Sahib v King [2022] FJHC 325; HBC90.2019 (30 June 2022)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 90 of 2019

BETWEEN: MOHAMMED SHAHEEN SAHIB of Masimasi, Sabeto, Businessman.

Plaintiff

A N D: JOHN WALTER KING AND FAMILY of Balawa Estate, Lautoka, Retired, on his own behalf and on behalf of his family or invitees on Lot 26 Drasa Vitogo (part of) in the District of Vuda in Lautoka.

Defendant

Before: Master U.L. Mohamed Azhar

Counsels: Mr. I. Tikoca for the Plaintiff
The Defendant in person

Date of Judgment: 30.06.2022

JUDGMENT

01. The plaintiff, by an originating summons in expedited form, summoned the defendant, pursuant to section 169 of the Land Transfer Act (Cap 131) and sought an order from the court for him to recover the possession of all that piece of land occupied by the defendant and his family, known as Lot 26 Drasa Vitogo (part of) in the District of Vuda in the Province of Ba comprising 713 square meters as set out in Crown Lease No. 15275 (The subject property). The summons also sought an order preventing the defendant, his servants, employees and family members from burning and damaging the said property. It was observed from the supporting affidavit that, there had been disputes between the Trustee of the Estate which owned the subject property and the defendant who is the beneficiary of that Estate and there had been domestic violence restraining order against the defendant. The court granted interim order restraining the defendant, his servants and family members from doing such activities in order to preserve the property till determination of this summons. The parties filed their respective affidavits. At hearing of the summons, the counsel for the plaintiff and the defendant made oral submission. The written submissions were filed thereafter.

02. The law and procedure on the summary eviction under the Land Transfer Act (Cap 131) have been settled in many cases by this court and the appellate courts and there is quite number of decisions in this area which does not need much elaboration. The Land Transfer Act (Cap 131) that was introduced to Fiji in 1971 is based on the well-known Torrens System of Registration. The Torrens system of registration is not a system of registration of title but a system of title by registration (per: Barwick C.J in Breskvar v. Wall (1971-72) 126 CLR 376 at page 385). Accordingly, the registration is everything and it is the registration that confers the title to a person so registered. The effect of this system is that, once a person is registered under the relevant law applicable to such instrument of title, his or her title is indefeasible except in case of actual fraud.

03. As a result of this guarantee given to a registered proprietor, there was a need for a mechanism by which a registered proprietor could enforce his or her or its indefeasible right against any illegal occupant. This need was fulfilled by the special jurisdiction given to this court under the sections 169 to 172 of the Land Transfer Act. The underlying principle of this summary procedure is to protect the last registered proprietor, who has an indefeasible title, from illegal occupation by others at a minimal cost. Accordingly, having a summary procedure for eviction under those sections of the Land Transfer Act is the logical consequence of Torrens system of registration, which safeguards the title of last registered proprietor. The Fiji Court of Appeal concisely stated that, it is a speedy procedure for obtaining possession when the occupier fails to show cause why an order should not be made (per: Mishra JA in Jamnadas v Honson Ltd [1985] 31 FLR 62 at page 65).

04. The Locus Standi of a person who can invoke the jurisdiction of this court under this procedure is set out in section 169. The requirements of an application, namely the description of land and the time period to be given to the person so summoned, are mentioned in section 170. The sections 171 and 172 provide for the two powers that the court may exercise in dealing with the applications under section 169. The burden to satisfy the court on the fulfillment of the requirements, under sections 169 and 170, is on the plaintiff and once this burden is discharged, it then shifts to the defendant to show his or her right to possess the land. The exercise of court’s power, either to grant the possession to the plaintiff or to dismiss the summons, depends on how the said burden is discharged by respective party to the proceedings. However, dismissal of a summons shall not prejudice the right of a plaintiff to take any other proceedings to which he or she may be otherwise entitled, against any defendant. Likewise, in the case of a lessor summoning a lessee for default of rentals, if the lessee, before hearing of the summons, pays or tenders all rent due and all costs incurred by the lessor, the summons shall be dismissed by the court.

05. The supplementary affidavit filed on behalf of the plaintiff has the copy of the Crown Lease No.15275. It is marked as “TS 10”. The defendant stated in his affidavit that, he is not aware of any document pertaining to the lease being transferred to the plaintiff. However, the Instrument of Title marked as “TS 10” is duly certified by the Registrar of Titles. As per section 18 of the Land Transfer Act, a duplicate instrument of title duly authenticated under the hand and seal of the Registrar shall be received as evidence of the particulars contained in or endorsed upon such instrument and of such particulars being entered in the register and shall, unless the contrary be proved by the production of the register or a certified copy thereof, be conclusive evidence of its contents. It is evident form the said Instrument of Title (TS 10) that, the plaintiff is the last registered proprietor of the subject property.

06. The defendant did not dispute the procedural requirement of giving adequate description of the subject property. The affidavit of service of the summons is the proof for the fact that sufficient time, as required by section 170, was given to the defendant to prepare his defence. In addition, the court granted further time for him to prepare his affidavit. Further the consent of the Director of Land is not necessary as settled by His Lordship the former Chief Justice Anthony Gates (as His Lordship then was) in Prasad v Chand [2001] FJLawRp 31; [2001] 1 FLR 164 (30 April 2001). Accordingly, the plaintiff fulfilled the requirements under sections 169 and 170 of the Land Transfer Act.

07. The burden now shifts to the defendant to show cause his defence to remain in possession of the subject property. The Supreme Court in Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87 explained the duty of a defendant in application of this nature and held that:

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land 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." (Emphasis added)

08. Generally, the duty on defendants in this application, as per the above authority is, not to produce any final or incontestable proof of their right to remain in the properties, but to adduce some tangible evidence establishing a right or supporting an arguable case for their right to remain in possession of the properties in dispute. Black’s Law Dictionary defines “tangible evidence” as “physical evidence that is either real or demonstrative” (10^th Edition, page 678). Therefore, the duty of the defendant in this case too is to produce some real or demonstrative physical evidence showing his right to remain in possession of the subject property.

09. Furthermore, the Fiji Court of Appeal in Ali v Jalil [1982] FJLawRp 9; [1982] 28 FLR 31 (2 April 1982) explained the nature of the orders a court may make in terms of the phrase used in section 172 of the Land Transfer Act, which says “he (judge) may make any order and impose any terms he may think fit”. The Court held that:

“..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”. (Emphasis added).

10. The abovementioned two decisions require the court to decide whether the defendant adduced any real or demonstrative physical evidence establishing a right or supporting an arguable case for such a right, or even he failed to adduce such evidence whether an open court hearing is required or not, given the circumstances of this case.
    
11. The defendant stated that, his late mother, before her death, requested him to come and stay in the subject property and look after it. Accordingly, he moved to the subject property and has been there. He disputed that, his late mother transferred the subject property to one Ruth Hicks. Disputing the “Will” referred to in paragraph 9 of the affidavit that supports the summons, the defendant stated that, his late mother would not have asked him to come and stay in the subject property, had she signed the said “Will”. Briefly, the defendant disputes the Will claimed to be of his late mother, Maria Valentine also known as Maria Valentine King.
    
12. The position taken by the plaintiff through the affidavits filed on his behalf is that, the subject property was previously owned by Maria King, William King and Jemima King. Upon death of both William King and Maria King, their shares on the subject property were transferred to Ruth Hicks as Executrix and Trustee of late Maria and William. Jemima King is alive and she transferred her one third of shares to Ruth Hicks. Ruth Hicks finally transferred the entire lease to the plaintiff. The defendant has no beneficial interest on the estate of late William King and Maria King; however he has been occupying the subject property. All these stories are narrated by Timoci Vu Nalota Saukuru in his affidavits filed on behalf of the plaintiff in this matter. Timoci is neither the plaintiff, nor the beneficiary of the subject property. Nor he related to any of the beneficiaries of late William and Maria. He is an employee of the plaintiff. He had sworn all the affidavits on behalf of his boss – the plaintiff. On the other hand, the defendant who is the son of late Maria King totally denied all these averments of Timoci and disputed his late mother’s Will on which the plaintiff placed much reliance to justify the transfer of the subject property by Ruth Hicks to the plaintiff.
    
13. According to the annexures of Timoci’s affidavits, the subject property was initially leased to Maria King, William King and Jemima Ting. There are two Wills annexed with the affidavit sworn on 10.04.2019. One is of late William King and the other is of late Maria King. Late William King bequeathed his undivided one-third share to his mother Maria King. Maria King then became the owner of undivided two-third shares. Late Maria King by the impugned Will bequeathed her shares in the subject property to Julia King and the moneys to her children including the defendant. The executrix and trustee in both Will is Ruth Hicks who transferred the subject property.
    
14. The defendant challenges only the Will of his late mother Maria King. He stated in his affidavit that his late mother would not have signed the said Will as she, before her death, requested him to stay in the subject property and look after it. Apart from the assertion of the defendant about his possession of the subject property, the documents (application for DVRO and DVRO granted by the court) annexed with the affidavit of Timoci too are evident that, the defendant has been in possession long before the transfer of subject property to the plaintiff. The defendant further raised several concerns regarding the impugned Will of his mother in his written submission. However, the counsel for the plaintiff mentioned two issues in his reply submission and stated that, they are new evidence. They are (a) the Will of Maria King was forged and (b) The Will of Maria King claimed to have been explained in Hindustani. These two issues are crucial in this matter. However the question is whether they are new evidence that is adduced in the written submission of the defendant as claimed by the counsel for the plaintiff? The defendant in paragraph 4 of his affidavit stated that:
    

I am not aware not aware of any document pertaining to the lease being registered in the plaintiff’s name, and also I am disputing that my late mother had given the property to Ruth Hicks.

15. The defendant further stated in paragraph 10 that:
    

I am disputing the Will that is annexed in paragraph 9 of the affidavit of the plaintiff as its signature of the Testator as if this was the case, my late mother would have not asked me to stay on the property.

16. The above paragraphs clearly indicate that, the defendant, who appearing in person without the assistance of a solicitor, challenged the authenticity of the said Will in layman’s language. He claims that, his mother would not have signed the said Will. It means and understood that according to him, it is not a genuine Will of his late mother, even though he did not use the word ‘forged’ in his affidavit. In his submission he used the word “forged”. Accordingly, it is not new evidence as argued by the counsel for the plaintiff. The impugned “Will”, which is marked as “TS 6” and annexed with the affidavit of Timoci, is clearly worded to read that, it was read over to the Testator – Maria King the mother of the defendant – in Hindustani language before execution, and she understood and had full knowledge of its contents. This was certified by the subscribing witnesses. In fact, the impugned Will was tendered by the plaintiff to support his summons. It is plaintiff’s one of the annexures in his affidavit. It was not tendered by the defendant. The defendant just highlighted this in his submission. The court had already observed it, before it was highlighted by the defendant. The plaintiff who tendered a document cannot blame the defendant who found a point against him (plaintiff) on the same document tendered by the plaintiff himself. Accordingly, I reject the argument of the counsel for the plaintiff that, the defendant adduced new evidence to the court.
    
17. In fact, these two issues are significant as this lead serious doubt to the authenticity of the impugned Will. The testator legibly signed in English, which is questioned by the defendant. Even we accept as it is the true signature of the testator, the serious question arises as why a person who, can legibly sign in English language, was read over of the same instrument in Hindustani language which completely alien to her, because she is partly iTaukei and partly European. The affidavit in reply sworn by Timoci on behalf of the plaintiff is not sufficient to answer these allegations. Timoci being an employee of the plaintiff cannot give evidence and explanation about the Will of late Maria King and inheritance of the defendant who are totally alien to him (Timoci). This would have been the situation even the plaintiff had sworn all his affidavits in this matter. The serious issues arise in this matter cannot be decided on the affidavits only, and especially on the affidavit of Timoci, who is a third party in this matter. These issues warrant details evidence tested and refined by cross examination in full trial.
    
18. The plaintiff in this matter discharged his burden under this procedure. However, the evidence adduced by the defendant requires that, an open court hearing is necessary to determine the issues that are raised by the defendant regarding the subject property and his right to remain on it.
    
19. In result, I make the following orders:
    
    1. The summons filed on behalf of the plaintiff is dismissed,
       
    2. The defendant and his family can remain in possession of the subject property until all the issues regarding Will of late Maria King and inheritance of the defendant and other siblings are determined by a court of law having competent jurisdiction in this matter,
       
    3. The injunctions issues against the defendant are hereby dissolved, and
       
    4. The plaintiff should pay a summarily assessed cost of $ 1,000 to the defendant or his family members within 14 days from today.
       

U.L.Mohamed Azhar
Master of the High Court
At Lautoka
30.06.2022