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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 182 of 2018
BETWEEN
SULEMAN ALI aka SULEMAN ALI AZIMULLAH
PLAINTIFF
AND
THE OCCUPIERS
DEFENDANTS
APPEARANCES/REPRESENTATION
PLAINTIFF : Ms J Lal [Neel Shivam Lawyers]
DEFENDANT : No Appearance [Not Represented]
RULING OF : Acting Master Ms Vandhana Lal
DELIVERED ON : 01 November 2018
JUDGMENT
[Order 113 Summary Proceedings For Possession Of Land]
Sometimes in 1989 he moved to Australia authorising his late brother Imman Ali to reside on the property.
Upon the brother’s demise on 6th April 2013, his widow and children occupied the property for 2 to 3 months after which the property was vacant.
He came to Fiji in July 2017 to carry out maintenance of the property and discovered the Defendants were residing on the property without his consent/license or authority.
He cannot verify or confirm their names.
The unnamed occupiers are illegally occupying the property.
Despite service of Eviction Notice dated 17th August, 2017 they continue to occupy the property.
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.
The note further goes on to read:
“The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief f a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by Writ followed by Judgment in Default or under Order 14......
This Order would normally apply only in virtually uncontested cases, or in clear cases where there is no issue or question to try i.e. Where there is no reasonable doubt as to the claim of the Plaintiff to recover possessing the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.”
In Department of Environv Jt v James and others [197All E.R. 629 squatters ters and trespassers are defined as:
“he is one without any colour of right, enters on an unoccupied house or land, intending to stay ther there as long as he can .....” ټ 60;
b/i>There Goulding J. sai. said that:
Another definiefinition of “trespasser” is as set out in Clerk & Lil on Tortsts (15th Ed. 1982) 631:
“A trespassspasser is a person who has neitheht nor permission to enter on premises”.
As was swas said said by Lord Morris of-Borth-Y-Gest in ritish Railways Board v. Hev. Herrington [1972] UKHL 1; [1972] A.C. 877 at 904:
&#The term `erm `trespas8217; is a comprehensive wove word; it covers the wicked and the innocent; the burglar, the arrogant invader of another’s land,walkendly unaware that that he is stepping where he has no rightright to walk, or the wandering child - all may be dubbed as trespassers”.
..................................................................................................
I refer to Sir Frederick Pollock’s statement in the case of Brow Dawson (180;[1840] EngR 898; (1840) 12 Ad. &El 624 624 where he said:
“ A tr A trespasser may in any case be turned off land e he ained possession, and he does not gain possessionssion until there has been something like like acquiescence in the physical fact of ccupation on the part of thof the rightful owner....”
The Occupiers on the land are there without any colour of right and continue to occupy the land despite being served with an Eviction Notice.
The Plaintiff is granted immediate possession of Housing Authority Sub-Lease No. 128100 being Lot 2 on Deposited Plan No. 3390 in the province of Rewa in the city of Suva situated at 134 Milverton Road, Raiwaqa, Suva.
................................
Vandhana Lal [Ms]
Acting Master
At Suva.
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URL: http://www.paclii.org/fj/cases/FJHC/2018/1081.html