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Shahim v Zafar [2010] FJHC 336; Civil Action 161.2010 (29 July 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 161 of 2010

BETWEEN:

MOHAMMED SHAHIM
(f/n Abdul Sattar) of Caqiri, Nasinu, Carpenter.
Plaintiff

AND:

MOHAMMED ZAFAR
(f/n Abdul Sattar) of Caqiri, Nasinu, Sweet Seller.
Defendant

RULING

INTRODUCTION

[1]. Before me is an Originating Summons filed on 02nd March 2009 by the plaintiff pursuant to section 169 of the Land Transfer Act (Cap 131) seeking an order that the defendant do give up immediate vacant possession to the plaintiff of the premises located at Lot 28 R 1819 on Caqiri Sub-Division, Nasinu and comprised and described in Crown Lease No. 268404.

[2]. The plaintiff is the registered proprietor of the property in question. The defendant is his brother. The land in question is a Crown Lease. The plaintiff annexes to his affidavit a letter from the Director of Lands confirming that he has duly consented to the commencement of these section 169 proceedings.

[3]. The plaintiff deposes that in or about May 2002, the defendant came to his house and pleaded with the plaintiff to let him live on the property with his family for a couple of months as he had no place to live. Out of pity, the plaintiff had allowed them to occupy a small 2-bedroom flat on the property, but only for a few months as the defendant had requested.

[4]. After a few months, the plaintiff asked the defendant to vacate the property. However, the defendant refused and stayed put. This caused the plaintiff to issue a notice dated 30th November 2006 on the defendant seeking vacant possession. However, again, the defendant ignored the notice and stayed put.

[5]. The plaintiff then instituted proceedings in the Nasinu Magistrates Court but that was dismissed as the Magistrate was of the view that she had no jurisdiction to deal with the matter. Hence, the plaintiff has instituted these section 169 proceedings.

[6]. The defendant has not filed any affidavit in opposition. However, I recorded his evidence in Court under oath on 15th July 2010 after first explaining to him the summary nature of the section 169 proceedings and that the law places the onus on him to show cause under section 172 of the Land Transfer Act (Cap 131).

[7]. Frankly, all that the defendant said in evidence was that he was entitled to 50% of the property as the plaintiff was his biological brother. After much hullabaloo about his blood relationship with his brother, the defendant said “if I am to move out of the property, I seek 6 months”.

LAW

[8]. Section 169 of the Land Transfer Act (Cap 131) provides as follows: -

“The following persons 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 to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

[9]. That the plaintiffs are the registered proprietors of the property is not disputed. The defendant has to ‘show cause’ why she should not give up vacant possession.

[10]. Sections 171 and 172 of the Act provide 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 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."

CONCLUSION

[11]. The defendant's explanation as to why he refuses to give vacant possession of the property in question is not sufficient. The fact that he is the brother of the plaintiff does not give him a right to possession of the property.

[12]. Accordingly, I order that the defendant do forthwith within 21 days of the date of this ruling give vacant possession of the property to the plaintiff. I make no order as to costs.

Anare Tuilevuka
MASTER

At Suva
29th day of July 2010.