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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 197 of 2014
IN THE MATTER of Section 169 of the Land Transfer Act, Cap. 131.
BETWEEN:
BABU RAVIN DEO of Vuda, Lautoka.
PLAINTIFF
AND:
FARZAN ALI of Navula Road, Saru, Lautoka
DEFENDANT
The Plaintiff is in Person
(Ms) Adi Qisa Vokanavanua for the Defendant
Date of Hearing: - 11th May 2015
Date of Ruling : - 25th September 2015
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff's Originating Summons dated 02nd December 2014, made Pursuant to Section 169 of the Land Transfer Act, for an Order for Vacant Possession against the Defendant.
(2) The Defendant is summoned to appear before the Court to show cause why he should not give up vacant possession of the Plaintiff's property comprised in Itaukei Lease No:- 30754, being land comprised in Lot 01 on ND 2772, Vuda, Ba, having an area of 12a, 2r.
(3) The application for eviction is supported by an affidavit sworn by the Plaintiff on 02nd December 2014.
(4) The application for eviction is strongly resisted by the Defendant.
(5) The Defendant filed an Affidavit in Opposition opposing the application for eviction followed by an affidavit in reply thereto.
(6) The Plaintiff and the Defendant were heard on the Originating Summons. They made oral submission to Court.
(B) THE LAW
(1) In order to understand the issues that arise in the instant case, I bear in mind the applicable law and the judicial thinking reflected in the following decisions.
(2) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.
Section 169 states;
"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) ...
Section 170 states;
"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."
Section 171 states;
"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.
Section 172 states;
"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.
[Emphasis provided]
(3) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-
The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-
"s.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."
"s.172. If a 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, mortgagee or lessor or he may make any order and impose any terms he may think fit."
It is for the defendant to 'show cause.'
(4) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) as follows and it is pertinent:
"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. 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."
(5) The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Azmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:
"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require."
(C) THE FACTUAL BACKGROUND
(1) What are the facts here? It is necessary to approach the case through its pleadings/affidavits, bearing all those legal principles in my mind.
(2) To give the whole picture of the action, I can do no better than set out hereunder the main averments/assertions of the Pleadings/Affidavits.
(3) The Plaintiff in his Affidavit in Support deposed inter alia;
Para 1 THAT I am the last and the present registered proprietor of all that piece of land contained within Itaukei Lease No. of 30754 more particularly described as Nadoika Lot 1 on ND 2772, Vuda, Ba having an area of 12a 2r 00p. I annex a copy of the said Certificate of Title and mark it as annexture "A".
2 THAT the Defendant is in unlawful occupation of part of the said property and he is now a trespasser as his licence to occupy as a caretaker was terminated some years ago.
3. THAT the Defendant has received several Notices to quit the most recent being the 30th September, 2014 and the Defendant refuses to vacate. A copy of the said notices is annexed herein and marked as annexure "B".
4. THAT the Defendant has also received Notices to quit from the Itaukei Land Trust Board with the most recent being 7th April 2014. A copy of the said Notices is annexed herein and marked as annexure "C".
5. THAT the Defendant has been making payments to Itaukei since 2012 however has not been able to enjoy and reside the said property. A copy of the said official receipts is annexed herein and marked as annexure "D".
6. THAT the Plaintiff needs the said property free of the Defendant's occupation for development and his own use.
7. THAT the Defendant is a nuisance and has no colour of right whatsoever to continue in occupation of the said property.
(4) The Defendant for his part in seeking to show cause against the Summons, filed an Affidavit in Opposition, which is substantially as follows
Para 4 THAT as to paragraph 1of the said Affidavit, I deny the contents therein and puts Plaintiff to strict proof of the same. I have been residing on the said property for more than 17 years since 1999. The said property is owned by my wife's family and to my knowledge it was transferred to my wife's brother MOHAMMED ISHAQ who has migrated to the United States of America. He brought me to occupy the property sometimes in 1998 so I could also look after his sugar cane and vegetable farm and I was advised by my brother in law to apply for Lease under Residential lease on the same property. Since 1999, I have been cultivating the sugar cane farm on the said property together with my family and have been paying the prescribed rental fees. I have also invested so much in the said property and has called it home since then.
5. THAT as to paragraph 2 of the said Affidavit, I deny and dispute the contents therein. I further say that when the Lease to the said property expired, I applied for 1 acre Lease which to include where my house is located from the whole 12 acre Lease that belonged to my brother in law. My application was lodged with the i-Taukei Land Trust Board's (hereinafter referred to as TLTB) office in sometimes in 2010. The Plaintiff applied for Agriculture Lease in 2012. Attached herewith is a copy of Receipt of my Lease Application fees of $56.25 dated 30th August 2010 marked "FA1".
6. THAT after lodging my application for Lease as stated above, TLTB's office failed to proceed ahead with my Lease application. That everytime I visit their office, their officers would advise me to wait as application still under process.
7. THAT I lodged under Application for Lease in 2012 for the same area as per my 2010 Lease Application and had to pay other requisite fees to the TLTB office. Attached herewith marked "FA2" is a copy of the said Receipt dated 4th December 2012. I was also told to pay $1,150.00 to the TLTB's office then they can process my application. I paid the money attached marked "FA3" is a copy of receipt.
8. THAT on 22nd May 2012, I received a New Lease offer letter from Mr Waisake Naiduki of the TLTB's office. Attached marked "FA4" is a copy of the said letter. I then proceeded to pay the requisite fees of $2,077.01. Attached marked "FA5" is a copy of the Receipt confirming payment.
9. THAT I was also offered my Lease Agreement which I has signed and agreed to by the TLTB's office. Attached marked "FA6" is a copy of the said Agreement.
10. THAT I was surprised and shocked to be served with the Notice to Quit by the Plaintiff as all I am aware that the area I am occupying is registered under my name.
11. THAT I have invested so much money and effort on to the said property. My wife and I have called the said property our home for more than 17 years. Our children have grown up on the said property and it holds so many values to us. If we are vacated from the said property we would have no other place to go.
12. THAT I am a sugar cane farmer which is my main source of income and have farmed the said property for a long time. Besides sugar cane, I also bred animals and plant vegetables such as cabbage, bargi and other crops for our home consumption and for market sales. Currently I have 8 cows, 9 goats on the farm and sometimes I sell the cow-milk to supplement our family income.
13. THAT I believe the lease issued to the Plaintiff is an error by the TLTB's Office which they have to rectify as my family and I have been greatly prejudiced due to their mistake.
14. THAT I have every right to possession and an equitable interest to the said property and therefore, we respectfully submit that Plaintiff's application be dismissed with costs.
(5) The Plaintiff filed an Affidavit in Rebuttal deposing inter alia;
Para 2 THAT as for paragraph 4 of the Affidavit in Opposition (AIO); Mohammed Ishaq's cousin brought the Defendant's family in 1998. At that time; there was a sugar cane farm however it has now overgrown. The rest of the contents are denied.
3. THAT I deny paragraph 5 of the AIO and state that although the Respondent had applied for lease; it was a residential lease for residential purposes covering only an area of 0.4000 hectares and as for the 12 acre lease; the Respondent has admitted that such lease has expired in the same paragraph. Hence; the Respondents have no right to occupy any land besides the 0.4000 hectares they have secured residential lease over.
4. THAT I deny paragraphs 6, 7 and 8 of the AIO; and wish to state that any matter regarding lease application is concerning only the Respondent and the ITLTB. As far as we are concerned; there is no agricultural lease in place granted to the Respondent hence the Respondent and his family are illegally occupying land which has been leased to us.
5. THAT as for paragraph 9; I wish to state that the lease agreement is only with regards to a residential lease for the allocated area of land. The Respondents however are claiming and occupying more than what is rightfully leased to them.
6. THAT as far as paragraph 10 is concerned; I admit service of Notice to Quit however the area in which the Respondents are occupying is more than what had been rightfully allocated to them as per the Residential Lease.
7. THAT I deny paragraph 11 of the AIO and wish to state that there is no point in investing on the property when the land is not theirs. All in all despite the sweet sentiments the Respondents are illegally occupying the property.
8. THAT I deny paragraph 12 of the AIO and wish to state that Respondents have a residential lease which is for residential purposes. Sugarcane farming would usually require an agricultural lease. The Respondent's current property and farming practices are encroaching on our property.
9. THAT I deny paragraph 13 of the AIO and wish to state that there is no error committed by TLTB. The residential lease of the Respondent clearly outlines that they are only entitled to 0.4000 hectares. We on the other hand are entitled to 12.2 acres as per our Agricultural lease. Most part of the land that we have been leased is rocky. It is the part of land which we wish to farm that the Respondent is encroaching. Furthermore; I wish to state that the only person being prejudiced in this instance is me because I have the Agricultural lease to farm the land however I cannot do so.
10. THAT I deny paragraph 14 of the AIO and wish to state that the Respondent does not have any right on the said land as he is not the registered holder of an Agricultural lease like I am. Rather he is a holder of a residential lease and must abide only by the terms of such lease and occupy only the specified area under the same lease.
(D) ANALYSIS
(1) This is an application brought under Section 169 of the Land Transfer Act, [Cap 131].
Under Section 169, certain persons may summon a person in possession of land before a judge in chambers to show cause why that person should not be ordered to surrender possession of the land to the Claimant.
For the sake of completeness, Section 169 of the Land Transfer Act, is reproduced below;
169. 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) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;
(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.
I ask myself, under which limb of Section 169 is the application being made?
Reference is made to paragraph (1) of the affidavit in support of the Originating Summons.
Para 1 THAT I am the last and the present registered proprietor of all that piece of land contained within Itaukei Lease No. of 30754 more particularly described as Nadoika Lot 1 on ND 2772, Vuda, Ba having an area of 12a 2r 00p. I annex a copy of the said Certificate of Title and mark it as annexture "A".
Section 169 (a) of the Land Transfer Act, Cap 131, requires the Plaintiff to be the last registered proprietor of the land.
The term "proprietor" is defined in the Land Transfer Act as "the registered proprietor of land, or of any estate or interest therein".
The term "registered" is defined in the Interpretation Act, Cap 7, as "registered used with reference to a document or the title to any immovable property means registered under the provisions of any written law for the time being applicable to the registration of such document or title"
(2) According to the iTaukei Lease No:- 30754, the Plaintiff is the lessee of the subject land. There is no dispute between the parties as to the "locus standi" of the Plaintiff. The iTaukei Lease is registered with the Registrar of Title. A copy of the iTaukei Lease is annexed to the Affidavit in Support of the Originating Summons. It seems to me perfectly plain that the Plaintiff holds a registered lease and could be characterized as the last registered proprietor.
On the question of whether a lessee can bring an application under Section 169 of the Land Transfer Act, if any authority is required, I need only refer to the sentiments expressed by Master Robinson in "Michael Nair v Sangeeta Devi", Civil Action No: 2/12, FJHC, decided on 06.02.2013. The learned Master held;
"The first question then is under which ambit of section 169 is the application being made? The application could not be made under the second or third limb of the section since the applicant is the lessee and not the lessor as is required under these provisions. But is the applicant a registered proprietor? A proprietor under the Land Transfer Act means the registered proprietor of any land, or of an estate or interest therein". The registration of the lease under a statutory authority, the iTLTB Act Cap 134, creates a legal interest on the land making the applicant the registered proprietor of the land for the purposes of the Land Transfer Act. He can therefore make an application under section 169 of the Land Transfer Act".
The same rule was again applied by the learned Master in "Nasarawaqa Co- operative Limited v Hari Chand", Civil Action No: HBC 18 of 2013, decided on 25.04.2014. The learned Master held;
"It is clear that the iTLTB as the Plaintiff's lessor can take an action under section 169 to eject the Plaintiff. This is provided for under paragraphs [b] & [c]. For the lessor to be able to eject the tenant or the lessee it must have a registered lease. It is not in dispute that the Plaintiff holds a registered lease, the lease is an "Instrument of Tenancy" issued by the iTLTB under the Agricultural Landlord and Tenancy Act. It is for all intents and purposes a native lease and was registered on the 29 November 2012 and registered in book 2012 folio 11824. It is registered under the register of deeds. There is nothing in section 169 that prevents a lessor ejecting a lessee from the land as long as the lease is registered. How will the lessee then eject a trespasser if the lessor in the same lease can use section 169? The lessee under section 169 can eject a trespasser simply because the lessee is the last registered proprietor. The Plaintiff does not have to hold a title in fee simple to become a proprietor as long as he/she is the last registered proprietor. A proprietor is defined in the Land Transfer Act as "proprietor" means the registered proprietor of land, or of any estate or interest therein". The Plaintiff has an interest by virtue of the instrument of tenancy and therefore fits the above definition and can bring the action under section 169."
A somewhat similar situation as this was considered by His Lordship Justice K.A. Stuart in Housing Authority v Muniappa1977, FJSC. His Lordship held that the Plaintiff Housing Authority holds a registered lease therefore it could be characterized as the last registered proprietor.
In Habib v Prasad [2012] FJHC 22, Hon. Madam Justice AngalaWati said;
"The word registered is making reference to registration of land and not the nature of land. If the land is registered either in the 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".
Applying the aforesaid principles to the instant case, I am driven to the conclusion that the Plaintiff is the last registered proprietor of the land comprised in iTaukei Lease No:- 30754.
(3) Pursuant to Section 170 of the Land Transfer Act;
(1) the Summons shall contain a "description of the Land"
AND
(2) shall require the person summoned to appear in the court on a day not earlier than "sixteen days" after the service of Summons.
The interval of not less than 16 days is allowed to give reasonable time for deliberations and to prevent undue haste or surprise.
I ask myself, are these requirements sufficiently complied with by the Plaintiff?
The Originating Summons filed by the Plaintiff does contain a description of the subject land. The subject land is sufficiently described. For the sake of completeness, the Originating Summons is reproduced below.
ORIGINATING SUMMONS
(Section 169 Application)
LET ALL PARTIES concerned attend before the Master in Chambers at Lautoka High Court on Monday the 19th day of January, 2015 at 8.30 o'clock in the forenoon on the hearing of an Application by the above-named Plaintiff for the following orders"
DATED this 2nd day of December, 2014
The Plaintiff intends to rely on the affidavit of Babu Ravin Deo filed herewith in support of its application.
This application is made pursuant to Section 169 of the Land Transfer Act under the inherent Jurisdiction of this Honorable Court.
(Emphasis Added)
In light of the above, I have no doubt personally and I am clearly of opinion that the first mandatory requirement of Section 170 of the Land Transfer Act has been complied with.
(4) Now comes a most relevant and, as I think, crucial second mandatory requirement of Section 170 of the Land Transfer Act.
At this point, I cannot resist in saying that no argument was addressed to me by the Counsel for the Defendant on the second threshold criteria in Section 170 of the Land Transfer Act. Moreover, the Defendant did not make any reference to the second threshold criteria in his Affidavit in Opposition.
Leave all that aside, I desire to emphasize that the court is bound to look into the "pre requisites" before the burden shifts to the Defendant.
The Originating Summons was returnable on 19th January 2015. According to the Affidavit of Service filed by the Plaintiff, the Originating Summons was served on the Defendant on 09th January 2015.
It is, of course, undeniable that the Defendant had been summoned to appear in the Court on a day earlier than "sixteen days" after the Service of Summons.
In the result, I am constrained to hold that the Plaintiff has not satisfied the second threshold criteria in Section 170 of the Land Transfer Act.
In the context of the present case, I am inclined to lean in favour of the judicial thinking reflected in the dictum of Hon. Judge Madraiwiwi in "Atunaisa Tavuto v Sumeshwar Singh", Action No:- HBC 0332 of 1997L. Hon. Judge Madraiwiwi says;
"This application can be disposed of without the need to consider the parties' substantive arguments. The summons is defective in not properly describing the subject property. Although the Housing Authority Lease No. 345322 was correctly stated, the plaintiff failed to fully state the additional particulars being "Crown Lease No. 10046 Lot 26 on DP 6420 in the province of Ba tikina of Ba consisting of an area of 552m2". If that were not enough the summons omitted the obligation that "the person summoned to appear on a day not earlier than sixteen days after the service of the summons" as mandated by Section 170 of the act. Their Lordships of the Supreme Court have emphasized the need to follow rules of the court and the consequences for not doing so Ponu Samy v. Dharam Lingam Reddy Appeal No. 1 of 1996 (SC) at 17. In applications such as this, the technicalities are strictly construed if only because of the drastic consequences that follow for one of the parties upon the relief sought being granted. It behoved the Plaintiff and his Counsel to have exercised more diligence in this regard."
(Emphasis Added)
Applying those principles to the instant case, I cannot resist in saying that the Plaintiff's Originating Summons can go no further.
In view of the approach, I have adopted, I do not think that there is any need for me to express my views on the substantive arguments of the parties.
(E) CONCLUSION
For the reason which I have endeavored to explain, I venture to say beyond a per adventure that the second mandatory requirement of Section 170 of the Land Transfer Act and the legal consequences that flow from non compliance defeat the Plaintiff's claim for vacant possession.
Therefore, the Defendant needs not show any evidence of a cause to remain on the property since this matter can go no further. I cannot see any other just way to finish the matter than to follow the law.
Accordingly, there is no alternate but to dismiss the Originating Summons.
(F) FINAL ORDERS
(1) Originating Summons is dismissed.
(2) The Plaintiff is ordered to pay costs of $1000.00 (summarily assessed) to the Defendant which is to be paid within 14 days from the date hereof.
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
25th September 2015
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