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Khan v Singh [2014] FJHC 179; HBC184.2013 (19 March 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
AT LAUTOKA
WESTERN DIVISION

[CIVIL JURISDICTION]

Civil Action No. HBC 184 of 2013

IN THE MATTER of section 169 of the Land Transfer Act

BETWEEN:

MOHAMMED ARIF KHAN
of 12 Broken Lane, Flatbust 2016, Auckland, Environmental Health Officer.
Plaintiff

AND:

HARJEET SINGH, RANJEET SINGH & USHA
of Balata, Tavua
Defendants

Appearances:
Messrs Samuel K Ram Barrister & Solicitor for the Plaintiff
1st & 2nd named Defendants – in Person
No Appearance for the 3rd named Defendant
Date of Hearing : 12 February 2014
Date of Ruling : 12 February 2014
Date of Reasoning : 19 March 2014

RULING

Introduction

[1] On 4 October 2013 Plaintiff, Mohammed Arif Khan, as last registered proprietor filed a summons pursuant to section 169 of the Land Transfer Act (LTA) seeking vacant possession of premises situated on the land contained in Crown Lease No. 15044, Land known as Part of Yaladro, Lot 2 on Deposited Plan No. SO 4811, in the District of Tavua, in the Republic of Fiji, containing an area of 2500 square meters situate at Yaladro, Tavua being residential property (the property).

[2] The application is supported by an affidavit sworn on 26 September 2013 by the Plaintiff and filed on 4 October 2013 along with exhibits marked "MAK-1-MAK-3".

[3] In opposition, the Defendants jointly sworn an affidavit and filed on 4 December 2013 exhibiting few documents unmarked.

[4] Interestingly, it is worthy of note that the Defendants did not deny any of the averments contained in the supporting affidavit of the Plaintiff.

Background

[5] In July 2003 the plaintiff became the registered proprietor of the property in question by virtue of Crown Lease No. 15044 ("MAK1"). The lease is a protected lease. The defendants are currently occupying the property. They, the plaintiff says, are in occupation without his consent or permission and/or without the consent of the Director of Lands. The plaintiff also says the defendants are causing nuisance to him by occupying the property.

[6] In 2003, according to the defendants, the plaintiff sold his house and land to them in the sum of $73,000.00, they paid rent under the plaintiff's name, later he told them to empty the house taking $5000.00, to which they refused and demanded $10,416.00 being the amount they paid to him (plaintiff).

The Law
[7] Sections 169-172 of the LTA are applicable to this application. These sections provide:

Ejectors

169. (So far as relevant) 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) ...;

(c) ... (Emphasis added)

Particulars to be stated in summons

170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

Order for possession

171. On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in Ejectment.

Dismissal of Summons

172. 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, mortgage or lessor or he may make any order and impose any terms he may think fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

Analysis
[8] Pursuant to s. 169 (a) of the LTA, the last registered proprietor of the land may summons any person in possession of land to appear before a judge in chambers to show cause why he should not deliver up possession to applicant. The Crown Lease No. 15044 ("MAK1") indicates that the plaintiff is the registered proprietor of the property. In addition, the defendants do not deny that the plaintiff is the owner of the property. Undoubtedly, as the last registered proprietor of the property in dispute the plaintiff is entitled to summon the defendants under s. 169 of the LTA appear before a judge in chambers to show cause why he refuses to deliver up possession of the land to the plaintiff.

[9] The summons contains sufficient description of the property. The summons was served on the defendants on 11 October 2013 returnable on 14 November 2013 (17days after service of summons). The plaintiff therefore complied with all the requirement of s.170 of the LTA.

[10] Under s.172 the Court would dismiss the summons filed by the plaintiff if the defendants proved to the satisfaction of the judge a right to the possession of the land.

[11] All that the defendants indicate in their affidavit in opposition that they are willing to vacate the property, but the plaintiff must return the money they paid to him, being $10,416.00. It should be noted that the defendants do not deny any of the averments in the supporting affidavit of the plaintiff.

[12] Through his Solicitors the plaintiff in August 2013 served notice on the defendants to vacate the property ("MAK2").

[13] The plaintiff in his affidavit in support avers that the defendants have trespassed on his land and continued to do so blatantly and forcefully in spite of his warnings and demands (vide para 13 of the plaintiff's affidavit in support). To my astonishment, this averment was not denied by the defendants in their affidavit in opposition.

[14] In these proceedings the defendant should show cause why they refuse to deliver possession of the property to the plaintiff. In doing so, the defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced (vide Morris Hedstrom Limited v Liaquat Ali (Action No. 153/87 at p 2).

[15] In their affidavit in opposition the defendants state that in 2003 the plaintiff called them and sold the land and the house to them for the price money of $73,000.00. This appears to be a mere statement. This has not been supported by any document. It is also not clear whether there was a sale and purchase agreement between the plaintiff and the defendants and whether they obtained consent of the Director of lands to proceed with the dealing. The property is Crown land. So any dealing affecting the land must be done with written consent of the Director of lands pursuant to Section 13 of the Crown Lands Act (CLA). Section 13 of the SLA prohibits any dealing in land which is comprised in a State Lease, without the Director of Lands' consent. The defendants had not shown that such consent was had and obtained before the alleged dealing in the property with the plaintiff. Without such consent any dealing in land effected shall be null and void (vide S.13, CLA).

[16] It is the duty of the defendants to show that they have right to possession of the property or an arguable case. The defendants merely say that the plaintiff sold the property to them without any supporting document and demand the sum of $10,416.00 if they are to vacate the property. If the defendants have any claim by way of damage, they have to initiate separate proceedings against the plaintiff to recover such damage.

[17] The plaintiff could initiate proceedings to ejectment under S.169 of the LTA without Director of Lands' consent because Director of Lands' consent is not necessary to initiate proceedings for ejectment under Land Transfer Act section 169 of a mere occupier without lease as the lease is not a dealing with land, and the occupier had no title [vide Prasad v Chand [2001] 1 FLR 164, per Justice Gates (as then he was)].

[18] In the present case too, the defendants are occupying the property without lease, they did not say they have permission or consent of the owner, the plaintiff to occupy and they have no title. In the circumstance, the defendants have failed to show their right to occupy the property or an arguable case. The result of which is that they have to deliver up the property to the plaintiff forthwith.

[19] These are my reasons for granting orders in terms of the summons filed on 4 October 2013

Orders

1. I grant order that the defendants do deliver up possession of the property on Crown Lease No. 15044 to the plaintiff within 28 days.
   
2. The defendants must pay summarily assessed of $450.00 to the plaintiff.
   

M H Mohamed Ajmeer
Acting Master of the High Court

At Lautoka

19/03/14