Housing Authority v Muniappa [1977] FJSC 177; Civil Action 25 of 1977 (7 April 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 25 of 1977

BETWEEN:

THE HOUSING AUTHORITY
Applicant

AND:

SAMSON MUNIAPPA
s/o Durswamy
Respondent

Mr. C. Gordon for the Applicant
Mr. M. Tappoo for the Respondent

JUDGMENT

This is a summons for ejectment under section 169 of the Land Transfer Act 1971 which I will call 'the Act'. The applicant is the Housing Authority, a statutory body duly constituted under the Housing Act Cap. 240 and the respondent is an occupant of part of the land held by the Housing Authority under lease from the Crown. The summons asks the respondent to show cause why an order for possession should not be made. The divisional manager of the plaintiff corporation has made an affidavit in which he states that the land comprised in the lease is 1005 acres 3 roods 37 perches and the respondent is in occupation of part of it without any licence, consent or permission from the applicant, and he further says that the applicant at no time agreed to let to him the land presently occupied by the respondent. He gives no other description of the land occupied by the respondent. Although by some subtlety of reasoning those statements may be strictly correct, I would characterise them as untrue, seeing that the defendant apparently holds receipts for rent from the Housing Authority, and I will hope that in future applications the divisional manager will be somewhat more careful in the statements to which he deposes. Then the divisional manager talks of a notice to quit, and he exhibits a copy of the notice with a certificate of service. A certificate from the server is of no use. Service must be proved and the proper way of proving it is by the sworn affidavit of the person who served the notice. I observe that the notice which is claimed to have been served on 20th May 1975 bears date 2nd June. That is somewhat curious but the respondent admits being served, and does not demur to service, so I will still assume that service is good. Then the Divisional Manager refers to an offer to the respondent of an alternative site. His first affidavit alleged that that offer had been rejected but that statement was subsequently withdrawn, and a letter from the respondent exhibited showing that he accepted the alternative site and stated his intention of shifting to it. From the divisional manager's affidavit I would assume the land of which possession is sought to be vacant land.

A very different picture is disclosed, however, by the affidavit of the respondent. He says that he first got on to this land by renting a house from one of his relatives who was a tenant of the Colonial Sugar Refining Company Limited who owned the freehold before it was taken over by the Crown and leased to the Housing Authority. He says that in 1969 he built a house for himself with the consent of his relative, and that house is now worth $1500. Then he says that in 1970 an official of the Housing Authority who is apparently now dead came and inspected his house and told him to pay rent to the Housing Authority. Then he says that he paid rent to the Housing Authority and exhibits receipts in 1970, 1971 and 1972. Then he says that the Housing Authority offered him an alternative site on a long term lease but refused to give it to him at what he has called a subsidised price. He has forborne to explain that term, and one would have assumed that he had declined the offer of the alternative site. But there is a letter from respondent exhibited to a second affidavit by the divisional manager showing that respondent in fact accepted the alternative site and announced his intention of moving on to it. Mr. Tappoo was invited to tell the Court what respondent's right to possession of the land was, but he was unable to take the matter further than asserting a right by acquiescence or laches. I do not think that will help him. Indeed, the respondent would appear to be simply holding a gun at the head of the Housing Authority in an endeavour to extort more favourable terms before he shifts on to the site which he has accepted.

So that if the applicant can bring itself within the Act it will be entitled to an order. Section 169 of the Act speaks of those who may apply for relief against any person in possession of land. They include the last registered proprietor of the land, that is the land of which the person summoned is in possession. The affidavit of the divisional manager states that the respondent - the person in possession of land - is in possession of part of the area of 1005 acres 3 roods 37 perches leased to the Housing Authority who hold a registered lease so that it may be characterised as 'the last registered proprietor'. Then Section 170 provides that the summons, that is the summons issued under section 169, shall contain a description of the land, and one would expect that to be the land of which the person summoned is in possession. This summons contains no such description but Mr. Gordon informs me from the Bar that the land is not fully surveyed and that it is not possible to give a more precise description of the area occupied by defendant. I accept that statement with some hesitation, although I would point out that the new site which the defendant has been given has apparently been surveyed as lot 44 Stage 3A Vitogo-Drasa D.P. 4276. In these circumstances I would expect that the divisional manager's affidavit in future applications will state whether it is possible to define the area occupied by the alleged trespasser precisely and if not, why not.

It seems to me that the Housing Authority have brought themselves within the Act and the respondent has been unable to prove, in the words of section 172, a right to the possession of the land. In my view laches and acquiescence do not give the respondent such a right. Accordingly an order for immediate possession will be made in pursuance of section 171 of the Act. The plaintiff does not ask for costs.

(SGD.) K.A. STUART
JUDGE

LAUTOKA,
7th April, 1977.