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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 360 of 2013
BETWEEN:
NAUSORI TOWN COUNCIL
Plaintiff/Respondent
AND:
SNEH LATA
Defendant/ Appellant
COUNSEL : Ms. N. Raikaci for the Plaintiff/Respondent
Mr. K. Singh for the Appellant/Defendant
Date of Judgment : 14th May, 2015
JUDGMENT
[1] This is an appeal filed against the decision delivered by the Master on 20.1.2014. The said order has been sealed on 17.7.14. I find the appellant has filed the Notice and grounds of Appeal on 27.6.2014 with a summons of Stay of Proceedings and Execution Pending Appeal. When the case was mentioned before me the respondent gave an undertaking that they will not get the Master's Order enforced until the determination of this hearing. Accordingly both parties informed court that there was no necessity to hear the Summons for Stay Pending Appeal, thus the hearing of the said summons was disposed of and the appeal was fixed for hearing.
[2] Both counsel have filed their written submissions also made oral submissions. The appellant sought for the following orders: -
" For an order that the Judgment delivered by the learned Master of the High Court, Mr. Thushara Rajasinghe in Court on the 20th day of June 2014 granting the Respondent Vacant Possession under section 169 of the Land Sales Act Cap 131 as per summons dated 19 December 2013 and cost in favour of the Respondent in the sum of $750.00, be wholly set aside and for an order that the Respondents summons dated 19 December 2013 be struck off, Cost against the Respondent for this application and for such other Orders as this Honourable Court deems just."
The Notice of Appeal consists of six grounds of Appeal.
The said Grounds of Appeal are as follows:-
Facts
[3] The Appellant is a market vendor at the Nausori Market. The Respondent is the Nausori Town Council under whose purview the market comes.
[4] The Appellant is alleged to be occupying six stalls at the market illegally without any authorisation. The respondent had given a quit notice and as the Appellant failed to vacate has instituted action against the appellant under Section 169 of the Land Transfer Act.
[5] Being aggrieved by the learned Master's Order of eviction the Appellant has tendered this appeal.
Appellant's Affidavit
[6] The Appellant deposes that she has been a market vendor for over 20 years. Some 4 years ago one Inoke Dreketirua had held six stalls at the market. Upon his departure she had been using the six stalls. The stall fees have been paid by the Appellant.
[7] It is pertinent to note that the submitted stall fee receipts are not in the name of the Appellant but bears the name of Inoke Dreketirua. In November 2013 the Respondent had been served with the quit notice and subsequently the learned Master's order.
Respondent's Affidavit
[8] Among other things the Respondent deposes that the six stalls in question have been given to Inoke Dreketirua. The appellant had been using the stalls without the Respondent's permission and in violation of by laws. The occupation was unlawful.
[9] The Appellant despite being notified to vacate had refused to vacate, the stalls. The Appellant has been given sufficient time to vacate as the action had been filed in December on a quit notice issued in November.
[10] The Appellant is a trespasser in the premises since there are many deserving applicants, a trespasser cannot be given six stalls. The affidavit the Appellant filed before the Master was defective.
[11] Now I will proceed to deal with the grounds of appeal.
First Ground of Appeal
[12] Appellant submits that he has not been given one calendar month's notice to quit.
[13] The Respondent submits that this was never raised before the Master and it has been taken up in appeal for the first time.
[14] The Respondent submitted that this should not be allowed in view of Surji –v- Native Land Trust Board [1997] FJHC 75; 43 FLR 138 (19 June 1997):-
" There is a final matter, raised for the first time on Appeal: it is the question of the Resident Magistrate's jurisdiction. ... So far as I can determine the Magistrate's Court Act (Cap 14 as amended by Decree 35/88) does not directly answer the question but one general principle of practice becomes immediately apparent ad can be first be dealt with. It is this: alleged want of jurisdiction should always be raised at the commencement of the proceedings and while a total want of jurisdiction cannot be cured by consent of the parties (Jones –v- Owen (1849) 18 LJQB8) a party who so conduct himself as to waive his rights cannot later rely on want of jurisdiction on appeal (see Windsor –v- Dunford [1848] EngR 625; (1848) 12 QB 603 and Pringle –v- Hale [1925] 1 573. In the present case want of jurisdiction was not raised in the Magistrate's court at all and I have some doubts as to whether it could properly be raised on appeal."
[15] Even though this case was on a different issue the principle laid down pertaining to taking objection for want of jurisdiction becomes relevant.
[16] As submitted the Appellant was not a tenant, he was a trespasser. When the court questioned the Appellants Counsel he conceded that a person occupying a land without proper authority is a trespasser.
[17] The Respondent also submitted that if the person sought to be evicted is a trespasser the need for a quit notice does not arise. This has been held in Prasad –v- Chand [2001] FJHC 289; [2001] 1 FLR 164. Where Gates J as he was then, held: -
"An Affidavit in Support in HCRO.113 proceedings (as in this instant case) need not show evidence of a prior notice to quit if there is no right to occupy the land and the defendant is not a former tenant. A notice to quit need not to be served or proved to found jurisdiction."
The court went on to say:-
"The present case however does not concern a tenancy. On the defendant's evidence it is claimed there was a gift of part of the plaintiff's state lease or at the least an invitation to occupy. Order 113 procedure is appropriate for ejectment proceedings where the land "is occupied solely by the person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent..." The affidavit in support in such cases does not have to provide evidence of a prior Notice to Quit. After all, if not right to occupy the land is shown to the judge and the defendant is not a former tenant, it is doubtful whether a notice to quit need to be served or proved in order to found jurisdiction [see Order 113 r. 3 and section 169 (c) Land Transfer Act]..."
This court too agrees with the said determination.
[18] It is also pertinent to note that when want for jurisdiction has not been taken before the Master the Appellant's contention that the Master has failed to consider a ground that had never being argued before him, is untenable. Accordingly Ground No. 1 fails.
Second Grounds of Appeal
That the learned Master erred in law when he held that a market stall falls within the meaning of land under section 2 of the Land Sales Act Cap 131.
[19] The Appellant contented that the stall does not fall within the ambit of the definition of "Land" in the Land Transfer Act. Learned Master quoting the section in the Land Transfer Act states as follows:-
"In view of the interpretation given in Section 2 stalls fixed on either permanently or temporarily on the land or in the building thereon certainly fall within the meaning of "land". Wherefore I disregard and refuse the contention of the learned counsel of the defendant that the defendant is not occupying the land".
[20] It is quite clear that the interpretation given to the land covers the present scenario. Further when questioned by court Counsel for the Appellant conceded that the stalls are in one building and that stall means certain defined area in which comprises a table. The counsel for the Appellant conceded that the stall in the particular building is not a table but the table is in the stall. I am satisfied that the learned Master has quite correctly interpreted section 2 of the Land Transfer Act and come to a conclusion, thus the Appellant fails in ground 2 of his appeal.
3, 4, 5 Grounds of Appeal
[21] I find numbers 3, 4, 5 of the grounds of appeal are all based on the defendant's affidavit filed before the Master.
[22] It is pertinent to note that when the application under the Land Transfer Act was made the Appellant had sought to file an affidavit in opposition. It was incumbent on the Appellant to satisfy court that he had a right to possession of the land. Parties were not at variance that this is done by affidavit evidence. However, the Appellant in this instance has failed to file an affidavit. Instead the Appellant had filed a statement of defence. As submitted when the case was taken up for inquiry there was no evidence before court to show that the appellant had a right to posses the land. As submitted the purported affidavit in opposition filed by the Appellant does not have a jurat or a deponent. Under the guise of an affidavit in opposition what has been filed is a mere statement.
[23] The learned Master has quite correctly held that the purported affidavit in opposition is in non-compliance with Order 41 of the High Court Rules.
[24] The appellant submitted that the learned Master should have allowed an amended affidavit to be filed or to allow the Appellant to use a defective affidavit. Counsel then cited the decisions in, In re Vusena Forest Corporation Ltd [1999] HBF 89/98s and Chandrika Prasad –v- Republic of Fiji & Attorney General [2001] HBC 217/00L; 17.1.01 in his support.
[25] I have considered the two judgments and find the circumstances and facts in the present case are different to the cited decisions.
[26] The Respondent submits that in any event Appellant was not entitled to take the cover of Order 41 Rule 4 as the said rule will apply only in the cases where a proper affidavit is filed but has some irregularities on its form.
[27] The Respondent further submits that it had taken an objection to the affidavit before the Master, but despite the Appellant's counsel who conducted the case before the Master being put on notice he never made any attempt to rectify or to file an amended affidavit.
[28] For Order 41 Rule 4 to apply the Appellant should have sought the leave of the court to file or use a defective affidavit. In my view in the absence of any such application the court is not inclined to act under Order 41 Rule 4. The applicant has failed to make an application to the Master to obtain leave. In the absence of a Deponent and a Jurat, in my view a mere statement cannot be converted to an affidavit.
[29] The Appellant submits that learned Master has erred in law when he failed to mention which rule of order 41 of the High Court Rules were in non compliance by the applicant. Order 41 of the High Court Rules deals with affidavits. As submitted by the Respondent if an affidavit is in non compliance with the said orders it is a defective affidavit. It is the primary duty of the counsel to submit to court a valid affidavit or to make an application to obtain leave, to use a defective affidavit. The court is not there to spoon feed counsel as to the defects in their affidavits. Further, as I have stated the document filed in the absence of a deponent or a Jurat cannot be considered an affidavit at all.
[30] For the above stated reasons the Appellant's grounds of appeal 3, 4, 5 fails.
Ground 6 of Appeal
"That the learned Judge erred in fact when it considered that the Appellant operated stall 31 when stall 31 is owned by one Mohammed Abdul and not the Appellant."
[31] The Appellant submits that they are not in possession of stall 31. Its submitted that its occupied by one Mohammed Abdul. Therefore the Appellant submits his eviction from stall 31 is erroneous.
[32] The Respondent submits that this issue was never taken by the Appellant before the Master and had been raised for the first time in appeal citing Surji –v- Native Land Trust Board (supra). The Respondent submits that this ground should be dismissed.
[33] The court observes that the Appellant has never raised this issue before the learned Master. The learned Master has given his judgment on what is submitted to court. As this issue was not raised before the learned Master and the way ground of appeal number 6 is drafted the said ground has to fail. Further this court has already agreed with the principles in Surji's case (supra) in the judgment. Accordingly ground 6 fails.
[34] For the above stated reasons I find the Appellant's grounds of appeal lacks merit and have to be dismissed.
[35] The Respondent submitted that the Appellant by submitting an unmeritorious appeal has prevented the Respondent from enjoying the fruits of the judgment and has sought for cost on a higher scale. This court has considered all the material before the court.
[36] Accordingly, I make the following orders:
- The appeal stands dismissed.
- The appellant to pay summarily assessed cost of $1,800 to the Respondent.
.............................
Mayadunne Corea
JUDGE
14.5.2015
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