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Ministry of Lands & Mineral Resources v Bi [2010] FJHC 352; Civil Action 14.2009 (20 August 2010)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 41/09

BETWEEN:

MINISTRY OF LANDS & MINERAL RESOURCES of
Gladstone Road SUVA
1st APPLICANT

AND:

THE ATTORNEY GENERAL OF FIJI Ro Qomate
House, LAbasa.
2nd APPLICANT

AND:

JANTUL BI daughter of Basiran of Tabia and
MOHAMMAD JAKIR f/n Jafar Ali of Valebasoga, Labasa.
DEFENDANTS

AND:

ABDUL HAKIM f/n Hamid Buksh of Valebasoga,
Labasa.
INTERESTED PARTY

Appearances: Ms M Lee of Attorney Generals for the Applicants
Mr. Sen of Maqbool & Co. For the Defendants

DECISION

This is an application for vacant possession made pursuant to section 169 of the Land Transfer Act.

The Ministry of Lands and Mineral Resources as proprietor of all Crown Lands and the office of the Attorney General as the legal representative of the state are the Plaintiffs in the action. By a Summon dated 28 October 2009 the Plaintiffs sought an order for vacant possession and the defendants are to show cause why they should not give up possession. The land in question is described as Lot 1 Plan T 1566(S) and situated at Bulileka, Macuata . The land was once leased to one Basiran the mother of Jantul Bi one of the Defendants and that the said Basiran had died on 22 August 1998. Basiran died leaving a Will in which she appointed her two daughters Rafiqan Bi and Sahiban Bi as joint executors and trustees. There was a dispute regarding probate which was not resolved as Sahiban Bi, one of the appointed trustees has died. The lease came to an end on the 30 June 2003 after the statutory extension of 20 years under the Agricultural Landlord and Tenant Act.

THE APPLICATION

The Plaintiffs in support of their application filed an affidavit sworn by Senitieli Veibose an executive officer of the Ministry of Lands and Mineral Resources who states that the said property was formally known as State Lease No: 214694 being Lot 2 Section 4 Labasa and that the said lease had expired on the 1st July 2003. That upon expiry the land was subdivided into two lots so that separate titles could be issued. The defendants were offered Lot No: 2 and Lot 1 was given to Abdul Hakim s/o Hamid Buksh. The Defendants are occupying Lot 1 and have refused to vacate the lot and move into Lot2. The new lease to be given to the Defendants is to be known as Lot 2 on Plan T 1566S.

On the 12 October 2005 the Defendant Mohhamad Jakir was shown the boundaries to the land and he signed the pro-forma form indicating that he has seen the boundaries of the land. On or about the 26 January 2007 the Defendants sought review of the decision and filed an application for Judicial Review. In a judgment delivered in May 2008 the judge dismissed the application with costs to be paid to the State. The respondents to date have not paid the costs. Subsequent to the judicial review decision notices to vacate were then served on the Defendants but they are refusing to vacate, hence this application. Both defendants will not be dealt with together in this ruling simply because they live together and their alleged right of occupation arose from the same "equitable" source.

RESPONDENTS POSITION

The Defendants in its affidavit in opposition sworn on 4 February 2010 by Mohhamad Jakir states:-

(i). That the entire proceedings is an abuse of process and was not properly instituted;

(ii). That he objected to the hearing of all the Summons as he was not advised as to which summons to be heard;

(iii). That the applicant has no power to institute the proceedings;

(iv). That he is the occupier and cultivator of all the land contained in Crown Lease No: 214694

(v). That the original title has been unlawfully subdivided and the purported approval notice has been unlawfully issued to the interested party as the relevant consent was not obtained from the Town & Country Planning;

(vi). That the sub-division of the land and the issue of the lease to the interested party has been done in contravention of the Sub-Division of Lands Act;

(vii). That he denies that he was asked to vacate and that he refused to vacate the land;

(viii). That he denies that he was shown the boundary pegs by the 1st Plaintiff;

(ix). That his application for Judicial Review was determined on the procedure and did not determine his right of occupation;

(x). That the Approval Notice issued to the interested party is unlawful and was done in breach of the relevant statutory consents;

(xi). That he denied that he was served with a notice to vacate;

(xii). That the applicant fraudulently issued approval notice to the interested party and that the particulars of fraud are:-

(a). That one Basiran f/n Kallan was the registered proprietor of all the land contained in Crown Lease No: 214694;

(b). That the said Basiran died leaving a Will bequeathing the lease to the 1st Respondent;

(c). That the Lease is subject to the provisions of ALTA act and has to be renewed;

(d). That the respondents was always in occupation and cultivation of the land;

(e). That the respondents were entitled as of right to the renewal of the lease;

(f). That cancellation of the said lease and creation of separate approval notice to the intended party was done through moral turpitude to defeat the rights and entitlement of the respondents;

(g). That the respondents as per right were entitled to have the said lease renewed under the provisions of ALTA;

(h). That the respondents were always lawful tenants of the applicant and the applicant has always been aware of the rights and interests of the respondents; and

(i). That the right of extension is a statutory right.

(xiii). That the interested party cannot in law have acquired a lease as he has never lived or occupied or cultivated the said land and the scam that was hatched by the servants and agents of the applicant to defeat the rights of the respondents.

(xiv). That they have cause to remain on the land and the application should be dismissed with costs.

There was, at the beginning of this matter, problems regarding short service of the Summons. The 1st Summons was issued on the 9 September 2009 and was to be put before the Judge on the 21 September. This return date was clearly less than the 16 clear days after service as required under section 170 of the Land Transfer Act. A further Notice of Motion was filed by the Plaintiff's on the 16 September returnable on the 21 September seeking an order to remove Rafiqan Bi from the action and to add Mohammad Jakir as a party. There was no need to hear the motion in view of the defect in the original Summons and the Plaintiffs were advised to refile their Summons.

On the 30th September a Summons was then filed by the Plaintiffs returnable on the 5th of October but this too did not comply with the requirements of section 170 of the Land Transfer Act. Then a further Summons was filed by the Plaintiffs on the 26 October 2009 returnable on the 23 November 2009. This was served on the 28th of October within the requirement of Section 170 of the Land Transfer Act. After objections from Counsel for the Defendants as to the number of Summons filed I then on the 8 February directed that the Summons filed on the 26 October 2009 and returnable on the 23 November be the active Summons and gave directions to the Defendants to file their affidavit in opposition. Both parties were represented by Mr. Sen of Maqbool & Co. Only one affidavit in opposition was filed and that was by Mohammad Jakir, Jantul Bi daughter of Basiran did not file any affidavit in opposition.

Before the matter was heard I requested both parties to prepare written submissions and address the Court orally at the hearing if need be. The Plaintiff prepared a submission but the Defendant did not. To date no submission has been received and this decision is made in the absence of the Defendants submission.

THE LAW AND APPLICATION TO THE FACTS

The procedure to be followed in an application for possession under section169 of the Land Transfer Act was stated in the case of Ram Chand & Ors. –v- Ram Chandar & Ors(2003) FJCA 10:

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.

It is not in dispute that the Plaintiff is the proprietor of all Crown Lands or State Land. The Director of Lands is deemed to be the Lessee of all crown lands pursuant to Section 5 of the Crown Lands Act however this function shall be deemed to be vested in the Minister responsible for the Act under section 29 of the Interpretation Act. There is no distinction in law between the Ministry of Lands and the Minister responsible for that Ministry. This is true notwithstanding that for the sake of clarity this action could have been initiated by the Plaintiff on behalf of the Director of Lands. It is further not in dispute that the Defendants Jantul Bi and Mohhammad Jakir reside on the land nor that Jantul Bi is the daughter of Basiran. It is further not in dispute that Jantul Bi is under the care of Mohammad Jakir and that they are related and that this action is against them as persons in possession of the land at the present time.

HAS THE DEFENDANT SHOWN CAUSE

In the matter of Morris Hedstrom Limited-v- Liaquat Ali CA No: 153/87 the Supreme Court said on p2 of its decision that:-

"Under Section 172 the person summonsed 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."

In opposition to the application only one affidavit was filed and that was sworn on the 4 February 2010 by Mohammad Jakir f/n Jafar Ali of Valebasoga Labasa. The basis of the Defendants opposition are as contained under paragraphs (i) to (xiv) above. The question that needs to be assessed is whether the basis of opposition as stated above show reasonable cause.

For this purpose I shall classify the responses into categories sufficient for the Court to analyse whether they form reasonable cause. Paragraphs (i), (ii), (iii),(xi) are what I call procedural objections. These are objections by the Defendant which relate to the manner in which the action was initiated to enable the Plaintiff to bring the action and does not in my view show a cause to remain on the land.

The Defendants were informed as to which Summons was to be heard by a direction given them through their Counsel on 8 February 2010 by the Court. There was no dispute as to which Summons was to be heard. The Defendant pleas that this application was an abuse of process but has not provided the Court with sufficient reasons to form that opinion. The opposition based on this proposition is not be accepted.

Paragraphs (iv) to (x) are what I call oppositions based on presumptions. It presumes that the Ministry of Lands acted outside its duty to deal with Crown Lands at the expiry of a lease in accordance with the wishes of sitting tenants. This presumption came to the fore when the Defendant's application for Judicial Review questioning this procedure failed. Indeed the defendant was correct in saying that the Judicial review was determined on procedure and did not determine their right of occupation. Unfortunately the procedure in question relates to a decision to limit his occupation at the expiry of the lease. I say limit because the Defendants were not totally denied any right to occupy a portion of land but the right to occupy which portion was determined for them and that decision was procedurally correct.

This leaves us with the defendants opposition based on the actions of the Plaintiffs as fraudulent. In support of this proposition the Defendant relies on the particulars numbered (a) to (j) under paragraph (xii). It is well to remember that fraud has many shades and most Courts has never ventured to lay down as a general proposition what shall constitute fraud. This is because actual fraud arises from acts and circumstances of imposition and can take the form of a statement of what is false or a suppression of what is true. A misrepresentation is said to be fraudulent when a person makes it knowing that it is false or without belief in its truth or recklessly without caring whether it is true or false. How does this fit in to the particulars provided by the Defendant or rather how does this advance the Defendant's proposition to show cause? The sentiments of Wills J in Re Companies Acts, Ex-p Watson (1888), 21 QBD 255 at 309 appears to me to be relevant here, the learned Judge said: "Fraud" in my opinion, is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think done as well as much unnecessary pain inflicted by its use where "illegality" and "illegal" are the really appropriate expressions"

Paragraphs (a), (b) and (d) of the particulars of fraud are, in my view, statements of facts. That is, that the late Basiran was the registered proprietor of the land, that he died leaving a will and that the respondents were always in occupation and cultivation of the land. These are not particulars of fraud and as submitted by the Plaintiffs Counsel in respect of Prasad –v- Hamid HBC 89/94 "the mere alleged knowledge of the Appellants interest was insufficient and incapable on its own to impute fraud"

Paragraphs (c), (e),(f),(g) and (i) of the particulars of fraud are misconceptions if not misguided. They perceive a legal position unsupported by the statute upon which it was founded. The head lease had expired at the time the Ministry of Land made a decision to sub-divide it and further the statutory extension under ALTA was given and had expired. This position offers no reasonable cause.

CONCLUSION

It is clear from Morris Hedstrom Limited –v- Liaquat Ali that what is required at the very minimum is some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced. There are no complicated issues of fact in this case to be further investigated and in fact in the absence of proper legal representation in the estate of the late Basiran both the respondents at the expiry of the Crown Lease are nothing more than mere trespassers. They have no legal standing under the estate and cannot claim as of right under it in the absence of the grant of probate. Even if there was grant of probate, the expiry of the head lease after the statutory extension under ALTA determined all rights to the property. It is further clear from the affidavit in opposition that no real particulars of fraud have been given, the particulars provided were mere statements and misconceived propositions and general allegations.

I therefore find that the Defendants has not shown cause to the satisfaction of the Court sufficient for them not to give up vacant possession as required under section 172 of the Land Transfer Act.

Under Section 172 of the Act the judge is empowered to make any order and impose any terms he may think fit. On all the facts and circumstances of this case and the defendants being very much aware that they are not denied a piece of land within the same block it is the Courts intension that they be given a period of one month to vacate the land and move into the portion of land allocated to them by the Ministry of Lands. Further the State should not be put to further expanse by the defendants any more than is necessary and for this reason costs should be awarded against them.

I therefore make the following orders:-

1. That the Defendants give up vacant possession of the said land within one month of this Order;

2. It follows that execution to be stayed for one month; and

3. The Defendants to pay the Plaintiff's costs which I summarily assess as $450:00.

H A ROBINSON
MASTER,

LABASA HIGH COURT
20 August 2010