Dayal v Kumar [2019] FJHC 525; HBC78.2018 (22 March 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 78 of 2018

BETWEEN

BILLY BISUN DAYAL
PLAINTIFF

AND
RAKESH KUMAR
DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Ms. P Mataika [K Law]

DEFENDANT : Mr. T. Sharma [Tirath Sharma Lawyers]

JUDGMENT OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 22 March 2019

JUDGEMENT
[Order 113 Summary Proceedings For Possession Of Land]

1. This is a summary proceeding for possession under the provision of Order 113 of the High Court Rules.
   
2. The plaintiff states he is the registered lessee of the i-Taukei Land comprised in agreement for lease over land known as Waituruturu No. 2, Lot 1 situated in the Tikina of Nausori.
   

Annexure BBDI is the copy agreement for lease between the then Native Land Trust Board [now i-Taukei Land Trust Board] and Billy Bisun Dayal said lease is for a term of 50 years with effect from 01 October 2005.

According to the plaintiff, the defendant is illegally occupying the land and is a trespasser as no consent was obtained from I-Taukei Land Trust Board for him (defendant) to occupy the land.

Later in his affidavit the plaintiff goes on to say the defendant came into the possession of the land upon entering into a hand written agreement wherein the defendant agreed to purchase the land. However no content was obtained from i-Taukei Land Trust Board.

The defendant had failed to comply with the agreement despite several reminders.

He had verbally requested the defendant to vacate but the defendant has refused and/or neglected to do so.

The plaintiff is said to be suffering loss as he is not able to sell the property to genuine buyers was received or action taken by the plaintiff.

Later Home Gain Property Management served him with a Notice to Vacate.

His lawyers responded to the notice.

There is no reasonable cause of action shown by the plaintiff who has failed to honour the sale note.

3. The application is opposed and the defendant on 9 May 2018 filed his affidavit in opposition.
   

The plaintiff was the vendor for a property sale matter. A sale notice was made on 7 June 2011 and executed by the plaintiff.

Thereafter he (defendant) moved into the property and made the first payment of $1, 000.

He further purchased $500 and advised the plaintiff to execute the application for consent to transfer. The plaintiff was in Fiji at the given time but failed to execute the document and returned to New Zealand.

He could not make contact with the plaintiff thereafter.

Despite payments, the plaintiff failed to honour the agreement and did not take any further steps to transfer the property. Hence the defendant stopped further payments.

The plaintiff had decompensated the electricity and water supply to the property.

He is not a tenant but a prospective buyer.

Sometimes on 12 May 2016 Pacific Collection House Limited had served him with a Distress of Rent Notice.

His then lawyers responded to the same [annexure RK3]. No response, not trespasser as parties had entered into an agreement for Sale and Purchase of the properties.

There are allegations that the plaintiff failed to abide by the agreement and act on it and get property transferred.

4. Order 113 of the High Court Rules reads:

“where a person claims possession of land which he or she 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 or her licence or consent or that of any predecessor in title of his or her, the proceedings may be brought by originating summons in accordance with the provisions of this order.”

5. This order provides for recovery of possession of land which is in wrongful occupation by trespassers – The Supreme Court Practice, 1993 Volume 1, notes to Order 113, 1 – 8/1 at p1602.
   

The explanation note further goes on to read:

“The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of 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.”

6. Pathik J. in Baiju v Kumar [1999] 45 FLR 72 had discussed who a trespasser or a squatter is. I shall reproduce the relevant paragraph from the Judgment.

In tment of Environment v Jt v James and others [1972] 3 All E.9 squatters ters and trespassers are defined as:

“he is one who, without any colour of right, enters ounocc house or land, ind, intending to stay there as long as he can .....”  ҈

Thereding Jing J. said that:

“.....where the plaf tiff has proved his right to possessind the deft is respa the Court is boundbound to g to grant rant an iman immediate order for possession.....R.”

An defin of &#82 “tresptrespasser” is as set out in Clerk &Lindsell on Torts&#1ts (15th Ed.) page 631:i> &#822respasser is a person rson who has neither right nor permission to enter on r on premises”.

br>British Railways Board v. Herringtonngton [1972. 877 at 904:

&#8he term `trespasser̵’ is a comprehensive word; it covers the wickewicked and the innocent; the burglar, the ant ir of er̵’s land, the walker blindly unaware ware that he is stepping where he has no r no right to walk, or the wandering child - all may be dubbed as trespassers”.

..................................................................................................

I refer to Sir Frederick Pollock’s statement in the case of&#16Browne v. Dawson (160;(1840)d. & El 624 624 where he said:

“..... spasser may inay in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescencthe physical fact of his occupation on the part of the righ rightful owner....”

7. There are two limbs to order 113 (Raliwalala v. Kaicola a Suva high Court Civil Action No. HBC 114 of 2014 delivered on 30 January 2015; Tamata v Paul & Leslie a Lautoka High Court Civil Action No. HBC 14 of 2006 delivered on 07 October 2016) and these are:
   

Firstly the plaintiff has to satisfy he has a legal right to claim possession of the land;

Once that is proven, the burden is on the defendant who needs to satisfy the court that he has a licence or consent of the owner r predecessor to occupy the land.

8. The plaintiff holds a lease agreement with i-Taukei Land Trust Board [formerly known as Native Land Trust Board].
   

Hence, the plaintiff has a legal right to claim possession under order 113 of the High Court Rules.

9. The defendant claims that the parties made a sale note on 07 June 2011. Upon signing of the note, the defendant moved into the property and paid first instalment of $1,000.
   
10. The sale note is a hand written note which reads as follows:
    

“7 June 2011

Sale + Purchase Agreement between Billy Bissun Dayal of Auckland, NZ and Rakesh Kumar of Watui Rd, Nausori.

For: Property of Billy Bissun Dayal situated at Waituri Rd, Nausori for $33,000-00 – VIP.

I, Rakesh Kumar f/n Jagendra Prasad hereby Agree to pay Mr Billy B. Dayal a sum of $1000-00 monthly until full sum of $33,000.00 is paid

I’m currently residing at Mr Bisun Dayal’s residence & agree to pay $1000-00 monthly until full sum is paid.

We Billy B Dayal + Rakesh Kumar hereby Agree on the above conditions & deem to follow where necessary.”

11. The piece of land in question is i-Taukei land and the i-Taukei Land Trust Board is in charge of administrating the same for the i-Taukei owners.
    

Pursuant to section 12 of the i-Taukei Land Trust Act consent of the Board is required for transfer. Nay sale, transfer without the consent of the Board is null and void.

12. Does the sale note executed by both the parties constitute a consent or licence to occupy the land?
    
13. A similar situation was dealt by the Court of Appeal in the case of Phalad v Sukh Raj [1978] 24 FLR 170, where the lessee of the then native lease entered into a sale and purchase agreement with the appellant who then took possession. The then Native Land Trust Board subsequently gave its consent to the transaction.
    

The Court of Appeal held the agreement was null and void, the consent of the Board not having been obtained before the appellant obtained exclusive possession of the land.

The Court at page 176 held that:

“The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12. It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the sub-sequent acts of appellant, done in pursuance of the agreement, "alienate or deal with the land, whether by sale, transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts. For myself have no doubt but that the true construction of the said agreement and the substantial implementation of such an agreement for sale and purchase, under which possession is completely parted with to the purchaser and immediate mutual rights and liabilities are created in respect of such exclusive possession, is a breach of section 12 if done before the consent is obtained. In every respect appellant was a purchaser in possession exercising his rights as a purchaser and it matters not that his title or rights so being fully exercised are subject to a condition which might, if it be not later fulfilled, discharge the parties from further performance with consequential rights springing into effect. For the argument of counsel for appellant to succeed it would be necessary to read into section 12 some words which would permit a conditional alienation or dealing with the land conditional upon the consent being later given. This would render the words in section 12 "without the consent of the Board first had and obtained" mere surplusage of no effect. Further the transaction would not be null and void but only so if the consent were not subsequently obtained. The time factor would then be elastic and not certain as the plain words indicate.

The words "alienate" and "deal with" as elaborated in section 12, are absolute and do not permit conditional acts in contravention. If before consent, acts are done pending the granting of consent, which come within the prohibited transactions, then the section has been breached and later consent cannot make lawful that which was earlier unlawful and null and void. This does not cut across the cases already cited which deal with the formation of the contract as contrasted with an immediately operative agreement and substantive act in performance thereof.”

14. As stated that dealing with i-Taukei land requires consent of i-Taukei Land Trust Board which has was not obtained in this case.
    
15. The defendant cannot rely on a sale note which is in breach of section 12 of the i-Taukei Land Trust Act and is null and void to claim interest of the property and a right of possession.
    
16. Accordingly an order is made as per the application.
    

The Defendant is to give vacant possession of the property known as Waituruturu No. 2 Lot 1 being NLTB 50034744 situated at Tikina of Nausori and in Province of Tailevu.

Execution is stayed for 03 months.

17. Cost is summarily assessed at $500 to be paid to the Plaintiff in 14 days.
    

................................
Vandhana Lal [Ms]
Acting Master
At Suva.