Vosaicake v Saluvou [2023] FJHC 38; HBC192.2021 (31 January 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC No. 192 of 2021

IN THE MATTER of an application under Section 169 of the Land Transfer Act.

BETWEEN :

TOMASI VOSAICAKE and LUISA KERESI both of 7/40-42 Larien Crescent, Birrong 2143, New South Wales, Australia, both retired
PLAINTIFFS

AND :

NAVITALAI SALUVOU, of Waibau Subdivision, Vuna, Naitasiri
FIRST DEFENDANT

AND :

TIMALETI KANIAKANA, of Waibau Subdivision, Vuna, Naitasiri
SECOND DEFENDANT

Counsel
Plaintiffs: Ms. Tikoisuva M
Defendants: Ms. Tavaiqia L

Date of Hearing: 28.11.2022
Date of Judgment: 31.01.2023

Catch words
Agricultural Landlord and Tenant Act Section 8(3), Registration under Registration Act 1879 Section 3, 10 Registrar of Deeds, Registrar of Title, Land Transfer Act section 2,18,37,38,169,172 Last Registered Proprietor.

INTRODUCTION

1. This is an application made under Section 169 of Land Transfer Act 1971. Plaintiffs who are residing overseas and also granted tenancy for agricultural land, had instituted this action for eviction of Defendants. They are long terms occupants of an area of land and building close to the boundary of the Instrument of Tenancy issued in terms of Agricultural Landlord and Tenant Act (ALTA). The area under said Instrument of Tenancy is subject to survey and approximately 11.69 hectares. Plaintiffs’ Instrument of Tenancy is not registered with Land Transfer Act 1971 in terms of Section 8(3)(a) of ALTA, hence eviction in terms of Section 169(a) of Land Transfer Act 1971 is refused in limine. Even if I am wrong on that, as Defendants were in occupation for a long period before the grant of Instrument of Tenancy to Defendants, and they are disputing the area under said Instrument of Tenancy, which is ‘subject to survey’. It is not possible to evict Defendants, in summary manner in this application. Defendants are also disputing Plaintiffs’ Instrument of Tenancy on the basis that it covers a Native Reserve, which is again not clear on the facts provided in this action. Neither party had submitted conclusive evidence on disputed facts. Hence, these are not issues that can be determined in summary manner and proper survey needs to be carried out by a common surveyor or either party may conduct a survey and establish the accuracy of the said plan through evidence at an oral hearing.
   

FACTS

2. The Plaintiffs have instituted this action in terms of section 169 of the Land Transfer Act 1971. Plaintiffs are seeking orders against first and second Defendants for eviction.
   
3. Plaintiffs had obtained an Instrument of Tenancy in terms of ALTA in 2015.
   
4. Plaintiffs are residing overseas and there is no evidence that they had started any agricultural developments, on the land described in the instrument of Tenancy.
   
5. According to the said Instrument of Tenancy area is stated as ‘approximately 11.69 ha (subject to survey)’
   
6. Defendants reject that they were in occupation of land under Instrument of Tenancy. Apart from that they also state that they were in occupation of the reserve land, which cannot be included in an Instrument of Tenancy without de-reservation.
   
7. Defendants further state that the land owning unit had not consented to lease of Native Land, hence the Instrument of Tenancy is null and void.
   

ANALYSIS

8. Section 169 of Land Transfer Act 1971 states,
   

“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 registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether 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 lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”(emphasis added)

9. Institution of actions for eviction in terms of Section 169 of Land Transfer Act 1971, needs certain qualifications. It is not that every kind of interest holder of a land, who can institute summary eviction in terms of Section 169 of Land Transfer Act 1971.
   
10. Plaintiffs is required to qualify under any of the three requirements under Section 169 of Land Transfer Act 1971, in order to institute this action.
    
11. Plaintiff had instituted this action in terms of Section 169(a) of Land Transfer Act 1971. SS 169(b), 169(c) has no application as Plaintiffs are seeking eviction of squatters. Both of the said provisions applied to over staying lessees or tenants, which has no application to this case.
    
12. Plaintiff has to first establish they are the last registered proprietors of the land in issue.
    
13. Part V of the Land Transfer Act 1971 deals with the Effects of the Registration under said Act. Accordingly only registration under said Act will acquire the attributes under said Act. Part V of Land Transfer Act 1971 contains Sections 37 and 38 which reads;
    

“EFFECT OF REGISTRATION

Instrument not effectual until registered

37. No instrument until registered in accordance with the provisions of this Act shall be effectual to create, vary, extinguish or pass any estate or interest or encumbrance in, on or over any land subject to the provisions of this Act, but upon registration the estate or interest or encumbrance shall be created, varied, extinguished or passed in the manner and subject to the covenants and conditions expressed or implied in the instrument.

Registered instrument to be conclusive evidence of title

38. No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title.” (emphasis added)

14. It should be noted that in terms of Section 18 of Land Transfer Act 1971, the instrument of title issued is evidence of proprietorship that may be considered as ‘conclusive evidence’.
    
15. Section 18 of Land Transfer Act 1971 , states,
    

“Instrument of title to be evidence of proprietorship

18. Every duplicate instrument of title duly authenticated under the hand and seal of the Registrar shall be received in all courts 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 that the person named in such instrument or in any entry thereon as seized of or as taking an estate or interest in the land described in such instrument is seized or possessed of such land for the estate or interest so specified as from the date of such certificate or as from the date from which such estate or interest is expressed to take effect.”

16. From the above provisions, it can be deduced that Instrument of Tenancy is required to be registered under Land Transfer Act 1971, in order to apply said Act.
    
17. Registration by Registrar of Deeds, can be contrasted with above provisions. Section 3 of Registration Act 1869 which reads

‘Object of registration

3. Deeds may be registered for publication, for preservation and for execution, or for one or more or all of these objects combined.’

18. There is no conclusive proof as to the title under Registration Act 1879.
    
19. Further, Section 10 of Registration Act 1879 states,
    

“Registration of deed to be equivalent to sealing on delivery

10. Registration shall be equivalent to sealing for all deeds heretofore known to the law as deeds under seal and shall also be equivalent to delivery for all deeds and no other form of sealing or of delivery either by fact or words shall be necessary for registered deeds either at the time of subscribing or afterwards or at the time of registration. All deeds executed subsequent to the commencement of this Act shall take priority according to date of registration.”

20. Registration under Land Transfer Act 1971 is not analogous to registration in terms of Registration Act 1879. Only a ‘registered proprietor’ can institute action in terms of Section 169(a) of Land Transfer Act 1971, and registration, is to be deduced from the word ‘Register’ which is defined in the interpretation section 2 of the said Act, as

“"Register" means the Register of Titles to land to be kept in accordance with the provisions of this Act”(emphasis added)

21. As the word “Register” is defined in exclusive manner as opposed to inclusive, as the word ‘means’ is used. So sole register, that is meant in register is the Register of Title and not Register of Deeds under Registration Act 1879.
    
22. To substantiate the above meaning word ‘Registrar’ is also defined in exclusive manner in Section 2 of Land Transfer Act 1971 and states

“"Registrar" means the Registrar of Titles appointed under the provisions of this Act, and includes any Deputy Registrar “(emphasis added)

23. So registration invariably needs to be in the “Register” defined in the Land Transfer Act 1971, which obtains the attributes of infeasibility.
    
24. Further, it needs to be registered by the person who is authorized to and defined as Registrar. So the ‘Last Registered Proprietor’ means the person or persons registered under Land Transfer Act 1971 as the last proprietors. Any other interpretation will erode the attributes, of indefeasibility.
    
25. Instrument of Tenancy under ALTA can also be registered in terms of Section 8(3)(a) of ALTA, under Land Transfer Act 1971. If that is so provisions of Land Transfer Act 1971 can be applied including eviction, but not otherwise.
    
26. Plaintiffs’ Instrument of Tenancy was issued in terms of ALTA and was registered under Registration Act 1879 by Registrar of Deeds. Section 8 (3)(b) which cannot obtain indefeasibility.
    
27. Section 8 of ALTA states

“Contracts and instruments of tenancy

8.-(1) A contract of tenancy shall be evidenced by an instrument in writing called, in this Act, an instrument of tenancy.

(2) The instrument of tenancy shall be in the prescribed form and shall contain the names and addresses of the parties, the rent provided for and the place at which such rent is payable, the amount of premium or payment for improvements provided by the landlord for the purpose of the tenancy, the term of the tenancy, a sufficient description of the land referred to in such instrument and such other conditions as may be agreed or prescribed.

(3) Every instrument of tenancy shall be signed by the parties thereto and-

(a) if registrable under the provisions of the Land Transfer Act, shall be registered in accordance with the provisions of that Act and, notwithstanding the provisions of section 60, all other provisions of the said Act shall apply to such instrument and all dealings relating thereto; or

(b) if not registrable under the provisions of the Land Transfer Act, shall, together with all dealings relating thereto, be registered as deeds under the provisions of the Registration Act.

(4) Where a lease or sub-lease may lawfully be given in respect of agricultural land, a tenant may request his landlord in writing to provide, sign or execute such lease or sub-lease, as the case may be, or to register it in accordance with the provisions of the Land Transfer Act.

(5) Any landlord who, without reasonable cause, fails to provide, sign, execute or register a lease or sub-lease within a reasonable time of such written request shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.

(6) Without prejudice to the ordinary meaning of the expression "reasonable cause", where any tenant fails within fourteen days of a written request served upon him specifying the reasonable legal costs, survey fees and other charges attendant upon the provision, execution or registration of a lease or sub-lease, to pay such reasonable legal costs, fees or other charges as aforesaid or as maybe determined by a tribunal or be prescribed, such failure shall for the purposes of subsection (5) be deemed to be reasonable cause.

(7) Where any tenant fails within six months from the date of service upon him or from the receipt by him by registered post of a written request to execute and return to the landlord an instrument of tenancy, such tenancy may by notice be declared void by the landlord, but the tenant if in possession shall nevertheless be liable to pay to the landlord an amount equivalent to the rent that would have begin payable up to the date of such notice had such instrument of tenancy been executed.”(emphasis added)

28. From the above provision in ALTA and provisions contained in Land Transfer Act 1971, it is clear that if the Instrument of Tenancy is not registered under Land Transfer Act 1971, provisions contained in the Land Transfer Act 1971 cannot be applied and indefeasibility of the title cannot be imputed to the Instrument of Tenancy.
    
29. If the Instrument of Tenancy is registered under Land Transfer Act 1971, in terms of Section 8(3) (a) of ALTA, then only provisions of Land Transfer Act 1971 can be applied. Then, the character of instrument is changed, and eviction in terms of Section 169(a) of the said Act can be resorted.
    
30. Accordingly, Plaintiffs had not registered their Instrument of Tenancy that is annexed to this application in terms of Section 8(3)(a) of ALTA, but was registered by Registrar of Deeds in terms of Registration Act 1979, in terms of Section 8(3)(b) of ALTA, hence provisions contained in Section 169(a) of Land Transfer Act 1971 cannot be applied.
    
31. Section 8(3)(a) of ALTA specifically state if registered under Land Transfer Act 1971, the provisions of Land Transfer Act 1971 would apply. If the Instrument of Tenancy is not registered under Section 8(3)(a) ALTA , then the registration of such an instrument is registered under Registration Act 1879, by Registrar of Deeds in terms of Section 8(3)(b) of ALTA, by application of exprssio unius exclusion alterius such registration cannot attach the attributes of Section 8(3)(a) of ALTA. Further, distinction between registrations under Land Transfer Act 1971, and Registration Act 1879 are reasons not to do so.
    
32. As the instrument of tenancy annexed to the application is not registered in terms of Land Transfer Act 1971 this application for eviction cannot proceed in terms of Section 169(a) of Land Transfer Act 1971.
    
33. So the Application for eviction is struck of in limine.
    
34. Without prejudice to above Plaintiff had failed to establish that Defendants are residing within the area contained in the Instrument of Tenancy due to the following facts
    1. Defendants were in occupation close to the boundary of the ‘sketch’ or diagram produced without survey.
    2. Plaintiffs’ area under said instrument is not clearly defined.
    100. The area is given as ‘approximately 11.69 hectares’
    4. It was ‘subject to survey’ which means there may be variations of the boundary when a survey is done.
35. Section 172 of the Land Transfer Act 1971 allows for a person in possession of a land to prove a right of possession of the land, Defendants have stated they are residing outside the boundary of the Instrument of Tenancy given to Plaintiffs.
    
36. So, it is not clear without a survey Defendants are inside the area under Instrument of Tenancy as their occupation were close to the boundary which remains undefined without a survey.
    
37. Both parties are relying on documents that were not surveyed plans, hence cannot be accepted to accuracy of the boundaries. These facts cannot be summarily decided to deprive a long standing occupants without granting parties to adduce documentary and oral evidence as to the demarcation of boundary.
    
38. Neither party had submitted a survey plan with superimposition of undisputed boundaries of the Instrument of Tenancy that was issued to Plaintiffs. It is unsatisfactory for the grant of summary eviction on such disputed facts.
    
39. Apart from that Defendants had raised issues of inclusion of Native Reserve area under said Instrument of Tenancy and also whether their consent was obtained from the land owning unit. These were not matters that can be decided in summary manner as neither party had submitted conclusive evidence on these facts. These are issues that are suitable for hearing of oral evidence and submission of written documents.

CONCLUSION

40. Plaintiff’s application for eviction based on Instrument of Tenancy which was not registered in terms of Section 8(3)(a) of ALTA, under Land Transfer Act 1971. It was registered in terms of Section 8(3)(b) of ALTA under, Registration Act 1879 by Registrar of Deeds. As such, Plaintiffs’ application in terms of Section 169(a) is stuck off in limine. Even if I am wrong on the above, the area under Instrument of Tenancy is ‘subject to survey’ hence boundary was not clearly defined, hence Defendants who were occupying near the boundary cannot be evicted summarily. The area under Instrument of Tenancy needs to be surveyed and clearly demarcated to grant summary eviction. The summons of eviction is stuck off. Considering the circumstances of the case no costs awarded.

FINAL ORDERS

1. The summons for eviction filed on 21.9.2021 is struck off.
2. No cost.
   

Dated at Suva this 31^st day of January, 2023.

.....................................
Justice Deepthi Amaratunga
High Court, Suva