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Gounder v Masirewa [2001] FJHC 177; HBC340.2000 (23 March 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 340 OF 2000

IN THE MATTER OF SECTION 169 OF THE LAND TRANSFER ACT

Between:

KRISHNA SAMI GOUNDER
f/n Subha Gounder

Plaintiff

And

MOSESE MASIREWA
ANA MASIREWA
Defendants

Ms. Gwen Phillips for the Plaintiff
Mr. Peter Howard for the Defendants

JUDGMENT

By Summons dated 22 August 2000 the Plaintiff applied under section 169 of the Land Transfer Act Cap.131 (hereinafter referred to as the "Act") for an order that the Defendants do give vacant possession of the land and premises comprised in Lot 58 Section 22 Samabula being Crown Lease Number 2721 (hereinafter called the "property"):

The Plaintiff filed an affidavit in support. He purchased the property under a mortgagee’s sale and became the registered proprietor. As the last registered proprietor he is entitled to make this application.

The plaintiff says that the defendants (the previous owners) are still in occupation of the property although they have no right to occupy it.

Notice to quit dated 10 February 1998 was given to the Defendants but they have failed to vacate.

The defendants filed an Affidavit in Reply on 21 September 2000. They in effect say that there are two actions, namely, HBC 377 of 2000 and HBC 63/99 pending in relation to the property arising out of mortgagee’s sale and that these should be determined first before dealing with this application under s.169.

Consideration of the issue

The only issue for Court’s decision is whether an order for vacant possession be made or not.

At the outset, in regard to other pending cases to which reference has been made by the defendants, namely, No. 63 of 1999 and No. 377 of 2000, the position is this: (a) Civil Action 63 of 1999, which came before Scott J. was stayed by His Lordship on 9 February 01 to await the outcome of the proceedings before me in No. 377 of 2000 and No. 340 of 2000; (b) in Civil Action No. 377 of 2000 I made certain orders on 8 February 2001 and on this day (23 February 2001). The position therefore is that the action is to continue between the parties. The parties are Mosese Masirewa and Ana Masirewa (Plaintiffs) and Colonial Mutual Life Assurance Society Limited (Defendant). I have this day made an order deleting the name of the second defendant (Krishna Sami Gounder) as a party to the action. The Plaintiffs in this action (377 of 2000) are claiming that the first defendant (CMLA) did not act in good faith in transferring the property. They are asking for an order that the transfer of CL.2721 be set aside.

This action being C.A. No. 340 of 2000 solely relates to s.169 application except that here the defendants have applied by Summons dated 10 October 2000 for leave to consolidate Civil Actions No. 377 of 2000 and No. 63 of 1999 with this action.

The hearing of this Summons was for 8 February 2001 but the defendants’ solicitors failed to appear and hence there was no one to argue for them in opposition or otherwise. In the result I have before me just the Plaintiff’s counsel to present his application under s.169.

It is undisputed that the plaintiff is the registered proprietor of the property which was acquired by him under a mortgagee sale. Despite notice having been given to quit and deliver vacant possession, the defendants have failed to vacate. Consequently the plaintiff has suffered loss.

Contrary to what the defendants state in their affidavit, consent to institute these proceedings has been given by the Ministry of Lands.

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide as follows:-

"171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment.

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."

It is for the defendants to ‘show cause’. This they have not done bearing in mind the Affidavit in Reply filed by them. I do not find that there is an arguable defence. Apart from that neither the defendants nor their counsel are present to argue.

The defendants raised a point that because certain actions are pending before this Court involving the defendants in relation to the property this Summons for possession should not be heard and that the said two actions be consolidated with this action. However, there is no one to argue the Summons for consolidation which I hereby dismiss for want of prosecution. In any case the pendency of the action is no bar to my hearing the summons for possession. In Dinesh Jamnadas s/o Jamnadas Lalji and Satish Jamnadas s/o Jamnadas Lalji v Honson Limited (Civ. App. No. 22/85 FCA) Mishra J.A. said:

"At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act."

Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

"..... that mere institution of .. proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper."

There are no complicated questions of fact in this case to be investigated. Therefore procedure under s.169 is most appropriate here. On this aspect in
Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

".... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."

In the outcome, on the evidence I find that the plaintiff is the last registered proprietor of the property and for the reason given hereabove he is entitled to immediate vacant possession of same irrespective of the pendency of the said two civil actions referred to by the defendants. The defendants have not "shown cause" to remain in possession as required under s.171 of the Act. They have not proved to my satisfaction any right to the possession of the property.

It is therefore ordered that the defendants give immediate vacant possession of the property to the plaintiff under the provision of the Act with execution stayed for 28 days from the date of this judgment. The defendants are to pay the plaintiff’s costs in the sum of $250.00.

D. Pathik
Judge

At Suva
23 March 2001