Wati v Vinod [2000] FJLawRp 56; [2000] 1 FLR 263 (20 October 2000)

[2000] 1 FLR 263

IN THE HIGH COURT OF FIJI

BIMLA WATI & ANOR

v

RAM VINOD

High Court Civil Jurisdiction
Prakash, J
20 October, 2000.
HBC 129/00L

Land Transfer Act section 169 application - meaning of "a description" in section 170 of Land Transfer Act - whether it means a full description - whether defendant has a right to possession of the land - section 172 of Land Transfer Act.

Application by the Plaintiff under section 169 of the Land Transfer Act for vacant possession. The Defendant sought the dismissal of the summons on the grounds that the Plaintiff has failed to state a description of the subject land in accordance with section 170 of the Land Transfer Act.

Held - The word "a description" under section 170 of the Land Transfer Act does not mean a full description and that reference to the land by way of lease number is sufficient.

Cases referred to in Judgment:
dist Atunaisa Tavuto v Sumeshwar Singh HBC 332/97L
dist Ponsami v Dharam Lingam Reddy (Appeal No. 1/96)
appl Vallabh Das Premiji Vinod Lal, Nanki & Koki (Civil Appeal 70/74)
dist Public Trustee of Fiji v Krishna Nair s/o Embechun Nair ABU10/96
foll Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29
ref Lila Wati, Raj Pal & Madan Lal v Alitia Vakaraubula [1994] 40 FLR 107 13 July 1994
foll Maharaj v Chand [1986] 3 All ER 107

Viren Kapadia for appellant
Vijay Maharaj for respondent

20 October 2000.

JUDGMENT

Prakash, J

This is an application, via a Summons dated 4 April 2000, by the Plaintiffs to show cause why the Defendants should not give up vacant possession to the Plaintiffs of the area occupied by them situated on Crown Lease Number 10723 being Lot 2 on Deposited Plan No. 1352 comprising an area of 3009sqm, and for costs. The Summons is filed under Section 169 of the Land Transfer Act. Both parties have filed affidavits in support and in opposition.

At the hearing of the Summons the Defendant Counsel raised two technical arguments for the dismissal of the Summons. These were based on the requirements of s. 170 of the Land Transfer Act. This states: "The summons shall contain a description of the land and shall require the person summoned to appear at the Court on a day not earlier than sixteen days after the service of the Summons."

Learned Defence Counsel has submitted that the above requirements are mandatory. He relies on Annexure 'A' of the Plaintiffs affidavit to state that the description of the land "Rarawai and Vunisamalo" is simply not given. In response learned Counsel for the Plaintiffs states that lease number 10723 is one lease and there are 2 lots on one title. There can't be two crown leases of the same number. They are seeking vacant possession of the area occupied by the Defendants "on Crown Lease Number 10723 being lot 2 on Deposited Plan No. 1352 comprising an area of 3009 sqm.." The Court notes that a copy of the title with the diagram of the subject lots is provided in the Plaintiffs affidavit in support.

The Court has not been provided nor able to locate any authorities to suggest that "a description" as per section 170 means a full description of the land. The Act itself does not specify what a. description of the land entails. What is adequate or full description? What is a sufficient description? The purpose is clearly for the parties to be informed as to what land the application relates to. This is clear from the supporting affidavit. In this regard I cannot concur with the sentiments of my brother Justice Madraiwiwi in Atunaisa Tavuto v Sumeshwar Singh (Civil Action No. HBC0332 of 1997L) submitted by the Defence Counsel in support of his argument on s.170. It is not clear what Justice Madraiwiwi had meant in stating that "The Summons is defective in not properly describing the subject property" (emphasis added). It is not clear whether "a description means full or proper description. Further, the Supreme Court in the case of Ponsami v Dharam Lingam Reddy (Appeal No. 1 of 1996) was dealing with the need for compliance with the Supreme Court Rules not a statutory provision such as Section 170. The statute does not clearly specify what "a description" requires. In Vallabh Das Premiji v. Vinod Lal, Nanki and Koki (Civil Appeal 70 of 1974) the Court of Appeal had accepted a description as in the present summons as sufficient.

The other technical issue raised is the requirement to appear on a day not earlier than sixteen days after the service of the summons. According to the Affidavit of Service the Summons was served on the Defendants on 8 April 2000. The return date on the summons was 12 May 2000. As such the substance of the requirement under s. 170 is met. The failure to state this on the summons, is in the Courts view, not a fatal defect.

It is now left to the Court to deal with the requirement under s. 172 of the Land Transfer Act, whether the Defendants have shown cause why they should not give possession of the subject land. Do the defendants have a right to possession of the land?

It is clear from the affidavits filed by the parties, and that filed on behalf of the Defendants by Deo Narayan and Suresh Chand, that there are factual disputes surrounding how the house occupied by the Defendants was built on the Plaintiffs land. It is clear that the building is not a "temporary shelter" as claimed by the Plaintiffs. It is admitted by both parties that there is a concrete floor in the house. Whether it has reinforced steel or not cannot be established. How it affects the nature of the agreement between the parties and how the Defendants came into possession are matters which will require further evidence. It is clear that the defendants were invited to occupy the said land. Whether the invitation was for a temporary, one month basis or for longer will depend on the nature and credibility of the witnesses for the parties. The affidavit materials are not sufficient to assess this. There are substantial disputes as to the facts.

Given what is contained in the affidavit materials the Court cannot be satisfied whether there is an estoppel raised by the Defendants as discussed in Public Trustee of Fiji v Krishna Nair s/o Embechun Nair (FCA Civil App. ABU0010 of 1996S) In the case of Inwards v Baker [1965] EWCA Civ 4; [1965] 2 Q.B. 29, the English Court of Appeal had stated that "... where a person expended money on the land of another in the expectation, induced or encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity was created such that a court would protect this occupation of the land, and the Court had power to determine in what way the equity so arising could be satisfied (quoted in Lila Wati, Raj Pal and Madan Lal v Alitia Vakaraubula (High Court, 1994 (Fatiaki J) 13 July at p. 110). As in Maharaj v Chand [1986] 3 All ER 107 the parties are related and the issue of equity is a relevant consideration.

In considering the relevant cases cited by the parties and in considering the affidavit materials the Court is of the view that the proceedings involve consideration of complicated facts and serious issues of law. These cannot be determined in summary proceedings. The Court is also satisfied that the defendant has shown cause against an order for vacant possession, as per section 172 of the Land Transfer Act. The application is dismissed. Each party is to bear its own costs.

Application for vacant possession dismissed.

Mereseini R Vuniwaqa