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Yaqara Pastoral Company Ltd v Babou [2012] FJHC 1286; HBC173.2010 (17 August 2012)

RULING

INTRODUCTION

[1]. Yaqara Pastoral Company Limited (“YPCL”), a limited liability company having its registered office in Tavua, seeks an Order of this Court against Ratu Joseva Babou and Lote Sauvana (“defendants”), to show cause why an Order for immediate vacant possession of the property comprised in Native Lease No. 29044 being Lot 1 Plan RR 894 known as Vatukaloko containing an area of 533 acres situated at Yaqara, Rakiraki, should not be made against them. The application is made pursuant to section 169 of the Land Transfer Act (Cap 132).

[2]. A copy each of two Eviction Notices prepared by Chandra Singh & Associates dated 03 October 2009 one addressed to Babou and the other to Sauvana, are annexed to an affidavit sworn by Elisapeci Talica on 02 September 2010 and filed herein support of the application. These Notices were duly served and no issue is raised about their form.

[3]. Section 169 of the Land Transfer Act (Cap 131) states 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.

[4]. YPCL is the last registered proprietor of the property in question. A copy of Native Lease 29044 is annexed to Talica’s affidavit. It confirms that YPCL is the last registered proprietor of the lease in question. YPCL, having established its proprietorship over the property in question and by that, its locus to apply under section 169, the onus then shifts to the defendants under section 172 of the Land Transfer Act to show cause as to why vacant possession should not be given. Section 172 states as follows:

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.

[5]. In order to prove to the satisfaction of this court a right to possession of the land, all that is required of the defendants under section 172 is to demonstrate by affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169.

[6]. This does not mean that they have to prove conclusively a right to remain in possession. Rather, it is enough that they show 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).

ANALYSIS

[7]. After considering the material in all affidavits filed for and on behalf of both parties and the submissions of both counsel, I conclude that the defendants have failed to show any tangible evidence supporting an arguable case for them to remain in possession. The undisputed facts are as follows:

(i) YPCL was issued an agricultural lease over the land in question by the iTLTB (formerly the Native Lands Trust Board).

(ii) iTLTB had issued the agricultural lease in favour of YPCL over the land in question.

(iii) the defendants are in occupation of the land.

Defendants' Argument

[8]. The defendants' main argument appears to be premised on the following allegations:

(i) that they do have a right of tenure on the land because their mataqali (mataqali Nakubuti tokatoka Navunilake) is the beneficial traditional owner (in accordance with the register in the iTaukei Lands & Fisheries records) according to custom.

(ii) this right is enshrined in section 3 of the Native Lands Trust Act (Cap 133).

(iii) that the iTLTB, unbeknownst to them, had issued a lease to YPCL without their consent and/or without consulting the mataqali.

(iv) their village "predates"- as they say - the issuance of the said lease to YPCL and that YPCL has always been aware of the existence of the village. They also say that the plaintiff "accepted the lease "with full knowledge of our occupational interest and in the circumstances it is now estopped from evicting us".

Reasons

[9]. My reasons for finding that the defendants do not have an arguable case to remain in possession are as follows:

(i) the land in question was leased out to the defendant by the iTaukei Lands Trust Board (iTLTB) formerly the Native Lands Trust Board. The iTLTB is the statutory trustee empowered under the iTaukei Lands Trust Act (Cap 133) to control and administer all iTaukei land for the benefit of the iTaukei owners[1].

(ii) it is true that itaukei Fijians have a right of tenure on land over which their mataqali is the beneficial traditional owner (in accordance with the register in the iTaukei Lands & Fisheries records) according to custom. This right is enshrined in section 3 of the iTaukei Lands Act (Cap 133)[2].

(iii) by virtue of section 4 (see footnote 1) and section 8 of the Act, the iTLTB is empowered to grant leases over portions of itaukei land – provided of course that the land is not included in a native reserve and is not being beneficially occupied by the itaukei owners.

(iv) but there is no evidence before me that the mataqali Nakubuti tokatoka Navunilake is indeed the traditional beneficial owner of the land in question – let alone – that the defendants are indeed members of the said mataqali. The defendants - who were represented by the firm of Haroon Ali Shah Esquire (now wound up) – had not bothered to adduce any documentary evidence from the records of the Native Lands & Fisheries Commission to substantiate their claims.

(v) in the absence of such evidence, whether or not the iTLTB is legally obliged under the Native Lands Trust Act to consult them before issuing a lease on the land – is a non-issue – although having said that, there is ample case law on this point (see Ratu v NLDC [1987] FJSC 9; [1991] 37 FLR 146 (17 February 1987; Meli Kaliavu & Ors v NLTB 5 FLR 17; Naimisio v Dikau No. 1 & Ors v NLTB & Anor (Suva Civ. 801/84); Serupepeli Dakai No.1 & Ors v NLDC & Ors [1977] FamCA 15; 29 FLR 92).

(vi) I remind myself that the defendant's burden in a section 169 application where the plaintiff's title is established is to show "some tangible evidence" establishing a right to possession or at least supporting an arguable case for such a right (see Supreme Court decision of Morris Hedstrom Limited v. Liaquat Ali (supra)).

(vii) in the absence of such evidence, and (to borrow the words of Cullinan J in Ratu No. 2 v NLDC (supra)), "[a]s I see it, the presumption of regularity must operate in favour of the Board therefore".

ORDERS

(i) I grant Order in Terms of the application. The defendants must vacate the land in question described herein above paragraph 1 within 30 days. Costs to the plaintiff in the sum of $800-00 (eight hundred dollars) only.

Tuilevuka
Master

At Lautoka
17 August 2012

^[1]section 4 (1) of the iTaukeiLands Trust Act (Cap 134) vests in the iTLTB the control of all native land:

The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of the iTaukei owners.

^[2] Section 3 states as follows:

3. Native lands shall be held by native Fijians according to native custom as evidenced by usage and tradition. Subject to the provisions hereinafter contained such lands maybe cultivated allotted and dealt with by native Fijians as amongst themselves according to their native customs and subject to any regulations made by the Fijian Affairs Board. and in the event of any dispute arising for legal decision in which the question of the tenure of land amongst native Fijians is relevant all courts of law shall decide such disputes according to such regulations or native custom and usage which shall be ascertained as a matter of fact by the examination of witnessed capable of throwing light thereupon.