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Singh v Singh [2015] FJHC 600; HBC53.2015 (14 August 2015)

IN THE HIGH COURT OF FIJI AT LAUTOKA
WESTERN DIVISION
CIVIL JURISDICTION

Civil Appeal HBC No. 53 of 2015

BETWEEN:

GYAN KAUR SINGH of Kulukulu, Sigatoka in the Republic of Fiji Islands, Domestic Duties.
PLAINTIFF

AND:

SITAL SINGH of Kulukulu, Sigatoka in the Republic of Fiji Islands, Taxi Driver.
1ST DEFENDANT

AND:

IRINIETA RAWAQA and SERU both of Kulukulu,
Sigatoka in the Republic of Fiji Islands, Hotel Worker
2ND DEFENDANTS

Counsel : Mr J Singh for Plaintiff
Defendants in Person
Date of Hearing : 14 August 2015
Date of Judgment : 14 August 2015

JUDGMENT

Introduction

[1] This is an application under section 169 of the Land Transfer Act ('the LTA').

[2] By originating summons dated16 March 2014 supported by an affidavit sworn by Gyan Kaur Singh, the plaintiff seeks an order under s. 169 of the LTA for the defendants to give immediate vacant possession of the land together with premises thereon located on the land fully described and known as Crown Lease No. 19077 being Lot 6 on Plan No. SO 5568 situated at Kulukulu, Sigatoka ('the property').

[3] Second defendants did file any affidavit showing their rights to occupy the property. At hearing, they informed the court that they had already left the property and ready to hand over the keys to the plaintiff. The plaintiff agreed to accept the key in court. Accordingly, the second defendants handed over the keys to the plaintiff and the plaintiff accepted the same. At the same time, they also confirmed that they have claim over the property hence consented to judgment be given to the plaintiff. On that basis the court entered judgment by consent as against the second defendants.

[4] As the second defendants had already left the property, the hearing proceeded only against the 1st defendant.

[5] The 1stdefendant on 30 July 2015 filed an affidavit in opposition sworn by him on same day. That affidavit annexes five documents marked 'SS1 to SS5'

[6] In reply to the 1st defendant's affidavit in opposition, the plaintiff filed affidavit in reply.

[7] At hearing both parties made oral submissions. The 1st defendant submitted that everything that he wanted to say is in his affidavit. Neither party sought leave to file written submissions.

Background

[8] Brief background of the case is as follows: The property is a Crown Land covered by Crown Lease No. 19077. The plaintiff's husband, Gurmel Singh became owner of the property in 1979. Her husband passed away in 2000. By transmission by death she became the owner of the property. Currently she is the last registered proprietor of the property. The first defendant is her husband's younger brother. He is residing in the dwelling built by her husband. The 1st defendant came for her husband's final rituals when requested a space to reside on the property saying that he was facing some difficulties residing in Lautoka. As a result, the plaintiff agreed to let the first defendant reside at the property for a couple of years. The 1st defendant agreed to look for a property and move out of the subject property. The plaintiff was ordered to demolish the two bedroom extension as it encroached into another lease. The plaintiff asked the 1st defendant to look for another house. The 1st defendant pleaded for further time as his youngest daughter was still in school. In the meantime, the plaintiff vacated the property in 2013 and gave her side of the property for the 1st defendant to reside. She went to live with her son who also resides in Sigatoka. Sometime after that the plaintiff verbally informed the 1st defendant to vacate the property. The 1st defendant refused to vacate. Then the plaintiff served notice to vacate dated 28 July 2014 on the 1st defendant. He still refused to vacate. So, the plaintiff filed application under s. 169 for possession of the property.

The Law

[9] The applicable law in these proceedings is contained in sections 169 to 172 of the LTA. The relevant sections provide, so far as material, as follows:

Ejectors

169. (so far as material) 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.

Discussion

[10] This is an application under s. 169 of the LTA for immediate possession of property. Under that the last registered proprietor of the land may summon any person in possession of land to appear before a judge in chambers to show cause why he should not give possession to the applicant.

[11] The plaintiff is the last registered proprietor of the property as evidenced by Crown Lease No. 19077 as registered on 22 March 2013. It is not in dispute that the plaintiff is the last registered proprietor of the property. Hence the plaintiff is entitled to initiate proceedings under s.169 (a) of the LTA.

Director's consent

[12] One important thing I need to consider is that the lease is a protected lease under the Crown (Now State) Land Act. Section 13 of the State Land Act ('SLA') will apply to a protected lease. Section 13 so far as relevant provides as follows:
"... nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law..." (Emphasis added).

[13] So, a protected lease cannot be dealt with by the court without the written consent of the Director of Lands. In Prasad v Chand [2001] FJHC 289; [2001] 1 FLR 164 (30 April 2001), the words 'dealing with land' was interpreted not to include proceedings for ejectment under s. 169 of a mere occupier without lease, and occupier has no title.

[14] His Lordship Justice Gates (as then he was) in Prasad's case (supra) said that:

"Director of Lands' consent is not necessary to institute 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 occupier has no title." (Emphasis added).

[15] The 1st defendant did not say he has a lease or title to the property to occupy the same. Hence he falls into the category of a mere occupier without lease. As the lease is not dealing with land, the plaintiff may initiate proceedings under s.169 without the consent of the Director of Lands as required by section 13 of State Land Act.

Right to possession

[16] I will now turn to the issue of right to possession. There is no dispute that the plaintiff is the last registered proprietor of the subject property. As such, the burden shifts to the defendant. He must show that he has a right to possession of the property. I will, pursuant to section 172 of the LTA, dismiss the application with cost to the plaintiff if the 1st defendant satisfied me that he has a right to possess the property.

Defendant's case

[17] According to the 1st defendant, in 2002 the plaintiff another brother came to him in Lautoka with the request for his family to reside in Kulukulu as he was youngest in the family. The insisted that he look after the property and reassured him that he can reside there with his family for life time. He also state that, the plaintiff wanted to renovate the house as it was an old house, he agreed to pay $100.00 every month to assist in the renovation.

Plaintiff's case

[18] The plaintiff states that the 1st defendant has been staying in the subject property for the past 13 years without paying for anything; she has been paying the annual rental, his occupation was extended due to the undertaking that he was in process of acquiring a lease and that his daughters were schooling and it is very hard for him to re-locate.

Determination

[19] As stated above, in s.169 eviction proceedings once the proprietorship is admitted or establish, the defendant must show cause why he is refusing to give possession of the property to the applicant/plaintiff. In that effort the defendant must satisfactorily prove that he has right to possession of the property. In this case the fact that the plaintiff is the registered proprietor of the property in not in dispute. Therefore the 1st defendant must satisfy me by proving that he has a right to possession of the subject property.

[20] The only cause the 1st defendant has to show for refusing to give immediate vacant possession to the plaintiff is that his occupation has been with the permission and promise given by the plaintiff to reside in the subject property for lifetime.

[21] I would say the permission given to the defendant to occupy the property has been withdrawn by the plaintiff. In 2013 the plaintiff verbally requested to vacate and give the possession of the property. The defendant refused to vacate. Thereafter, on 18 September 2014 the plaintiff served eviction notice on the defendant to vacate the property within 30 days from the date of receipt the notice. The defendant still refused to vacate. As a result, the plaintiff has taken the current proceedings. The eviction notice will also operate as service of revocation of the permission or invitation to occupy.

[22] In the case of Prasad v Chand [2001] 1 FLR 164 (30 April 2001), the defendant claimed that there should be revocation of an invitation to occupy before giving notice to quit. However, Justice Gates (as he then was) found there need not be a two stage process. He observed that:

"Where the defendant is an invitee to occupy land, it is not necessary that there should be two stages of eviction-service of revocation and then notice to quit. It would be sufficient if both were given together" (Emphasis added).

[22] What the defendant is required to prove in these proceedings is that he has a right to possession. In that he ought to show some tangible evidence establishing a right or supporting an arguable case. In Morris Hedstrom Limited v. Liaquat Ali (Action No.153/87SC at p2) the Supreme Court (then) observed that:

'... What is required is to show some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced.'

[23] There is no tangible evidence adduced by the defendant to establish his right to possession. There is no other evidence except that he is occupying the property upon the invitation extended by the plaintiff. But that invitation is now revoked. The defendant produced some documents to show that he is currently occupying the property. Those documents are only relevant to show that he is the occupant of the property. They do not necessarily prove that he has a right to occupy.

[24] For the above reasons, I am not satisfied that the 1st defendant has proved that he has a right to possession of the property. I would therefore give judgment in favour of the plaintiff. I accordingly order the 1st defendant to forthwith give up possession of the property to the plaintiff. I also order the 1st defendant to pay $350.00 costs, which is summarily assessed to the plaintiff.

Final Order

1. The 1st defendant will forthwith deliver possession of the property to the plaintiff.
   
2. The 1st defendant will also pay summarily assessed costs of $350.00 to the plaintiff.
   
3. Orders accordingly.
   

.................................................
M H Mohamed Ajmeer
JUDGE
At Lautoka
14 August 2015