Lata v Shuling Han [2022] FJHC 633; HBC403.2019 (19 August 2022)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 403 of 2019

Brij Lata
Plaintiff
v
Shuling Han and her family
Defendants

Counsel: Mr Sunil Kumar for the plaintiff

Mr A. Chand for the defendants
Date of hearing : 24^th March,2022
Date of Judgment: 19^th August,2022

Judgment

1. This is the defendant’s appeal from a decision of the Acting Master granting the plaintiff vacant possession of CL no. 131810, part of Lot 140 on DP 4021 Part of 6 Wainibuku Subdivision,(land) occupied by her and her family. The plaintiff’s application under section 169 was filed on 26^th November,2019.
   
2. The plaintiff obtained consent from the Director of Lands to institute eviction proceedings against the defendants and her family. Notice to quit was served requesting the defendants and her family to pay arrears of rent and vacate.
   
3. The defendant contended that the plaintiff executed a Sale and Purchase Agreement,(SPA) with her husband to sell the land and he paid a deposit of $40,000.00. The defendants had no intention to cancel the SPA. She has invested about $ 185,000.00 on the land.
   
4. The plaintiff argued that the SPA was rescinded in terms of the default clause and thereafter the defendants filed Civil Action HBC no.70 of 2019 against the plaintiff. Any development was done without the consent of the Director of Lands, local authority and knowledge of the plaintiff. The expenses of USD 10333.70 in the defendant’s invoice consists of household items, nothing to do with building.
   
5. The Acting Master held that the plaintiff had locus to bring these proceedings and the defendant had not shown a right to possession of the land nor an arguable defence.
   
6. The plaintiff appeals on the following grounds:
   1. That the Learned Master erred in law by granting the vacant possession of the property comprised in being Crown Lease No. 131810 being part of Lot 140 on DP 4021 against the Appellant/Defendant without properly analyzing the facts and evidences of the matter, as the purpose for section 169 was defeated due to delay in delivery of Judgment.
   2. That the Learned Master erred in law and in fact by failing to consider that the Plaintiff/Respondent had an intention to transfer the property being Crown Lease No. 131810 being part of Lot 140 on DP 4021 to the Appellant/Defendant’s husband namely Sanjay Rajendra Prasad as there was a Sales and Purchase Agreement executed.
   100. That the Learned Master erred in law and in fact by failing to take into consideration that the Applicant through her husband had paid a deposit in a sum of $40,000 to the Plaintiff/Respondent and the Plaintiff/Respondent has issued a receipt under the Appellant’s nickname as Miky.
   4. That the learned Master erred in law and fact by concluding that dealing between Appellant and Respondent is to be declared null and void due to dealing has been done without the prior consent of the Director of Lands, however, to process the Transfer dealing, obviously consent is taken from the Director of Lands.
   5. That the learned Master erred in law and fact by concluding that consent for Director of Lands is required for renovation. Court failed to take note that the Appellant and her husband did not pursue any constructions work rather renovation work was done.
      
   6. That the learned Master erred in law and fact that the Appellant through her husband has invested on the said property for the sum of $185,000 where renovations has been carried out on the property with full knowledge and consent of the Plaintiff/Respondent.
   7. That the learned Master has erred in concluding that the Defendant had an arguable Defence.
   8. That the learned Master erred in fact by awarding the cost of $1,000 against the Appellant by failing looking at the circumstances of the proceedings.
      

The determination

7. The second and third grounds of appeal contend that the Master failed to consider that the defendant’s husband had entered into a SPA with the plaintiff to purchase the land and paid a deposit of $ 40,000.00 under her nickname “Mrs Miky”.
   
8. The Acting Master held that the defendant had not provided evidence of deferment of the settlement for the purchase, the receipts provided by the defendant cover a sum of $ 20,000.00 paid by a “Mrs Miky”, whose identity was not clarified.
   
9. The SPA of 5^th September,2017, states that settlement was to be made in 90 days from the date of execution. The SPA expired, as provided in the statement of claim filed by the defendants against the plaintiff in HBC no.70 of 2019.
   
10. In my judgment, the defendants and her family, admittedly tenants of the plaintiff have no right to remain in possession of the land.
    
11. The remaining grounds of appeal contend that the Master erred in holding that the transfer dealing and renovations carried out by the defendant required the prior consent of the Director of Lands. It is argued that renovations were carried out by the defendant for the sum of $185,000.00 with full knowledge and consent of the plaintiff.
    
12. In my view, the consent of the Director of Lands is not required for the mere execution of a SPA as held in several cases nor for a renovation.
    
13. In the present matter, in my view, the Acting Master correctly found that certain items cannot be related to construction nor maintenance.
14. There is no evidence that the plaintiff was aware that any improvements were made to the dwelling on the land.
    
15. In my judgment, the Acting Master correctly came to a finding that the defendant and her family have not shown a right to possession of the land.
    
16. The plaintiff is entitled to vacant possession of the land.
    
17. The appeal of the defendants fails.
    
18. Orders
    1. The appeal of the defendants is declined.
    2. The defendants shall give the plaintiffs vacant possession of CL no. 131810, part of Lot 140 on DP 4021 Part of 6 Wainibuku Subdivision on or before 19^th September,2022.
    100. The defendants shall pay the plaintiffs costs summarily assessed in a sum of $ 1500.
         

A.L.B. Brito-Mutunayagam

JUDGE

19^th August, 2022