IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBC 115 of 2008

BETWEEN:

Kissun Chand s/o Ram Kissun
Plaintiff

AND:

Joji Bacau
Defendant

Cor: Inoke J.

Appearances: Mr R. Chaudhary of Counsel for the Plaintiff
Mr S. Valenitabua (Snr) of Counsel for the Defendant

Plaintiff’s solicitors: Maqbool & Co, Labasa
Defendants’ solicitors: Valenitabua S. R. Esq.

Date of Hearing: 5 June 2009.
Date of Judgment: 11 June 2009

JUDGMENT

INTRODUCTION

1)	The Plaintiff applies under section 169 of the Land Transfer Act to evict the Defendant and his family from his land. The Summons does not specify which subsection he is proceeding under but it is obvious that he is proceeding under section 169(a) as the last registered proprietor.

2)	The Defendant opposes the application on three principal grounds, namely: 

(a) that the application is not “bona fide”; 

(b) that he is not a trespasser; and 

(c) that he had not received any lawful demand to vacate.

3)	After hearing Counsel and considering their submissions and the affidavit material I have come to the conclusion that the Plaintiff’s application fails and I dismiss it. I set out the Orders that I make and my reasons below.

THE PLAINTIFF’S SUPPORTING AFFIDAVIT

4)	The Plaintiff’s application is supported by an Affidavit in Support filed together with the Summons on 10 April 2008. This affidavit was not filed as a separate document but attached and bound together with the Summons. The affidavit appears to be signed by the Plaintiff and witnessed by a Police Officer with a stamp bearing the name “Oakleigh Police, Victoria”. The affidavit itself is undated as to when it was witnessed but the Annexure to it was dated 27 March 2008.

5)	The Summons and the Affidavit in Support were typed and bound very sloppily and poorly and should not have been accept by the Registry.

6)	I have criticised the Plaintiff’s court documents because all too often papers filed by solicitors are not up to the professional standard that is required of them. There is no excuse these days for documents not being properly typed up and bound. I have warned against poorly drafted affidavits elsewhere and repeat that warning here. Indeed, this poor standard of the Plaintiff’s affidavits, both in form and in substance, has contributed to a large extent to the dismissal of his application.

7)	This substandard work did in fact lead to the Defendant’s Counsel claim that this whole action is not bona fide. I can well understand his suspicions.

COURT HISTORY OF THE MATTER

8)	The matter was first called before the Master on 5 May 2008. It was then called on 4 more occasions, the last on 16 March 2009, when the Master adjourned it to be called before me on 26 March 2009 to fix a hearing date, as he had no jurisdiction to decide this contested application. Because I was sitting in Labasa on 26 March 2009 the Registry allocated a new date, 27 May 2009. The matter was further put back to 25 June 2009 because of the unavailability of Judges following 10 April 2009.

9)	I did not want the hearing delayed any further as all papers had been filed so I had the matter fixed for hearing on 2 June 2009. Unfortunately, Counsel for the Defendant did not appear on that date so I fixed a further date for hearing on 5 June 2009. Both counsel appeared and the hearing proceeded.

THE FACTS

10)	The Plaintiff’s Affidavit in Support, filed on 10 April 2008, with all its shortcomings, simply states:

a)	that he is the Plaintiff in this action;

b)	that he is “the registered proprietor of all the land comprised in the Certificate of Title No CT 37782” and known as “Tokotoko” and containing 6873 square metres situated in the district of Navua and annexes a copy of the Certificate of Title (the “Land”);

c)	that the Defendant is a trespasser and is occupying a dwelling constructed on the Land;

d)	that the Defendant has been given various notices to vacate the Land but have failed to do so; and

e)	that the occupation of the Defendant is illegal and unlawful.

11)	The Defendant filed his Affidavit in Reply on 29 September 2008. In his reply, the Defendant says:

a)	that he does not deny that the Plaintiff is who he says he is and the registered proprietor of the Land;

b)	that he and his family had been in occupation of the Land since 21 February 1998; it was authorised by and at the instigation of the Plaintiff; it was a favour in return for his wife’s assistance in securing the Plaintiff’s business visa to Australia in 1998;

c)	that the Plaintiff left for Australia on 22 February 1998;

d)	that before the Plaintiff left for Australia, he told him (the Defendant) and his wife to occupy the Land and house and to take care of the property until his return from Australia; they were to take care of everything including the premises which his father, Ram Kissun, occupied; to assist the Plaintiff’s father if he needed help;

e)	that the Plaintiff told him that he would give him “a piece of his land upon his return from Australia so that we could build our own house on it”;

f)	that the Plaintiff called him on 22 February 1998 and thanked him and that was the last he heard from him;

g)	that he cared for the Land and the Plaintiff’s father, who is now dead; and he continues to care for the Plaintiff’s Land;

12)	In respect of the Notice to Vacate, the Defendant denies that he received the notice that was addressed to a post office box because he says that he does not know of it. However, the Defendant admits that he received and acknowledged a copy of the same notice, albeit undated, from the Plaintiff’s brother-in-law on 30 October 2007. He says that the notice is “suspect”. He also says that the reference in the notice to a sale of the Land to the Plaintiff’s brother in law and the issuing of a Power of Attorney to the Plaintiff’s wife as donee confirm his suspicion that the notice was “manufactured”.

13)	I am not convinced that the signature is not that of the Plaintiff. The signature “K Chand” in the Plaintiff’s affidavit and the notice look very similar and in the absence of anything to the contrary I accept that the signature is that of the Plaintiff. I also note that the Plaintiff’s affidavit was sworn before a Police Officer in the Victoria Police Service in Australia and it is unlikely that he would have witnessed the affidavit unless he was satisfied that it was the Plaintiff that was before him. I am therefore not convinced by the Defendant’s argument that the Plaintiff’s application is not bona fide.

14)	The Defendant admits that he did receive the notice to vacate, albeit an undated one. The notice did request the Defendant to vacate and explained the reasons why he was being asked to vacate. I therefore find that the Defendant did receive a valid notice to vacate the Land.

15)	However, as to the effectiveness of that notice to terminate any licence or other rights that the Defendant my have in respect of the Land is a matter which, in my view, can only be resolved in a full trial. My reasons for coming to that view are set out below.

16)	In the notice to the Defendant, the Plaintiff states: “I have allowed you to stay in my house for the past nine years.” Although it did not go as far as to confirm that the Plaintiff promised to give a “piece of his land” to the Defendant, it does give credence to the Defendant’s claim that such a promise was made. A promise that if the Defendant looked after the Plaintiff’s Land and house and the premises occupied by the Plaintiff’s father, the Defendant would be given a piece of the Land. The Defendant also said that “we cared for the property and, later, for [the Plaintiff’s] father…We continued to care for the property after his death.”

17)	The Plaintiff filed an Affidavit in Response sworn by one Uday Pratap, a law clerk employed by the Plaintiff’s solicitors. Mr Pratap states that he was “authorised by the Plaintiff to swear the affidavit on his behalf”, and was “knowledgeable of the facts”. In response to the Defendant’s claims above, Mr Pratap simply says:”I say that the matters referred to therein are irrelevant and it confirms the licence to occupy given by the plaintiff was revocable.”

18)	This is a totally unacceptable way of responding to allegations of very relevant and significant facts and circumstances in a case. Such a failure to specifically respond to the Defendant’s claims leaves me with no option but to accept that his claims are proven for the purposes of this application. Secondly, it is not for the deponent to decide whether matters are relevant or not; it is for the court to decide. Thirdly, it is also for the court to decide whether the licence given to the Defendant is revocable or not. Making such mistakes, as in this case, is fatal for the deponent’s case.

THE LAW & APPLICATION TO THE FACTS

19)	Counsel for the Plaintiff referred me to the passage in the Fiji Court of Appeal decision in Ram Chand & Ors v Ram Chandar & Ors [2003] FJCA 10 which sets out the procedure to be followed:

“Section 169 of the Land Transfer Act (Cap.131) provides that the registered proprietor of land may summon any person in possession of land to appear before a Judge in Chambers to show cause why the person summoned should not give up possession of the land to the applicant. Section 170 provides that 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. By s.171, on the day appointed for the hearing of the summons, if the person summoned does not appear, the Court may act in his absence. By s.172, if the person summoned appears, he may show cause why he refuses to give up 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 or he may make any order or impose any terms he may think fit. The dismissal of the summons is not to prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled.”

20)	There is no issue here that the Plaintiff is not the registered proprietor entitled to bring these proceedings.

21)	The property is described in the Summons and Affidavit in Support and a copy of the Certificate of Title annexed and its authenticity is not disputed.

22)	The Defendant is in occupation of the Land and this is not in dispute either. 

23)	The Plaintiff wants the Defendant out. It is up to the Defendant to “show cause why he refuses to give up 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 or he may make any order or impose any terms he may think fit.”

HAS THE DEFENDANT SHOWN CAUSE?

24)	Should I accept the fact of the Defendant’s occupation and the Plaintiff’s un-denied promise to give a piece of the Land to the Defendant as satisfactory evidence of showing cause under section 172?

25)	Counsel for the Plaintiff cited Mr Justice Pathik’s judgment in Deo v Mati [2005] FJHC 136 in which His Lordship quoted and adopted a passage from the judgment of the then Supreme Court (now the High Court) in Morris Hedstrom Ltd v Ali [Civil Action 153/87]:

“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.” (my emphasis).

26)	He submitted that the Defendant has failed to meet the evidentiary proof required for this application. I disagree. The Defendant has given a reasonable explanation as to why he is in occupation, which occupation is not denied and in fact confirmed by the Plaintiff in his notice to quit. The Defendant further says that the Plaintiff promised that he would give him a “piece” of his Land for the services that he and his wife had rendered in the past and will in the future. The Plaintiff did not specifically deny that such a promise was made when given the opportunity of filing an affidavit in response.

27)	The words “or can establish an arguable defence” in the above passage from Morris Hedstrom Ltd (supra) do not appear in section 172. These words, in my view, with respect, enlarge the categories of “causes” which is available to the Defendant. In any event, it is not necessary for me to decide the point for the purposes of this application because I am satisfied that the Defendant has proven to my satisfaction, applying the test in Morris Hedstrom Ltd (supra), that he has “a right to the possession of the land”.

28)	Counsel for the Defendant referred me to the Fiji Court of Appeal decision in Shiu Narayan v Shell Fiji Limited [Civil Appeal 52/87]. The issue in that case was whether the defendant was in occupation personally or his company. The Court of Appeal found that there was a serious conflict on the issue of possession that the learned trial Judge could not and should not have attempted to resolve the conflict. At page 8, the Court said:

“Where there is a serious conflict raised by the affidavits filed section 169 application procedure is not one to be adopted and recourse should be had to court action.”

29)	Although not cited by Counsel, I find it relevant the Fiji Court of Appeal decision in Gurdial Singh v Shiu Raj [FCA 44/82], considered in Morris Hedstrom Limited (supra). The facts of Gurdial Singh are not dissimilar to the facts of the present case. In that case, “the trial Judge dismissed the application and the registered proprietor was not permitted to go back on a promise made to a former housegirl that she should have the right for life to occupy a portion of his land”. The trial Judge held that the registered proprietor was estopped from denying the fact of occupation. His Lordship’s decision was upheld on appeal. The Court of Appeal said this at page 5:

“At the hearing there was no dispute as to the occupation by (the) respondent for 22 years of the land in question without any attempt to evict her except a notice to quit dated 31 March 1982. Nor is it denied that her entry into the land was made with the approval of the appellant’s father, and later of the appellant himself. The items in dispute fall under only two headings: whether rent was offered by the respondent and refused by the appellant, and whether (the) appellant consented to the erection of her house. In her affidavits (the) respondent swore the affirmative in each case, while the appellant’s answer was an emphatic negative. But neither of these questions lies at the root of the matter. In our opinion all the learned Judge was required to do in these proceedings was either to make an order for possession or dismiss the summons; on the evidence before him the learned Judge dismissed the summons and in so doing concluded that the appellant was estopped from denying that the respondent had lived on the land for over 20 years to the knowledge of the appellant and without any effort on his part to evict her. On the facts of this case and particularly in view of the appellant’s insistence that the matter be dealt with under the summary provisions of the Land Transfer Act, the learned trial Judge was entitled to deal with this matter in the manner in which he did although we must say that it was also open to him had he so decided to order a full trial before the Court.”

30)	I am also guided by the statement of principle in the decision of the High Court of Australia in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, per Dixon CJ:

“In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture". These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951). which is referred to in Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470 , by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." (1956) 94 CLR, at pp 480, 481 But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. (at p305).”

31)	Similarly, Windeyer J in Jones (supra) said:

“15…the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 as follows: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." (at p321) 

16. This is plain commonsense. If authority be needed, two passages from R. v. Burdett (1820) 4 B & Ald 95 (106 ER 873) may be cited. Abbott C.J. said: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." (1820) 4 B & Ald, at pp 161; 162 (106 ER, at p 898) And Best J. said: "Nor is it necessary that the fact not proved should be established by irrefragable inference. It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just." (1820) 4 B & Ald, at p 122 (106 ER, at p 883) (at p321) 

17. As Wigmore points out (Evidence 3rd ed. (1940) vol. 2, ss. 289, 290, pp. 171-180), exactly the same principles apply when a party, who is capable of testifying, fails to give evidence as in a case where any other available witness is not called. Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case."

32)	Although Jones (supra) is a negligence case, this statement of principle is equally applicable, in my view, to the present issue at hand. The present case is not one where I have to choose between guesses. The facts proved by the Defendant form a reasonable basis for the conclusion that I have reached, i.e. that the Defendant has a right to "the possession of the land". It is more than the right of a mere licensee. The Plaintiff has not rebutted this evidence. He explains his failure by saying that the Defendant’s evidence is irrelevant and by inference not calling for rebuttal. He has done so at his peril.

33)	Having reached that conclusion, the Plaintiff’s application must fail. Even if I am wrong, I would have been bound by Gurdial Singh as a matter of precedent to dismiss the Plaintiff’s application because of the serious conflict in evidence. What orders do I make?

SCOPE OF THE ORDERS

34)	The Fiji Court of Appeal in Ajmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) gives some guidance:

"…section (172) 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.

See also Deo (supra).

35)	The Plaintiff insists that his notice to the Defendant to quit is valid. The notice says:

"Dear Friend

I have allowed you to stay in my house for the past nine years. Now I am ill and my wife has become the sole earner, my daughter has recently started university, and the cost is in excess of $60,000. I have sold the property to my brother-in law, who recently visited Fiji, and spoke to your wife regarding the house…

I gave you permission to stay in my house on a temporary basis, nine years is a long time, and I want my house back. You have overstayed your welcome.

Thank you

[Signed Kissun Chand]"

(my emphasis)

36)	I draw two inferences from the notice. Firstly, that the Plaintiff does not want his Land and house any more. The only reason he wants vacant possession is to effect the alleged sale to his brother-in-law. He is only interested in the money to pay for his daughter’s education and for his living expenses.

37)	Secondly, for the reasons that follow, I infer that the alleged sale to the Plaintiff’s brother-in-law did not take place, or in any event not concluded. The copies of the Certificate of Title that were attached to the affidavits (filed in April 2008 and September 2008) do not show the Plaintiff’s brother-in-law as registered proprietor. The Certificate of Title still showed the Plaintiff as registered proprietor. The notice to quit was written no later than 30 October 2007, the date on which the Defendant confirmed as having been served with the notice. If what the note says is true that "the property had been sold" then the sale would have occurred no later than that date and the Certificate of Title would have shown the Plaintiff’s brother-in-law as the registered proprietor. Further, the Plaintiff could not have brought these proceedings which were filed on 10 April 2008 as he would not have been the registered proprietor at the time of filing. I therefore conclude that the alleged sale did not take place. The Plaintiff cannot say that he is the registered proprietor and owner of the Land and then, at the same time, say that he had sold it to his brother-in-law and is not now the owner.

38)	The scope of the Order that is open to me is wide. I note also that dismissal of the summons shall not prejudice the right of the Plaintiff to take any other proceedings to which he may be entitled.

39)	The Defendant was promised a "piece" of the Plaintiff’s Land. The affidavits do not indicate which part of the land he occupies or which part the promise refers to. It is impractical and unfair to the Plaintiff that I order that the Land be subdivided. On the other hand, I think that it would be just if the Defendant is given an opportunity to buy the Land and improvements on it. The land is unencumbered so there is nothing to stop the Plaintiff from selling to the Defendant. If the Defendant buys it then the Plaintiff gets what he really wants and is not prejudiced. If the Defendant is not able to or is not interested in buying the land then he must vacate and the Plaintiff gets his land back and he can do what he wants. I think a period of 6 months to allow the parties to negotiate and the Defendant to get finance if required, in such difficult times, is reasonable. In the interim, the Defendant must continue to care for the Land and improvements as he has done in the past. The Orders that I make below reflect these considerations. I think such Orders are open to me on the authority of the two Fiji Court of Appeal Cases of Ajmat Ali (supra) and Gurdial Singh (supra).

COSTS

40)	The Defendant has succeeded in this application. Section 172 says that I "shall dismiss the summons with costs". Further, there is no reason to depart from the normal rule that costs follow the event. I therefore award costs to the Defendant, summarily assessed at $700.00

ORDERS

41)	The Orders that I make are as follows:

a)	The Plaintiff’s Summons is dismissed.

b)	The Plaintiff is to offer to sell to the Defendant the Plaintiff’s Land (CT 37782) and improvements thereon at a price and on such other terms to be agreed between them. If the parties do not agree on the price then it shall be fixed by a registered valuer mutually agreed for that purpose.

c)	If the parties do not come to an agreement or the sale does not otherwise conclude i.e. the relevant transfer lodged with the Registrar of Titles within 6 months from the date of this Judgment then the Plaintiff shall immediately vacate the Plaintiff’s Land and house.

d)	The Defendant shall continue to care for and not allow the Land and improvements thereon to go to waste and deteriorate whilst he is in occupation.

e)	Accordingly, any further action by the Plaintiff and proposed sale to anyone else is stayed for 6 months.

f)	The Plaintiff shall pay the Defendant’s costs, summarily assessed at $700.00 to be paid within 21 days.

Sosefo Inoke
Judge