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Construction Equipment Hire Ltd v Elder [2012] FJHC 1424; HBC121.2012 (27 September 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 121 of 2012

IN THE MATTER
of the property comprised in Certificate of Title No. 40127, Lot on DP 9822

AND

IN THE MATTER
of the High Court Rules, Order 113

BETWEEN:

CONSTRUCTION EQUIPMENT HIRE LIMITED
a company having its registered office at Suva.
PLAINTIFF

AND:

EFEREMO ELDER
an other occupants of the property comprised and described in Certificate of Title No. 40127, Lot 1 on DP 9822, Wailekutu, Suva, Occupation unknown to the Plaintiff.
FIRST DEFENDANT

AND:

VIJAY ANAND
and other occupants of the property comprised and described in Certificate of Title No. 40127, Lot 1 on DP 9822, Wailekutu, Suva, Occupation unknown to the Plaintiff.
SECOND DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Ms. Drova Milinia for the Plaintiff
Mr. Vosarogo Vilimone for the Defendant

Date of Hearing : 23rd August, 2012
Date of Decision : 27th September, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff instituted this action in terms of the Order 113 of the High Court Rules of 1988. The Plaintiff who obtained the title for the land described in the amended originating summons and alleges that the Defendant is in occupation of the portion of the said property, near river bank. The Defendant in his affidavit in opposition produced evidence to the effect that he is in possession of land 'formed as a result of soil accretion and diversion of the Wailekutu Creek'. The issue is whether the Defendants have encroached the Plaintiff's land. The Plaintiff has submitted a survey plan which indicated a partial encroachment by the Defendants, but the said survey has not addressed the vital issue of soil accretion and or diversion of the creek. There is a serious issue as to whether the land occupied by the Defendant was formed due to soil accretion and or diversion of the creek, which goes to the root of identification of the subject matter of the Plaintiff. In the wake of evidence pointing to a serious issue as to the identity of the corpus, it is needed to adduce oral as well as documentary evidence perhaps, spanning for generations as such things in the nature of soil accretion and diversions of the creek, happen over a considerable time period. The summary procedure under Order 113 is not suitable for determination of such issues that needs oral evidence of witnesses including the surveyor who will be subject to cross examination to determine the complex issue of soil accretion and or diversion of creek and also to the accuracy of the survey plan produced and to the method he adopted to locate the measuring points of the said plan. When the identity of the corpus is at an issue with contrary evidence from an independent entity like iTaukei Land Trust Board and it cannot be addressed in summary manner. The plan produced by the Plaintiff needs to be verified for its accuracy and the error of margin etc. And after ascertainment of accuracy of that only the court can determine whether the Defendants have encroached the Plaintiff's land.
   

2. FACTS
   

2. By an amended Originating Summons dated 1st June, 2012 the Plaintiff made an Application to this Court for the following orders;
   
   1. That the first and second defendants give up immediate vacant possession to the plaintiff of the premises located near the river bank comprised and described in Certificate of Title No. 40127, Lot 1 on DP 9822, comprising an area of 4101m2 and located at Wailekutu, Suva of which the Plaintiff is the registered proprietor; and
      
   2. That the costs of this application be paid by the said persons.
      
3. The Plaintiff is the registered proprietor of all of the land comprised and described in Certificate of Title No. 40127, Lot 1 on DP 9822, comprising an area of 4101m2 and located at Wailekutu, Suva.
   
4. The Petitioner alleges that the First and Second Defendants currently occupy the portion of the said property near the river bank. It further state that substantial lean to residential buildings constructed of timber, iron and concrete is erected on the said property by the said Defendants. Defendants have been residing over the piece of land over 23 years, after they have personally approached the landowners the Turaga ni Mataqali of Waiqanake village to build their houses on the piece of land.
   
5. That upon receiving notice to quit from the Plaintiffs the defendants approached Itaukei Land Trust Board and Itaukei Land Trust Board advised the Defendants after a survey and confirmed that the Land is State Foreshore Land and that the Land is also a result of soil accretion and diversion of the Wailekutu Creek, not forming part of the CT No. 40127 on Lot 1 on DP 9822.
   

100. ANALYSIS.
     

6. Order 113 of the High Court Rules of 1988 state as follows:-
   

'1. Where a person claims possession of land which he or she alleges is occupied solely by a person or persons (not being a tenant or tents holding over after the termination of the tenancy) who entered into or remained in occupation without his or her licence or consent or that of any predecessor in title or his or her, the proceedings may be brought by originating summons in accordance with the provisions of this Order.' (emphasis is added)

7. In Dutton v Manchester Airport [1999] All England Law Reports 675 at 679 it was held :
   

'Order 113 was introduced in 1970 (by Rules of the Supreme Court (Amendment No 2) 1970, SI 1970/44), shortly after the decision for this court in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right – that is to say, against trespassers. The order does not extend or restrict the jurisdiction of the court.

The pertinent issue is the identity of land of Plaintiff, and whether Defendants are in possession of State Foreshore Land.

8. The Supreme Court Practice (White Book) 1999 p 1795 113/8/3 states as follows
   

'In proceedings under this order, the only claim that can be made in the Originating Summons is for the recovery of possession of land; notwithstanding O.15 r. 1 no other cause of action can be joined with such a claim in proceedings under this order, and no other relief or remedy can be claimed in such proceedings, whether for payment of money, such as rent, mesne profits, damages for use and occupation or other claim for damages or for injunction or declaration or otherwise. The Order is narrowly confined to the particular remedy described in r.1.

Where the existence of a serious dispute is apparent to a plaintiff he should not use this procedure (Filmat Ltd v Avery [1989] E.G.92) In Eyles v Wells [1991] CA Transcript 376, the Court of Appeal following Greater London Council v Jenkins, above, held that the Court had no discretion to prevent the procedure being used in cases that fell within the rule O14, r 7 may assist in considering the appropriate order for costs where the plaintiff was aware of a serious dispute.' (emphasis is added)

9. The Plaintiff submits that the findings made by the Itaukei Land Trust Board is not conclusive but merely an opinion as it is not supported by proper reports from either a registered surveyor nor a report from the director of lands to confirm the allegations being made by it. By the same token the survey plan submitted by the Plaintiff is not conclusive and has more pertinently does not address the issue of the soil accretion and the diversion of the creek. This can be done through a series of previous plans taken during a particular time period being superimposed on the survey plan submitted to the court. The surveyor has not only failed to do any superimposition of previous plans, but has not addressed the vital issue of diversion of the creek and the accretion of the soil in professional manner, using his expert knowledge. The letter of the Itaukei Land Trust Board, unreservedly state that the land occupied by the Defendants was State Foreshore Land and further elaborate that it had happened due to the soil accretion and or diversion of creek. This needs to be addressed properly and without that no determination of eviction is possible.
   
10. The court cannot delegate its analytical power of the evidence to any expert however experienced that person in his own field or science. The final decision is taken by court making use of the expert opinions when there is a dispute as to their opinions. The surveyor is an expert in his field of surveying but if he has not addressed the vital issue and submitted a survey report it is worth nothing more than opinion of an expert, which had not addressed the relevant issue. In such circumstances the expertise of the person, stated in the affidavit of the surveyor, cannot add any evidential weight, as the report cannot be of any use to the court in order to determine the issue before the court. This is the ratio of Wakefield v Bishop of Lincoln (1921) 90 LJPC 174 (see Cross on Evidence 2nd Australian Edi p622)
    
11. The survey report of the Plaintiff has not addressed the issue of diversion of the creek over the years. This can be done through superimpositions of old survey plans and by doing this it can be safely deduced that whether there was soil accretion and or diversion of the creek over the years. The surveyor has not submitted his expert opinion either on the issue of diversion of the creek or soil accretion. Admittedly the parties have sought the opinion of iTaukei Land Trust Board on this issue and their opinion was in favour of the Defendants.
    
12. There is a survey plan annexed to Plaintiff's title, but that is not conclusive as there is no indefeasibility attached to the plan as opposed to title. If some State Foreshore Land is by mistake or otherwise included in such a plan attached to the title, the indefeasibility of the title will not be attributable to such a plan and the State Foreshore Land will not change its status and will remain so. If not a party can fraudulently acquire State Foreshore Land by attaching a survey plan which include State Foreshore Land.
    
13. Plaintiff knew the issue of possession of the Defendant dependent on the issue of diversion of the creek and soil accretion, but did not address the issue in the survey plan. Without addressing the core issue the Plaintiff filed this originating summons for eviction knowing the seriousness of the issue involved in the matter. In White Book (1999) it was stated 'Where the existence of a serious dispute is apparent to a plaintiff he should not use this procedure (Filmat Ltd v Avery [1989] E.G.92) In Eyles v Wells [1991] CA Transcript 376, the Court of Appeal following Greater London Council v Jenkins, above, held that the Court had no discretion to prevent the procedure being used in cases that fell within the rule O.14, r 7 may assist in considering the appropriate order for costs where the plaintiff was aware of a serious dispute' and in the circumstances of the case it is clear that the Plaintiff being fully aware of the issues surrounding the Defendants' possession not only tried to address the serious dispute in this matter through originating summons, but also produced a survey report without addressing vital issue. This can be considered an abuse of process and the matter is struck off and the Plaintiff is ordered to pay a cost of $750 each (total cost of $1,500), assessed summarily to two defendants within 21 days. Since the action of the Plaintiff is an abuse of process the issue of converting this action in to a writ action in terms of order 28 r 9 will not arise, but even if am wrong on that point this proceeding under Order 113 which is designed only for a limited purpose where the Plaintiff is precluded from claiming damages etc in my opinion should not be converted to a cause or action unless there is a special reason to do so. One such special reason is where the plaintiff is barred from institution of a fresh action due to Limitation Act. I have not been informed of such reason.
    

4. FINAL ORDERS
   

1. The amended Originating summons seeking eviction of the defendants is struck off.
   
2. The Plaintiff is ordered to pay a cost of $1,500 ($750 each) to the two defendants within 21 days.
   

Dated at Suva this 27th day of September, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva