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Saunaka Land Purchase Co-operative Society Ltd v Ahmad [2010] FJHC 28; HBC110.2009L (5 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 110 of 2009L

BETWEEN:

SAUNAKA LAND PURCHASE CO-OPERATIVE SOCIETY LTD
Plaintiff

AND:

SHEIK AHMAD
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr H Ram for the Plaintiff
Mr F Koya for the Defendant

Solicitors: Rams Law for the Plaintiff
Koyas for the Defendant

Date of Hearing: 1 February 2010
Date of Judgment: 5 February 2010

INTRODUCTION

[1] This is an application under s 169 of the Land Transfer Act by the Plaintiff (Cooperative) to evict the Defendant whom they say is occupying without any rights to do so.

THE APPLICATION

[2] The application was supported by two affidavits by the Secretary of the Cooperative. The Cooperative is the registered proprietor of about 56 acres of freehold residential land in Nakavau, Nadi. It became registered owner in July 1970.

[3] The land was purchased by the Cooperative’s members from a Mrs F Watson. The Defendant’s father was one of the original members. The Defendant says in his affidavit that on 18 September 1983 he suffered a major stroke and his father built a house for him next to his on his father’ allotment which he later moved into. Sometime in March 1988, he had a difference of opinion with his sister, who is the executrix of the estate of his late mother, the result of which he dismantled the house that his father built and rebuilt it on another piece of land belonging to his late aunt, with her permission. He referred to various testamentary dispositions supporting his entitlement to occupy that part of the land that he is on. He says that the reason he has been targeted for eviction is that the Plaintiff needs his part of the land for access to the back portion of the land. Other members and their beneficiaries have also built houses on their respective allotments.

[4] The Plaintiff denies that the land was purchased jointly with its members. It says that the land was purchased by the Cooperative alone. The Secretary referred to the Cooperative bylaws to the effect that membership terminated on the member’s death and disputes the effect of the testamentary dispositions stated by the Defendant.

CONSIDERATION OF THE APPLICATION

[5] Counsel for the Plaintiff referred to Chand v Chandar [2003] FJCA 10; ABU0021U.2002S (28 February 2003). In that case, the Court of Appeal¹ dismissed an appeal against an order for eviction by the High Court because the order sought in the summons was not precisely stated to enable the Court to grant it. The defendant in that case occupied only part of the land owned by the plaintiff and the summons did not sufficiently identify that part of the land to enable any eviction order to be enforced. The same could be said of the current application.

[6] The regime under the summary eviction provisions under the Act is as follows:

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: Chand (supra).

[7] As to what amounts to sufficient cause, Pathik J in Deo v Mati [2005] FJHC 136 quoted and adopted a passage from the judgment of the Supreme Court (now the High Court) in Morris Hedstrom Ltd v Ali [Civil Action 153/87; see also Chand v Bacau [2009] FJHC 117; HBC115.2008 (11 June 2009):

The Defendants must show on affidavit evidence of 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.

[8] Counsel for the Plaintiff took a technical approach to his application. He submitted that it was the Cooperative and the Cooperative alone that bought the land. That is why the Cooperative alone appears as the registered proprietor in the Certificate of Title. The land was not jointly purchased by its members. The main thrust of his argument is that the members’ rights are merely rights to hold shares and not rights to occupy land.

[9] I do not accept this submission. It ignores the very purpose for the purchase of the land. The Cooperative was used as a convenient and practical vehicle to hold the land on behalf of its members. I think this is clear from the Cooperative’s Bylaws which states:

The name of the Society shall be Suanaka Land Purchase Cooperative Society Limited.
.

The objects of the Society shall be:

(a) To purchase from Mrs Ferrier Watson (the land) for the use and benefit of the members of the Society.

(b) To arrange for the subdivision, survey and distribution of holdings among the members so as to provide one holding but not more than one holding for each member, upon such terms and conditions as the general meeting shall determine, and to enter into an agreement with each member accordingly in the form annexed as Schedule A to these bylaws.

.

.

.

[10] These Bylaws clearly do not support Counsel’s argument that the members have only mere rights to hold shares and no right to possession of their parts of the land. The Defendant’s claim for possession has its origins in a founding member. There are issues of whether such a right can pass on to a beneficiary of a member and whether such a right can be transmitted by will or on intestacy under the Succession, Probate and Administration Act [Cap 60]. If such a right to possession can be transmitted to a beneficiary, then the Cooperative itself could be in breach of its own objects by attempting to evict the Defendant. The Society could also be in breach of its objects by not proceeding with the subdivision diligently. I think the Defendant has shown more than an arguable case for possession. The application therefore fails.

COSTS

[11] The normal rule applies but I award costs at the low end of the scale which I summarily assess at $300.

ORDERS

[12] The Orders are therefore as follows:

1. The application by Summons for eviction filed on 9 July 2009 is dismissed.

2. The Plaintiff shall pay the Defendant’s costs of $300 within 28 days.

Sosefo Inoke
Judge

______________

Endnote:

1. Reddy P, Kapi, Sheppard JJA