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Native Land Trust Board v Naqova [2012] FJHC 1279; HPP2.2009 (8 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HPP 2 OF 2009

BETWEEN:

NATIVE LAND TRUST BOARD
PLAINTIFF

AND:

SARAH NAQOVA
DEFENDANT

Appearances: Ms. Fifita for the Plaintiff.
No appearance of the defendant.

Date / Place of Judgment: Wednesday 08 August, 2012 at Suva.

Coram: The Hon. Justice Anjala Wati.

___________________________________________________________________________

JUDGMENT

CATCHWORDS:-

APPLICATION BY LESSOR FOR REMOVAL OF CAVEAT - LESSEE OWING SUBSTANTIAL RENTAL ARREARS - LOCUS STANDI OF LESSOR TO APPLY -CAUSE TO BE SHOWN BY DEFENDANT AS TO WHY CAVEAT SHOULD NOT BE REMOVED- ORDER MADE UPON CAUSE NOT SHOWN -CAVEAT REMOVED.

LEGISLATION:

LAND TRANSFER ACT, CAP. 131; S. 109(2).

___________________________________________________________________________

1. The plaintiff files this application to have the caveat number 433021 lodged by the defendant over the land comprised in Native Lease Number 13555 removed.
   
2. The plaintiff says that it is responsible for all dealings in respect of native land located within the provinces of Naitasiri, Lomaiviti, Rewa, Kadavu, Beqa and Lau.
   
3. The subject land is owned by Yavusa Matanilutu of Tamavua Village and Yavusa Nayavumata of Suvavou village respectively and it is located within the district of Naitasiri in the province of Naitasiri and falls under the responsibility of NLTB.
   
4. The defendant is the daughter of the leasehold tenant,Vasiti Mea Naqova, who is currently residing in the USA.
   
5. The defendant's mother was appointed as administratrix in her deceased husband's estate and inherited the subject land by way of transmission by death registered on 31 May 1995.
   
6. The defendant's mother owes substantial rental arrears to the plaintiff in the amount of $23,228.66 as at 31 December 2008. Despite service of numerous arrears notice, the defendant's mother has not paid any monies and or made ay arrangements to settle the arrears with the plaintiff
   
7. The plaintiff says that it intended to take further actions to recover the said arrears and/or cancel the said lease due to the accumulation and non-payment of rentals.
   
8. If the caveat remains, the plaintiff is prevented from carrying out its statutory role to effectively administrate the lease in the best interests of the landowners.
   
9. I have examined the provisions of the Land Transfer Act and I find that under s. 109(2), the plaintiff has the locus standi as the lessor to bring this action for removal of the caveat. It is for the defendant, under the same provision, to show cause why the caveat should not be removed.
   
10. S. 109(2) reads:-
    

"Any...applicant or registered proprietor, or any other person having any registered estate or interest in the estate or interest protected by the caveat, may, by summons, call upon the caveator to attend before the court to show cause why the caveat should not be removed, and the court on proof of service of the summons on the caveator or upon the person on whose behalf the caveat has been lodged and upon such evidence as the court may require, may make such order in the premises, either ex-parte or otherwise as to the court seems just,..."

11. The defendant's mother has undertaken to comply with the conditions of the lease. One of the conditions is that the defendant's mother will pay all rent and upon default the lessor may enter upon and take possession of the land leased.
    
12. The plaintiff has given the defendant's mother enough time to pay the arrears but the default has not been rectified. For the benefit of the landowners, the NLTB needs to administer the lease. The caveat will hinder the administration of the lease.
    
13. The defendant has been served and under s. 109(2) she had to show cause why the caveat should not be removed. She has failed to show cause and as such I order that the caveat no. 433021 lodged by Sarah Naqova be removed.
    
14. Each party to bear their own costs.
    

Anjala Wati
Judge

08.08.2012