   
4. In a section 169 application for vacant possession, the onus is first on the plaintiff to satisfy the Court that it has standing to institute proceedings against the defendant. It does this by proving it belongs to one or more of the following classes of persons under paragraphs (a) – (c) of the section:
   
   1. the last registered proprietor;
   2. a lessor who has power of re-entry where the lessee is in arrears for a period stated in the lease, or,
   3. where there is no such provision in the lease, a lessor against a lessee who is in arrears for one month, regardless of whether there is sufficient distress on the land to countervail the rent, and whether or not a demand has been made for the rent;
   4. a lessor against a lessee or tenant in a case where a legal notice to quit has been served, or the term of the lease has expired.
      
5. Once the Plaintiff has shown it has standing to bring proceedings under section 169, the onus then shifts to the Defendant to show cause, in accordance with section 172 of the Act, why he refuses to give possession of the land. If he is able to satisfy the court that he has a right to possession, the summons shall be dismissed with costs against the proprietor, mortgagee or lessor. Alternatively, the court may make any order and impose any terms it considers fit.
   
6. In this case, the Plaintiff also places reliance on Order 113 of the High Court Rules which 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.

7. Proceedings under both section 169 of the Land Transfer Act and Order 113 are summary in nature and must be taken only in the clearest of cases. (Tuidraki v Seasea Civil Action No. HBC 148 of 2014; Kumar v KumarCivil Action No. HBC 157 of 2008L)
   
8. Similar to proceedings under section 169, applications under Order 113 requires, first of all, the Plaintiff to show it has a legal right to claim possession of the land. Thereafter, the burden shifts to the Defendant to satisfy the Court that he has a licence, or the consent of the owner or any predecessor of his, to occupy the land. (Ali’s Civil Engineering Ltd v Mala Civil Action No. HBC 81 of 2014; Raliwalala v Kaicola Civil Action No. HBC 114 of 2014; Tamata v Paul Civil Action No. HBC 14 of 2016)
   

Analysis

9. The issue for the Court’s determination is whether the Plaintiff is entitled to an order for vacant possession. The Plaintiff brings this application pursuant to section 169 of the Land Transfer Act, and Order 113 of the High Court Rules. A similar situation existed in Singh v HoitCivil Action No. 370 of 2011, where the Plaintiff had brought an application for vacant possession pursuant to section 169 and Order 113. In Singh (supra), the Master was of the view that it was not proper to bring such an application under the provisions of two distinct laws, such as the Land Transfer Act, and the High Court Rules.
   
10. The facts of this case are very similar to those in HBC 26 of 2016, where the Plaintiff, who claims to be the registered proprietor of the land described in Crown Grant CG. 932, seeks to evict the Defendant whom it says is illegally occupying part of the said property without permission, authority, lease or licence from it.
    
11. The Defendant denies the allegations in the affidavit in support and says she had sought and obtained the approval and permission of the landowners of Yavusa Nakama to stay on and cultivate the land following a presentation of soap, kerosene and material. She says the land was initially grassland used as a rubbish dump and she has converted it to good use by building on it and farming it. She and her family have resided on the land for more than 23 years. She did not receive the trespass notice and notice to quit requiring them to vacate the property and in any event, the notice, if served, is void and of no effect. She prays that the application be struck out with costs.
    
12. From the contents of the affidavits, I am of the view that the Plaintiff’s application, relying as it does on its title, and brought on the basis that the Defendant is in unlawful occupation without permission, authority, lease or licence, should be dealt with under Order 113. As such, the Plaintiff must first prove it has a legal right to bring this application for vacant possession against the Defendant. In doing so, the Plaintiff has annexed what it says is a “true copy” of the certificate of title for Crown Grant CG 932.
    
13. I note that the copy of the title annexed to the affidavit in support of this application, like that in support of applications by the Plaintiff against other Defendants, is a poor copy indeed, being, for the most part illegible, cut off in places, and has left out any indication thereon that it is the certificate of title for Crown Grant CG. 932. With so much resting on establishing the legal right and therefore locus of the Plaintiff to bring these proceedings, the copy of the title furnished leaves much to be desired. That the memorials show the Plaintiff as the last registered proprietor does not necessarily mean that the title is in respect of the property the subject of these proceedings.
    
14. In light of the above, I am not satisfied that the Plaintiff has discharged the onus it carries to show a legal right to bring these proceedings. This being the case, there is no need for the Defendant to prove it has a right to occupy the land.
    
15. Order
    1. The application for vacant possession is dismissed, with costs for the Defendant, summarily assessed in the sum of $800.
       

Dated at Labasa this 19^th day of September, 2017.

S.F. Bull
Acting Master