IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 0083 OF 2002L

NO. 249 OF 2006

BETWEEN

CIVIL AVIATION AUTHORITY OF FIJI ISLANDS
Plaintiff

AND

N.G.SINGH
Defendant

Appearances: Suresh Verma & Associates for the plaintiff
Vasantika Patel for the defendant

Hearing: 20 September 2006
Decision: 24 November 2006

Ruling

[1] The parties have asked to have a preliminary issue determined and that is whether the court is functus given the judgment of Byrne J of 20 May 2003 dismissing the summons for ejectment.

[2] On 11 November 2004, 18 months after he dismissed the summons, Byrne J made the following orders:

(i) the instant action commenced by originating summons be treated as an action begun by writ
(ii) affidavits filed be treated as pleadings
(iii) the action to take its normal course.

[3] The order was sealed on 18 November 2004.

[4] In another case involving similar ejectment proceedings instituted by CAAFI, (the CAAFI ejectment cases) namely HBC 327/01, Justice Singh ruled that the Court was functus given Byrne J’s judgment of 20 May 2003. Learned counsel for the defendants, Ms. Patel has submitted that I adopt the position taken by Singh J.

[5] In contrast to the position adopted by Singh J, Justice Finnigan on 8 July 2005 ordered that eleven other CAAFI ejectment cases including several files now before me, be treated as actions commenced by writ of summons, affidavits filed be treated as pleadings and that the actions take their normal course. That order was sealed on 21 July 2005 and has not been appealed.

[6] It is clear from Byrne J’s judgment of 20 May 2003 that he dismissed the summons having determined that the issues raised by the competing affidavits should not be determined by way of the summary procedure provided for by section 169 of the Land Transfer Act (Cap. 131) (the Act).

[7] Section 172 of the Act is relevant. It provides that if the person summoned (under S. 169) proves to the satisfaction of the Judge a right to the possession of the land, the Judge shall dismiss the summons. An order dismissing the summons is subject to the proviso in section 172 which states:

"Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled."

[8] The respective submissions filed do not address the issue of the proviso. Is the plaintiff entitled to take further steps in the same proceedings or is it required to start afresh? That question is relevant to the preliminary issue before me. My determination of the functus issue will follow further submissions on section 172 of the Act. Learned counsel for the plaintiff, Mr. Verma is also required to submit on the law he relies on to advance the contentions made. Merely re-stating the background facts will not do.

[9] Mr. Verma also submitted that the cases before me are distinguishable from the judgment of Connors J in CAAFI –v- Limalevu Apisai [HBC 268/05L]. That judgment has been appealed. I do not accept Mr. Verma’s submission on this point. The central issues to be determined on appeal also concern the status and ownership of the subject land (Crown Lease No. 3469), section 13 of the Crown Lands Act and the validity of the tenancy agreement between the parties. The basis upon which the plaintiff asserts it’s right to recover possession of the land pursuant to section 169 of the Act is that it is the registered proprietor of the subject land, contained in Crown Lease No. 3469. Relevant issues concerning the plaintiff’s standing and whether it satisfies one of the three bases detailed in section 169 of the Act, which is now on appeal, will have a bearing on all pending CAAFI ejectment cases. Other pending cases have been adjourned to 23 April 2007 and will await the hearing and determination of the Limalevu appeal. Subject to how I decide the functus question, these cases will also be adjourned to 23 April 2007. 

[10] The case will be adjourned to a Friday chambers date in January 2007 when I will hear further argument from counsel.

[11] This ruling applies also to the other CAAFI ejectment cases before me, civil action numbers 320/01, 324/01, 325/01 and 326/01. A copy of this ruling is to be placed on all these files.

Gwen Phillips
JUDGE

At Lautoka
24 November 2006