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Singh v Nisha [2011] FJHC 651; Civil Action 2 of 2011 (14 October 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

Civil Action No. 02 of 2011

IN THE MATTER of an application under
section 169 of Part XXIV of the Land Transfer Act (Cap 131)
for an Order for immediate vacant possession.

BETWEEN:

ASMUN NISHA SINGH
of Brisbane Australia.
Plaintiff

AND:

JAIBUL NISHA
of Lebaleba Sigatoka current occupier of registered Crown Lease No. 17493,
Maro, Sigatoka.
Defendant

Before : Master Anare Tuilevuka
Counsel : Mr. T. Bukarau for the Plaintiff
: Mr. Roopesh Singh for the Defendant

Date of Ruling : 14 October 2011

RULING

[1]. The plaintiff is the registered proprietor of Registered Crown Lease No. 17493 situated in Maro Sigatoka. The property is a protected agricultural lease under section 13 of the Crown Lands Act. A copy of the lease is exhibited to the plaintiff's affidavit. The property was transferred to the plaintiff in July 2010. The plaintiff emigrated to Australia in 1989[1]. Obviously, at the time the property was transferred to the plaintiff, she had emigrated to Australia.

[2]. The plaintiff applies under section 169 of the Land Transfer Act (Cap 131) against the defendant to show cause as to why an order for immediate vacant possession should not be made against her with respect to the above property.

[3]. It is not in dispute that the plaintiff's name appears on the lease title as the last registered proprietor. Once that is established, the onus shifts to the defendant under section 172 of the Land Transfer Act to show cause as to why vacant possession should not be given.

[4]. In discharging that burden, the defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169. This does not mean that she has to prove conclusively a right to remain in possession. Rather, it is enough that she shows some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

[5]. Having considered the affidavits filed by both parties, I decline to grant order in terms of the summons. In my view, the defendant has discharged her burden under section 172 by showing that she has an arguable case for a beneficial and equitable interest. My reasons follow:

• (a) the defendant alleges that she was brought onto the property with the express permission and consent of the plaintiff's predecessor in title, Ms Zubeda Nisha – who is the plaintiff's mother and the defendant's estranged de facto husband's mother – to assist in the cultivation of the cane. Accordingly, the defendant and her two sons have been on the land and cultivating since August 1993. They only stopped cultivating the land in 2005 because they were prevented from doing so.
  
• (b) the above allegation is supported by a document dated 04 March 2008 obtained by the defendant from the Lands Department[2] file reference 4/11/1128. The document is signed by the plaintiff and her mother, Mrs. Zubeda Nisha, and purports to be an undertaking to regularize the defendant's residential occupation of an appropriate portion of the land in question for residential purposes.
  
• (c) Ms. Prasad, counsel for the Director of Lands, the nominal party, indicated in court that the undertaking was in fact insisted upon by the Director of Lands as a condition of the transfer of the lease from Zubeda Nisha to the plaintiff.
  
• (d) the date of the above document precedes the transfer of the lease to the plaintiff by some two years. The plaintiff therefore took the transfer of the lease with notice of the beneficial equitable interest that the defendant alleges. It is a triable issue as to whether or not the defendant's alleged interest is established and if so, whether the plaintiff took the transfer of the property in question subject to those interests.
  
• (e) the defendant deposes in her affidavit in opposition that she has made substantial improvements on the dwelling house that she occupies at her own expense. This, allegedly, was encouraged by the plaintiff's predecessor in title. When considered together with the fact that the plaintiff has been residing on the land with her two sons since 1993, and the purported undertaking by the plaintiff and her mother to subdivide the land and carve out a piece for the defendant's residential use – all raise a substantive triable issue as to whether the defendant indeed has a beneficial equitable interest in the land.
  
• (f) the statements of: Mahendra Pratap Gosai, advisory councilor of Maro dated 30 October 2010; Mohammed Azim, former sardar of Waigaligali gang No. 2 dated 01 November 2010, and Abdul Sahid the sardar of Waigaligali gang No.2 dated 01 November 2010 – all confirm that the defendant and her sons have lived on the land in question and harvested cane thereon from 1993 to 2004.
  

[6]. Furthermore, and for the record, Mr. Singh, counsel for the defendant highlighted in his submissions that the plaintiff's acquisition of the property may yet be tainted with illegality. Mr. Singh submits that, at the time of the transfer, the plaintiff was an Australian citizen holding an Australian passport and the transfer should have been consented to by the Minister of Lands under section 6 of the Land Sales Act.

ORDERS

(a) the plaintiff's application is dismissed.
(b) costs to the defendant which I summarily assess at $600-00 (six hundred dollars only) to be paid in 28 days.

.................................
Anare Tuilevuka
Master
At Lautoka
14 October 2011

^[1] See paragraph 17 of her affidavit.
^[2] See Exhibit No. 2 in the defendant’s affidavit.