Kumar v Koroi [2022] FJHC 82; HBC214.2020 (28 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 214 of 2020

IN THE MATTER of application under section 169 of part XXIV of Land Transfer Act, Cap 131 for an order for immediate vacant possession

BETWEEN: DHARMENDRA KUMAR of 19 Amputch Street, Tamavua, Lawyer

PLAINTIFF

AND: LEKINI KOROI of Wainaka Settlement, Savutoa, Naitasiri.

FIRST DEFENDANT

AND: NAVITALAI of Wainaka Settlement, Savutoa, Naitasiri.

SECOND DEFENDANT

AND: EMINONI of Wainaka Settlement, Savutoa, Naitasiri.

THIRD DEFENDANT

Counsel : Plaintiff: In Person

: Defendants: No Appearance
Hearing Date : 14.02.2022
Date of Judgment : 28.02.2022

JUDGMENT

INTRODUCTION

1. Plaintiff, who is a legal practitioner by profession, appearing In Person and had filed this action in terms of Section 169 of Land Transfer Act 1970. He had obtained an Instrument of Tenancy, for agricultural land, in terms of Agricultural Landlord and Tenancy Act 1966 (ALTA). Plaintiff had obtained this Instrument of Tenancy for Savutoa (Part of) in the Tikina of Vuna in the Province of Natasiri (the Land) from iTLTB. The period of tenancy is fifty years. The area of the Land is approximately 10.2474 ha, and owned by Mataqali Solia. Defendants were appearing In person and filed affidavits in opposition. First Defendant stated his mother was member of Mataqali and upon her death he was residing on the land with the consent of land owning unit for 15 years and he had built a house. Second Defendant and third Defendants are siblings, and they question as to how land owning unit members were excluded when granting Instrument of Tenancy for agricultural purpose. Defendants also allege that the land was Reserve land and could not be leased without de-reserve of the area. Defendants are also alleging that land owning unit had given consent to lease a different land and that was used to lease the Land to Plaintiff. If such serious irregularities occurred why Defendants had not sought redress from court in an appropriate civil action is not understandable. Defendants cannot override Plaintiff’s title which had obtained characteristics under Land Transfer Act, in terms of Section 10(2) of iTaukei Land Trust Act 1940.Eviction in terms of Section 169 of Land Transfer Act 1970 is granted subjected to a stay of execution for six months, considering circumstances of the case.

FACTS

2. Plaintiff is a legal practitioner and he is appearing in person for this matter. All Defendants were occupants on the Land and they were not represented by a legal practitioner, but filed affidavits in opposition.
   
3. Defendants did not make any submissions. Plaintiff filed submissions and appeared in person. Defendants were absent on the day of hearing.
   
4. Plaintiff had obtained an Instrument of Tenancy from iTLTB for lease of approximately 10.2474 ha for fifty years commencing 1.1.2020 on yearly rental of $1,100 in terms of ALTA.
   
5. The terms of the said lease were contained in the said Instrument of Tenancy.
   
6. Frist Defendant’s objections in brief,
   
   1. Residing on part of land for fifteen years and farming it.
   2. Occupation was under consent and approval of land owning unit (LOU)
   100. LOU had consented to lease a different land not where he was residing.
   4. Has an ‘equitable right’ to remain on land.
   5. Has constructed a house by previous lessee.
   6. Refurbished the said house at his own expense.
   7. After expiration of previous lease, first Defendant had applied to obtain it.
   8. His mother was member of LOU
   9. Member of LOU also have his farm inside the Land.
   10. Making payments to iTLTB as rentals for the Land.
       
7. Second and third Defendants’ objections are.
   
   1. Residing on the Land for fifteen years.
   2. LOU had consented his occupation
   100. LOU had not given consent to lease the Land.
   4. His mother was residing on Reserve land hence the Land forms a reserve land
   5. Residing with his brother who is third Defendant with the consent of their uncle who is the head of Mataqali.
      
8. Plaintiff in his affidavit in reply stated
   
   1. Head of Mataqali was late Inoke Devo Senior and currently Chairman of LOU was Inoke Devo No2.
   2. First Defendant had no right to occupy and was an illegal occupant.
   100. No equitable interest to first Defendant as the house was not build by him, but pervious lessee.
   4. After expiration of previous lease land reverted to LOU.
   5. There were only few cassava and banana plantation on the Land, and major part covered with bushes.
      
9. Plaintiff in affidavit in reply was similar to his reply to first Defendant, other than reiterating what was stated in second Defendant’s affidavit in opposition.

ANALYSIS

10. In terms of Section 10(2) of iTaukei Land Trust Board Act 1940 a lease issued under ALTA are governed by Land Transfer Act 1971. Plaintiff was issued a lease for fifty years.
    
11. Section 10(2) of iTaukei Land Trust Act 1940 states,
    

‘(2) When a lease made under the provisions of this Act has been registered it shall be subject to the provisions of the Land Transfer Act, so far as the same are not inconsistent with this Act, in the same manner as if such lease has been made under that Act, and shall be dealt with in a like manner as a lease so made’ (emphasis added)

12. Plaintiff had registered instrument of title under Register of Deeds on 11.2.2020. This was prior to institution of this action.
    
13. Plaintiff had instituted this action in terms of Section 169 of Land Transfer Act 1971 which reads;

‘169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registeroprietor otor of the land;

(b) a lessor withr to re-enter nter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absef any provision thereiherein, when the lessee or tenant is in arrear for one month, whether ther there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a leor tenr tenant where a legal notice to quit has been given or the term of the lease has expired”

14. Plaintiff had instituted this action as registered proprietor of the land described in the said instrument of tenancy which had leased a land described in the said instrument of tenancy.
    
15. When Plaintiff had proved he had fulfilled statutory requirements under Land Transfer Act 1971 and he is registered proprietor, the burden shifted to Defendants to establish a right to be on the land in terms of Section 172 of Land Transfer Act 1971.
    
16. Section 172 of Land Transfer Act 1971 states

“172. If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit;.....”

17. Defendants had filed affidavits in opposition and their objections to grant vacant possession are considered below.
    

First Defendant

18. He had resided on the Land, for over 15 years and had also farmed it. It was not clear as to the area he was occupying. His affidavit also spoke about a previous lease being granted to one Jone Wasele. This is inconsistent with his own allegation that the Land was a reserve.
    
19. According to Plaintiff major part of the Land was covered with bushes and unoccupied but he had issued a notice to quit to first Defendant.
    
20. First Defendant also stated that the Land belongs to a Reserve, but this conflicts with his own stay and previous grant.
    
21. Apart from this statement in the affidavit there was no evidence to support that. Whether Jone Wasele’s lease was regarding the identical land was not clear as it was not produced.
    
22. First Defendant’s mother was a member of LOU, and had resided on the Land for over 15 years. Land owners of Yavusa Solia, Tokana Solia, Mataqali Solia from Sawani Vuna, Natasiri had issued a letter marked NS1 confirming that their consent was not obtained for the lease of the land to Plaintiff.
    
23. Section 4(1) of iTaukei Land Trust Act 1940 vested all iTaukei Land under control of Board created by said Act. There is no obligation to Plaintiff to go behind his instrument of title in terms of provisions of Land Transfer Act 1971.
    
24. The above letter NS1 confirmed the occupation of first Defendant and his grand parent who died 2014. Since then first Defendant had continued occupation with the consent of LOU and had also farmed on that.
    
25. First Defendant’s affidavit in opposition had annexed NS 2 which corroborate his position. This letter was from Chief Cland of Yayusa Solia, Tokatoka Solia, Mataqali Solia of Sawani Vuna.
    
26. Alleged equitable interest on the land cannot override registered proprietor’s right to possession.
    
27. Plaintiff is alleging that proper consent was obtained, but Defendant had submitted letters that such consent was not granted by LOU due to long term occupation of first Defendant and his grandmother. These are not sufficient for me to deny Plaintiff’s right to possession.
    
28. So facts suggest some irregularities, by statutory authority, in order to defeat legal occupation with consent of LOU by first Defendant and his predecessors. But there is no evidence to defeat Plaintiff’s title. There was not even a civil action filed based to defeat title to Plaintiff.
    
29. First Defendant had stated that Plaintiff was required to obtain consent of LOU i.e Tokatoka Solia, Yavusa Solia for lease of the Land. There is no such burden on Plaintiff under Land Transfer Act 1971 as Plaintiff only proves his title to land.

Second Defendant and third Defendants

30. They are both in occupation based on consent of LOU. They had annexed letters to establish their consent. They are siblings.
    
31. They contend that Plaintiff is required to file documentary proof state that he had obtained consent of LOU. As I stated prior once the title is establish, the burden shifted to Defendants to fulfil requirements under Section 172 of Land Transfer Act 1971.
    
32. Plaintiff admit occupation of second and third Defendants on the land and also some farming on the land, but again both Defendants had failed to establish a right to possession in terms of Section 172 of Land Transfer Act 1971.
    
33. The Supreme Court in considering the requirements of section 172 of Land Transfer Act 1971,stated in (Action No. 7 at p2) as2) as follows and it is pertinent:

"Under Section 172 the person summoned may show cause why he rd to possession of thef the land and if he proves to the satisfaction of the judge a right to poto 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."

34. In this action all three Defendants had demonstrated that they were in occupation of land with the consent of LOU, but Plaintiff had obtained a registered title under ALTA and iTaukei Land Trust Act 1940. All three Defendants were in occupation of parts of land leased to Plaintiff, for a long time. Since they are challenging the title of Plaintiff, it can be done by civil action, which was not done, yet.
    
35. So Defendants had not shown a right to possession of land inside Plaintiff’s land described in instrument of tenancy.
    

CONCLUSION

36. Plaintiff is granted possession in terms of Section 171 of Land Transfer Act 1971. Considering a long term occupation and cultivation and allegation of irregularities on the said grant of said Instrument of Tenancy execution of said possession is stayed for six months. Defendants may also remove any structures on the land within six months at their cost. No costs granted for this action, considering circumstances of the case.
    

FINAL ORDERS

1. Plaintiff is granted vacant possession.
2. Execution of vacant possession is stayed for six months from today.(i.e till 31.8.2022)

100. Defendant are at liberty to remove any permanent structures, they occupy on the land within six months and grant vacant possession to Plaintiff on or before 31.08.2022.

4. No costs.
   

Dated at Suva this 28^th day of February, 2022.

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

Justice Deepthi Amaratunga

High Court, Suva