IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CASE NUMBER: HBC 24 of 2010

BETWEEN:

MOHAMMED HABID
Plaintiff

AND:

JANKI PRASAD
Defendant

Appearances: Mr. P. Lomaloma for the plaintiff.
Mr. S. Prasad for the defendant.
Date/Place of Judgment: 17th January, 2012 at Labasa.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:
s.160 – Vacant Possession – Land Transfer Act- Need to proof conclusive ownership of property in respect of which the orders for eviction are sought. 

LEGISLATION:
The Interpretation Act, CAP.7.
The Land Transfer Act, CAP 131.

The Cause

1.	This is a defended application for vacant possession under s.169 of the Land Transfer Act. The land is situated at Natabucola No. 1, NLTB Ref 4/9/7029, in the tikina of Wailevu, in the province of Macuata containing an area of approximately 11.3153 hectares.

Affidavit in Support

2.	The plaintiff filed an affidavit in support of the application. He deposed that he is the registered proprietor of the land described above and attached a copy of the lease evidencing his ownership. He said that the defendant is a fisherman and is trespassing on part of his land. On 1st December, 2009 he went to attend the prize giving ceremony at Bucalevu Primary School. When he returned, he found that the defendant had unloaded building materials and erected a timber and iron building on part of his land. The defendant told him that the landowning mataqali had given him consent to build his house. He reported the matter to the Labasa Police station and they told him to liaise with the Native Lands Trust Board ("NLTB"). He therefore, on the same day, reported the matter to the NLTB office. They checked and confirmed that the defendant was occupying his land. The NLTB then, on 15th December 2009, issued to the defendant a notice to vacate.

3.	The plaintiff further deposed that on 4th May, 2010, the NLTB wrote to him and confirmed that the defendant was a trespasser on his lease and that it was his duty to evict the defendant. The letter by NLTB to this effect was also attached. On 18th May, 2010, his solicitors wrote a notice to the defendant to vacate the property but to no avail.

The Affidavit in Opposition

4.	The defendant filed an affidavit in reply and stated the action is unsustainable as the plaintiff does not have a lease but only an instrument of Tenancy No. 9012. He denied that he is trespassing on the plaintiff's lease. He stated that the officers of the NLTB made their inspection as stated by the plaintiff. They then:-

(a)	Gave him notice with a sketch plan stating that he was in illegal occupation of N.L. Natabucola (pt) of NLTB Ref. 4/9/7599.

(b)	Told him that his house was outlined in red in the plan and that his house was well outside the plaintiff's land. At that time, he says, he was not advised that the parcel of land that he occupied, belonged to the plaintiff.

5.	He further deposed that he has no knowledge of what transpired between the NLTB and the plaintiff but stated that he had asked the NLTB to prove that he was trespassing on the plaintiff's land. The Board failed to do this. Instead they gave him a testimonial confirming that he was not occupying the plaintiff's land but that he was sitting on a land known as Natabucola Pt of. A letter dated 8th August, 2010 from NLTB was attached to the evidence.

Affidavits in Reply

6.	The plaintiff deposed 2 affidavits in reply to that of the defendant. In those affidavits he stated that his lease is an agricultural lease and is registered pursuant to s.8 (3) (b) of the Agricultural Landlord and Tenant Act ("ALTA"). After receiving the affidavit in reply of the defendant, his solicitor wrote to the NLTB a letter asking to verify whether the defendant's house sat on the plaintiff's land or not. The NLTB replied and confirmed to his solicitor to disregard the letter that was written to the defendant. It also stated that the NLTB will work with him to evict the defendant as the only FSC leave over the area was for the railway. He further testified that when he bought the lease in 2004, his boundaries were pointed out to him on the eastern side which is the area of dispute; his boundary was the edge of the road running parallel and adjacent to the disused railway line. 

7.	The defendant said in another affidavit that on 1st December 2010 the NLTB wrote a letter to the defendant re-affirming that the plaintiff was in unlawful occupation of the land leased to the plaintiff.

A Further Affidavit of the Defendant

8.	The defendant deposed a further affidavit and stated that the plaintiff does not even know the actual area of his land as he only states that he has an approximate of 11.3153 hectares. This area is subject to survey by a registered surveyor and the plans will be subject to the approval of the surveyor. The survey plans are not approved. Therefore the actual area and the boundaries are not known and pegged. There is collusion evident from the plaintiff's solicitor's letter of 27th September, 2010 with the NLTB. That letter reads "will you join us and evict Janki from NLTB land or will you take no action?" The NLTB did write a letter to him on 1st December, 2010 but the officers of NLTB have not surveyed the land.

9.	The area that he occupies is a separate lot and is available for leasing. The NLTB ought to grant him a residential lease over the portion as the members of the mataqali have recommended this. A copy of the recommendation by the mataqali was attached.

The Submissions

10.	Mr. Lomaloma submitted that his client is the registered proprietor of the land in question. Registered, he said, is defined in the Interpretation Act. It states that registered means "registered under the provisions of any written law for the time being applicable to the registration of such document or title". Mr. Lomaloma said that the lease is registered under the provisions of the Agricultural Landlord and Tenant Act, s. 8(3) (b). He said that s. 8(3) of the ALTA requires that "every instrument of tenancy ….if not registrable under the provisions of the Land Transfer Act shall, together with all dealings relating thereto, be registered as deeds under the provisions of the Registration Act". The registration has given the plaintiff a right to exclusive possession of the land.

11.	Mr. Lomaloma further submitted that pursuant to s.54 of ALTA, the plaintiff is aware of the boundaries of his land as they were pointed out to him by his landlord in 2004. Mr. Lomaloma said that s.54 of the ALTA gives recognition to the fact that it is difficult to have a survey plan of large leases such as agricultural lease. The parliament therefore inserted s.54 for identification of boundaries.

12.	Mr. Lomaloma said that the defendant is within his boundary. This land is used by the plaintiff as access to his cane field. The land is a narrow strip between a drain which marks the northern edge of his property, and the adjoining residential block which belongs to another person. The plaintiff has been using this access since he bought the farm in 2004.

13.	The defendant has not shown any rights to occupy the land. The consent from the mataqali does not identify the landowning unit of the mataqali, which land they have consented to lease and as to who is the proposed lessee. However the land in question is outside the Native Reserve and it can be leased to the people without the consent of native owners. The said letter of consent does not give the defendant the right to immediate possession or any rights over the land.

14.	Mr. Prasad, counsel for the defendant submitted that:-

(a)	The plaintiff's application does not state the law by virtue of which the application is brought and thus it must be dismissed for being defective.

(b)	The plaintiff only holds an instrument of tenancy and not a registered title so an application cannot be brought under s.169 of the Land Transfer Act.

(c)	The plaintiff has only been pointed out his boundary. He does not know his actual area of land. The plaintiff thus cannot claim that the defendant is living on his land. The defendant is sitting on a corner outside the boundary.
(d)	The NLTB's letter to the defendant clarifies that plaintiff is not the owner of the subject land. The position was lately altered after insistence by the plaintiff. The NLTB's evidence thus has to be tested on analysis to intricate issues on proprietorship.

(e)	There is dispute as to boundary in this case and thus not a suitable case for s.169 summary eviction

The Law and Analysis

15.	The plaintiff's application is founded on s. 169(a) of the Land Transfer Act, Cap. 131. S. 169(a) requires the plaintiff to be the last registered proprietor of the land.

16.	The word registered is making reference to registration of land and not the nature of land. If the land is registered either in Registrar of Titles Office or in the Deeds Office, it is still registered land. This land has been registered on 4th March, 2004 and is registered at the Registrar of Deeds office, it is still registered land. The registration is sufficient to meet the definition of registered in the Interpretation Act Cap. 7:-

"Registered" used with reference to a document or the title to any immoveable property means registered under the provision of any written law for the time being applicable to the registration of such document or title".

17.	The second issue to be answered is whether the plaintiff is the owner of the property in question. This has been disputed robustly.

18.	I do not find any clear evidence to the effect that the plaintiff is also the owner of the land on which the defendant is sitting. The defendant is occupying one corner of a land which the plaintiff says falls within his boundaries. He said that the NLTB had pointed out to him the boundary. However, there is nothing concrete to establish the plaintiff's ownership. Even the NLTB has adopted two different positions since the dispute.

19.	On the 14th December 2009, NLTB wrote to the defendant and stated that the defendant is occupying a portion of land to which he has no title or consent from the NLTB. That letter does not state that the plaintiff is the owner of the land. 

20.	On May 4th, 2010, the NLTB wrote to the plaintiff and stated that the defendant had been informed that he has trespassed on the land and that it was the plaintiff's duty to evict the defendant.

21.	On August 8th, 2010, the NLTB wrote and stated that the defendant was not occupying the "land name as NATABUCOLA No. 1 which belongs to MOHAMMED HABID F/N UMAR. JANKI is however sitting on land name known as NATABUCOLA PART OF, which belongs to the Fiji Sugar Corporation. We have confirmed that through our Map Information System".

22.	Subsequently NLTB wrote to the plaintiff's solicitor and asked him to disregard the letter that was written on the 8th August, 2010 and said that the FSC lease over the area is for the railway.

23.	The NLTB, who is the trustee of the land is changing tune when and as it wishes. It has no definite view of who is the owner of the land, the defendant is sitting on. If this cannot be established, then the plaintiff does not establish his locus as the last registered proprietor of the land to qualify to bring an action against the defendant.

24.	I agree with Mr. Prasad that NLTB's position has to be correctly concluded vide evidence tested in Court in absence of any surveyed plan showing proper demarcations. In light of the doubt lingering as to ownership, the prudent action is a writ action.

25.	The onus for the defendant to show cause as to why he should not give up vacant possession does not shift until the plaintiff has established his right to bring an action.

26.	I do not wish to undertake this serious exercise of clearing the aspect of proprietorship in this summary proceeding and as such I intend to strike out the application. This will not prejudice the plaintiff's right to bring another form of action or the same action after a clear survey and plan is obtained.

Costs

27.	The defendant has succeeded in this action only because the ownership of the property on which he is sitting has not been conclusively established by the plaintiff to be his. Once the boundaries are clarified and ascertained, the plaintiff may be successful. As it is, the defendant does not own the land. An order for costs in favour of the defendant is therefore not justified although he is successful in this application.

Final Orders

28.	The application for ejectment under s.169 of the Land Transfer Act, Cap. 131 is dismissed.

29.	Each party shall bear their own costs.

Anjala Wati
Judge
17.01.2012

To:

1.	Mr. P. Lomaloma, counsel for the plaintiff.
2.	Mr. S. Prasad, counsel for the defendant.
3.	File: HBC 24 of 2010.