IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 248 OF 2004

Between:

RISHI DEO
f/n Muni Lal and
SANJALA SARNI LATA
f/n Sukh Deo
Plaintiffs

and

TARA MATI
f/n Kunj Behari
Defendant

Mr. M. Arjun for Plaintiff 
Mr. Eroni Verewatatini for Defendant

JUDGMENT

By originating summons filed 2 July 2004 the plaintiffs seek an order for vacant possession of part of land comprised in Crown Lease No. 11266 being lot 6 on Plan No. R.2074 and Lot I on Plan No. 502002 Baulevu situated in the district of Naitasiri in the Island of Viti Levu (hereafter referred to as the “property”).

The plaintiffs filed an affidavit in support of the summons. The defendant has opposed the application and on 4 August 2004 filed an affidavit in opposition to which the plaintiffs replied on 27 August by affidavit.

This matter was placed before me in November 2004 when I was going to proceed on long leave and hearing was set down for 7 March 2005. Written submissions as ordered were filed on the eve of Legal Vacation on 10 December 2004.

Plaintiffs’ contention

The plaintiffs say that after obtaining the consent of the Director of Lands they instituted the present proceedings for vacant possession.

They say that the defendant is an illegal occupant of the property and no consent of the Director of Lands has been obtained for him to occupy the property.

Notice to Quit dated 1 May 2004 was served on the defendant.

The plaintiffs are the registered proprietors of the said protected lease (the property).

Defendant’s contention

The defendant says that she was not aware of the transfer of the property to the plaintiffs until she was told by her solicitors.

She denies that she is in illegal occupation of the property but that she is there ‘as of right’.

The defendant then outlines to Court in her affidavit in response to the summons that her late husband Nand Lal was given a piece of land on the property to live there and he built a dwelling-house thereon. She has lived there for 50 years. She lives on the property with her 24 year old son. Her house is worth $20,000 and farm $5,000.00

She said that on the faith of the representations made to them they and their sons invested monies in preparing the farm land for cultivation, planting and doing major renovations to their dwelling-house and have incurred expenditure on the upkeep of the property.

The defendant says that if an order is made to vacate she will suffer substantial loss and damages in that she will have to demolish her three bedroom partly concrete, wood and iron house which will be damaged in the process and it would be of little value.

The defendant’s counsel outlined the history of the land to the effect that representation was made to her husband that he could remain on the land. However, many years later it was transferred to the plaintiffs but she did not know of the transfer.

Counsel submits that the plaintiffs had the property transferred into their names unlawfully which constitutes “wrongful conspiracy resulting in damages to the defendant and her family”.

It is further submitted that there was fraud on the part of the plaintiffs. 

Consideration of the application

It is an undisputed fact that the plaintiffs are the registered lessees (proprietors) of the property being Crown Lease (Protected).

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

“s.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.”

s.172. If a 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 defendant to ‘show cause’. 

Although the defendant has alleged fraud, there are no complicated questions of fact to be investigated. The procedure under s169 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) 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.”

On the requirements of section 172 the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said as follows and it is pertinent:

“Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to 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.”

The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Ajmat Ali s/o Akbar Ali and Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:

“It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words “or he may make any order and impose any terms he may think fit” These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless “cause” is immediately shown. (emphasis mine)

I have borne the above passage in mind in determining this action.

On the evidence before me the defendant is unlawfully on the property although she came to be in occupation in the way she outlined. This does not mean that she is entitled to remain on the property for ever. The Director of Lands, as the lessor, will not recognize her despite her assertion that she is there ‘as of right’ and this has not been legally established to entitle her to claim to be in possession vis a vis the registered proprietor.

In the context of this case the provisions of sections 39 and 40 ought to be borne in mind.

Section 39(1) and (2) provides:

Section 39(1)

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register constituted by the instrument of title, thereto, but absolutely free from all other encumbrances whatsoever except:-

(a)	the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and

(b)	so far as regards any portion of land that may be by wrong description or parcels or of boundaries be erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and 

(c)	Any reservations, excepts conditions and powers contained in the original grant.

39. (2) Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act.” 

Section 40 states: (purchaser not affected by notice): 

Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud. (emphasis mine)

In the said sections of the Act there is reference to ‘indefeasibility of title’
and ‘fraud’. The defendant alleges ‘fraud’ on the part of the plaintiffs.

It is clear from the affidavit evidence before me that, as required by law, no particulars of alleged ‘fraud’ have been given. They are just wild and general allegations. As against these allegations, the Court has before it the plaintiffs as the registered proprietors of the property.

I have dealt extensively with what constitutes fraud in the case of Sofia Shanaz Shah f/n Dildar Shah and Aleem Shah f/n Shorat Ali Shah v Nimilote M. Fifita (Civil Action No. 392 of 2003 – 23.6.04 judgment) and for a full consideration of the subject I refer counsel to that case.

Conclusion

On the facts and circumstances of this case although I do not find fraud established against the plaintiffs to affect their proprietorship of the property, the plaintiffs knew that the defendant was in occupation and spent money building their dwelling-house. They should have ascertained the circumstances under which she came to be on the land.

On the evidence before me I find that the defendant has not shown cause to my satisfaction as required under s172 of the Act why she should not give vacant possession of the property. However, she is entitled to be paid the value of the dwelling-house either at a price agreed upon or at a valuation. Alternatively, the defendant is ordered to remove the building at the cost of the plaintiffs.

For these reasons the plaintiffs are entitled to immediate vacant possession of the property on conditions stated hereabove.

It is therefore ordered that the defendant give vacant possession of the property upon payment to her of the value of the dwelling-house after valuation unless the parties agree to a price or alternatively remove the building at the cost of the plaintiffs within three months. And it is further ordered that execution is stayed for three months which means that either compensation or removal should be finalized within three months.

Each party to bear his/her own costs.

D. Pathik
Judge

At Suva
16 June 2005