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Cole v Bale [2015] FJHC 834; HBC159.2014 (29 October 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 159 of 2014

BETWEEN:

SIMON COLE of Vuda, Lautoka, Businessman as the Sole Executor and Trustee of the Estate of ALLAN THOMAS FLETCHER a.k.a. ALAN THOMAS FLETCHER a.k.a. ALAN FLETCHER late of Lot 19, Bilalevu, Valley Road, Sigatoka, Deceased, Testate.
PLAINTIFF

AND:

NAOMI BALE of Bilalevu, Valley Road, Sigatoka.
DEFENDANT

(Ms.) Seini Tokasa Tinaikoro for the Plaintiff.
Mr. Jasveel Karan Singh for the Defendant.

Date of Hearing: - 23rd May 2015
Date of Ruling : - 29th October 2015

RULING

(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff's Summons dated 01st October 2014, made pursuant to Section 169 of the Land Transfer Act, Cap 131 for an Order for vacant possession against the Defendant.

(2) The Defendant is summoned to appear before the Court to show cause why she should not give up vacant possession of the Plaintiff's property comprised in Certificate of Title No:- 28792 known as Lot 19 on DP 6884 "Bilalevu" containing an area of 3.8053 ha.

(3) The application for eviction is supported by an Affidavit sworn by the Plaintiff on 25th September, 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. The Plaintiff did not file an affidavit in reply.

(6) The Plaintiff and the Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Plaintiff and the Defendant filed a careful and comprehensive written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What are the circumstances that give rise to the present application?

(2) The Plaintiff is the sole executor and Trustee of the estate of "Alan Thomas Fletcher". The deceased "Alan Thomas Fletcher" was the last registered proprietor of the land comprised in Certificate of Title No: - 28792. The Defendant is the widow of the deceased and currently resides on the property.

(3) The Plaintiff in his Affidavit in Support deposes inter alia (so far as relevant);

Para 4. On the 5th day of July 2012, I as the sole executor and trustees of the Estate of ALLAN THOMAS FLETCHER aka ALAN THOMAS FLETCHER aka ALAN FLETCHER have entered into a Sale and Purchase Agreement with Lionel Charles Gibson and Fanifau Tekela Gibson. I crave leave to refer to a copy of Sale and Purchase Agreement a copy whereof is annexed hereto and marked "B".

5. On or about the 4th day of June 2014 I caused my Solicitors Messrs S B Patel & Co of Lautoka to give the Defendant a notice to quit and deliver up vacant possession of the house occupied by the Defendant. I am informed by KESHWA NAND of Rakraklevu, Sigatoka, Bailiff and verily believe that on the 5th day of June 2014 he served the notice to quit on the Defendant. I crave leave to refer to the said notice to quit and Affidavit of Service, copies of which are annexed hereto and marked "C" and "D" respectively.

6. Despite receipt of the said notice to quit (hereinbefore referred to) the Defendant continues to neglect and/or refuses to give up vacant possession of the house and remains there unlawfully as a trespasser.

7. By reason of the matters aforesaid, I have been deprived of the use and enjoyment of the house and suffered loss and continue to suffer loss and damage.

8. I pray that this Honourable Court will make Order in terms of the Summons for Ejectment issued therein.

(4) The Defendant for her part in seeking to show cause against the Summons, filed an Affidavit in Opposition, in which she deposed inter alia (so far as relevant);

Para 4. THAT I am the lawful wife of ALLAN THOMAS FLETCHER a.k.a. ALAN THOMAS FLETCHER a.k.a. ALAN FLETCHER late of Lot 19, Bilalevu, Valley Road, Sigatoka, Deceased.

5. THAT paragraph 1, 2 and 3 are admitted and I wish to further state the property is the matrimonial house which was bought by my late husband and after our marriage we had been residing in the subject property before my late husband became sick.

6. THAT as to paragraph 4 I wish to state that I was not at any point of view in time consulted by the Plaintiff in respect of the sale of the property as I am the lawful wife of the deceased and I only came to know that the subject property was being sold by the Plaintiff by the notice which was served on me dated 4th day of June 2014.

7. THAT I admit paragraph 5 that a notice to quit dated 4th day of June, 2014 was served by a registered bailiff Mr. Keshwa Nand of Sigatoka on the 5th day of June, 2014.

8. THAT I deny paragraph 6 and further stated that I am not unlawfully occupying the subject property as I am the lawful wife of the deceased and after my marriage of the deceased I have been residing in the subject property since and I have worked tirelessly worked in the farm with the deceased in the up keeping and maintenance of the subject farm and the chattels therein and save to admit that I was served with the notice to quit.

9. THAT I cannot deny nor admit paragraph 7 as I am not aware of the same and the Plaintiff has failed to identify the losses and damages that he has incurred by me occupying the subject property.

10. THAT I verily believe and have been informed by my Solicitors that the Caveat has been re-lodged at the Office Registrar of Titles on the subject property on the 27th day of October, 2014 vide lodgment slip No. 388053 and the same is yet to be endorsed on the title. Annexed hereto and marked with the letter "A" is a copy of lodgment slip No. 388053.

11. THAT I have filed a civil proceeding at the High Court in Suva whereby the Orders which I have sought restraining Orders against the above named Plaintiff and the Probate No. 51712 granted by the High Court to be revoked and the Rules of Intestacy be applied and letters of administration to be granted to me.

12. THAT I verily believe and have been informed by my Solicitors that I have a share in the Estate of the deceased as I was the lawful wife. Annexed hereto and marked with the letter "B" is a copy of the Writ of Summons.

13. THAT I am fully dependent on the property which I have been residing in with my late husband and if the subject property will be sold then I will not gain anything from the proceeds of the sale as I am not mentioned as one of the beneficiary in the Will that was executed by my late husband without me being present.

14. THAT I am entitled to a share in the Estate of my late husband as I have worked tirelessly in the farm with my husband and contributed towards the substantial development of the residential property.

15. THAT as a further defence I wish to state that the amount stipulated in the Sale and Purchase Agreement in the sum of $150,000.00 (One Hundred and Fifty Thousand Dollars) is less and in the said agreement the Plaintiff and/or the Counsel for the Plaintiff has failed to indentify the properties which are in the subject property particularly the residential property itself.

16. THAT the Will and Probate unto which the Plaintiff has executed the Sale and Purchase agreement and being granted the Executor and Trustee is in question and/or yet to be determined by the High Court in Suva and the Plaintiff is well aware of the same as the Writ of Summons has been duly served on the Plaintiff in this action.

(C) THE LAW

(1) Against this factual background, it is convenient to indicate something of the relevant law.

(2) Rather than refer in detail to the various authorities, I propose to set out, with only very limited citations, what I take to be the principles in play;

(3) 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) .....;

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]

(4) 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.'

(5) 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."

(6) 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.

(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 paragraphs (1) and (2) of the Affidavit in Support of Summons;

Para 1. I am the sole Executor and Trustee of the Estate of ALLAN THOMAS FLETCHER a.k.a. ALAN THOMAS FLETCHER a.k.a. ALAN FLETCHER late of Lot 19, Bilalevu, Valley Road, Sigatoka, Deceased, Testate contained and described in Certificate of Title No. 28792 known as Lot 19 on DP 6884 "Bilalevu" (part of) containing an area of 3.8053 ha (whole) (hereafter referred to as the said land). I crave leave to refer to a copy of Certificate of Title No. 28792 a copy whereof is annexed hereto and marked "A".

2. The late ALLAN THOMAS FLETCHER a.k.a. ALAN THOMAS FLETCHER a.k.a. ALAN FLETCHER was the last registered proprietor of Certificate of Title No. 28792 known as Lot 19 on DP 6884 "Bilalevu" (part of) containing an area of 3,8053 ha (whole).

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"

According to the memorial of the Certificate of Title No: 28792, the deceased "Allan Fletcher" was the last registered proprietor of the land in question.

It seems to me perfectly plain that the Plaintiff exercises his right as sole executor and Trustee of the deceased's estate, who is the last registered proprietor, to apply for the ejection of the Defendant from the property.

Therefore, it is clear beyond question that the application for eviction is more specifically brought under Section 169 (a) of the Land Transfer Act. It is pertinent to note that the Plaintiff's "locus standi" or legal standing to bring this action is not disputed by the Defendant.

(2) 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.

SUMMONS

LET ALL PARTIES concerned attend before a Master in Court at the High Court, Lautoka on Friday the 28th day of November, 2014 at the hour of 8.30 o'clock in the forenoon on the hearing of an application by the abovenamed Plaintiff that the Defendant NAOMI BALE to show cause why she should not give up immediate vacant possession to the Plaintiff of the land occupied by the Defendant contained and described in Certificate of Title No. 28792 known as Lot 19 on DP 6884 "Bilalevu" (part of) containing an area of 3.8053 ha (whole) on the grounds set forth in the Affidavit of SIMON COLE and duly sworn and filed herein.

AND that the costs of and incidental to this application may be paid by the Defendant to the Plaintiff.

This Summons will be attended by Counsel for the Plaintiff.

DATED this 1st day of October, 2014.

(Emphasis Added)

In light of the above, I have no doubt personally and I am clearly of opinion that the first requirement of Section 170 of the Land Transfer Act, has been complied with.

Now comes a most relevant and, as I think, crucial second mandatory requirement of Section 170 of the Land Transfer Act.

The Originating Summons was returnable on 28th November 2014. According to the Affidavit of Service filed on 12th November 2014, by the Plaintiff, the Originating Summons was served on the Defendant on 04th November 2014.

Therefore the Defendant is summoned to appear at the Court on a date not earlier than "sixteen days" after the Service of Summons. Therefore, the second express requirement of Section 170 of the Land Transfer Act, too has been complied with.

(3) Having carefully considered the pleadings, evidence and oral submissions placed before this Court, it is quite possible to say that the Plaintiff has satisfied the threshold criteria in Section 169 and 170 of the Land Transfer Act. The Plaintiff has established a prima facie right to possession. Now the onus is on the Defendant to establish a lawful right or title under which she is entitled to remain in possession.

In the context of the present case, I cannot help, but recall the rule of law enunciated in the following judicial decisions.

In the case of Vana Aerhart Raihman v Mathew Chand, Civil Action No: 184 of 2012, decided on 30.10.2012, the High Court held;

"There is no dispute between parties as to the locus standi of the Plaintiff, and once this is established the burden of proof shifted to the Defendant to prove his right to possession in terms of the Section 172 of the Land Transfer Act."

In the case of Morris Hedstrom Limited –v- Liaquat Ali, CA No: 153/87, the Supreme Court said that:-

"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."

(Emphasis is mine)

Also it is necessary to refer to section 172 of the Land Transfer Act, which states;

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]

(4) Before turning to the substance of the Summons, I ought to make a preliminary comment.

The Defendant filed an affidavit in Opposition opposing the application for eviction. The Plaintiff chose not to file an Affidavit in Reply. To be more precise, the Plaintiff has not sworn an Affidavit in reply to the Defendant.

In the result, it is enticing to accept the evidence of the Defendant in toto.

I am fortified in my view by the Court of Appeal judgment in "Jay Prakash v Savita Chandra" Civil Appeal No: ABU 0037/1985. It was held;

"Of course he did have to respond in our view the cause of events have taken and the consequences, if did not respond, rendered it as matter of prudence that he should reply if indeed he had a reply. And in the circumstances of the case in the absence of a reply, we hold the inference inescapable what the respondent had said to be true."
(Emphasis Added)

(5) Leave all that aside, what is the Defendant's reason refusing to deliver vacant possession?

I am once again reitering paragraphs (5), (6), (8), (11), (12), (13) and (14) of the Affidavit in Opposition filed by the Defendant.

Para 5. THAT paragraph 1, 2 and 3 are admitted and I wish to further state the property is the matrimonial house which was bought by my late husband and after our marriage we had been residing in the subject property before my late husband became sick.

(6) Let me consider the Defendant's reasons refusing to deliver vacant possession.

At the outset, the question I ask myself is whether or not the pendency of the Defendant's related Writ action in Suva High Court (see paragraph 11 and 12 of the Affidavit in Opposition) is enough to sustain a right to possession for the time being for the Defendant?
Addressing myself to the question "whether or not the pendency of an action is enough to sustain a right to possession for the time being for the Defendant", I would answer that upon the face of it, it is not.

In the context of the present case, I cannot help but recall the rule of law enunciated by the Fiji Court of Appeal in the following judicial decisions.

In the Fiji Court of Appeal case of Dinesh Jamnadas Lalji and Anor v Honson Limited, F.C.A. Civ. App. 22/85, Mishra J.A. said:

"At the hearing, the appellant's main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under Section 169 of the Land Transfer Act."
(Emphasis Added)

Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

".... That mere institution of proceedings by Writ did not by itself shut out a claim under Section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, an Affidavit evidence, some right to remain in possession which would make the granting of an Order under Section 169 procedure improper."
(Emphasis Added)

Applying those principles to the present case, I venture to say beyond a per-adventure that the pendency of a related civil action would be immaterial to Section 169 application. In view of the foregoing analysis, I am constrained to reject the ground adduced in paragraph (11) and (12) in the Defendant's Affidavit in Opposition.

(7) The Plaintiff has brought proceedings pursuant to Section 169 of the Land Transfer Act for summary removal of the Defendant claiming that she has no right to be on the land in question.

As I have said earlier, Plaintiff's locus standi or legal standing to bring this action is not disputed by the Defendant. The Plaintiff says that he exercised his powers as the appointed sole executor and trustee to fulfill his duties according to the last instructions of the deceased and entered into a Sales and Purchase Agreement for the sale of the property so to enable administration of the deceased's estate and payments of the deceased's debt. Moreover, the Plaintiff says that in order for the Plaintiff to administer the deceased's estate and repay the mortgage, the Defendant will be required to deliver vacant possession of the property to the Plaintiff to enable him to complete the sale of the property.

(8) If, as I apprehend the salient facts, the Defendant is the widow of the deceased "Allan Thomas Fletcher". She is in occupation of the property in question. She is not a beneficiary in the Will that was executed by her deceased husband. To be more precise, provision is not made for her from the estate of her deceased husband. She says that the property in question is the matrimonial house. She contends that she has a right to possession since she has been residing on the land and in occupation of the property in question since the marriage and she has contributed towards the substantial development of the property by working in the farm.

What concerns me is whether or not the Defendant has discharged the burden? The pivotal question that awaits determination by the Court is whether she has established some tangible evidence establishing a right or supporting an arguable case for such a right to remain in possession.

In the context of the present case, I remind myself the rule of law enunciated by the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2). The Supreme Court held;

At this stage, I ask myself, "is there a relevant interest enforceable at law?"

Would it be unfair to require the Defendant, the widow, to vacate the land, given the circumstances in which she came into possession, the length of the time she had been on the land and the fact that she had been maintained or supported by her deceased husband before his death and the need of her for the continuance of that maintenance and support?

The aforesaid question requires some examination of the law regarding "Inheritance in Fiji."

The law on "Inheritance in Fiji" is covered under "Inheritance (Family Provision) Act No. 12 of 2004.

I should quote Section (03) which provides;

Power of Court to Order Provisions

3. (1) If any person ("the deceased person") dies whether testate or intestate and adequate provision is not made for a spouse, child or dependant from the estate of the deceased person, the Court may, on application by or on behalf of the spouse, child or dependant, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the spouse, child or dependant.

(2) The Court shall not make an order under this section in respect of a dependant unless it is satisfied that some provision should be made for the dependant having regard to the extent to which the dependant was being maintained or supported by the deceased person before his death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case.

Applying the aforementioned Section to the instant case, what do we find?

In terms of Section (03) of the "Inheritance (Family Provision) Act No. 12 of 2004," the Defendant who was being substantially maintained and supported by the deceased husband has an interest to support a legal right to remain in occupation of the land in question for the continuance of that maintenance and support.

In adverso, with breathtaking disingenuousness, the Plaintiff submitted (Counsel in her submission writes ...)

"Under the Inheritance (Family Provision) Act No. 12 2004, the Defendant had an opportunity, not being a beneficiary of the deceased's estate, to make a claim as a dependent on the deceased, however, such an application was not made and pursuant to section 10 of the Inheritance (Family Provision) Act No. 12 of 2004 the Defendant is now time barred."

(Emphasis Added)

I must confess that the proposition advanced by the Plaintiff has some initial attraction of a rather formal kind, but is devoid of any merits.

I should quote Section (10) of the "Inheritance (Family Provision) Act No. 12 of 2004 which provides;

(10) Unless the Court otherwise directs, no application shall be heard by the Court at the instance of a party claiming the benefit under this Act unless the proceedings for such application be instituted within 9 months after the death of the person; but the Court may at its discretion hear and determine an application although a grant of probate or letters of administration has not been made.
(Emphasis Added)

In terms of Section (10), the Court has discretion to hear and determine an application which is not instituted within 9 months after the death of the person. Therefore, it is wrong to say that the action is time barred.

Having said that, I wish to emphasize that under Section 169 procedure, what is required is that some tangible evidence establishing a right or supporting an arguable case for such a right and not final or incontrovertible proof of a right to remain in possession.

(9) Having regard to the facts and circumstances of this case, I apply Section (03) of the "Inheritance (Family Provision) Act No. 12 of 2004.

Accordingly, I venture to say beyond a per-adventure that there is some tangible evidence supporting an arguable case for a legal right to remain in occupation.

(E) CONCLUSION

(1) Having had the benefit of written and oral submissions for which I am most grateful and after having perused the pleadings and the Affidavits of the parties, doing my best on the material before me, I have no doubt personally and I am clearly of the opinion that the Defendant has proved to the satisfaction of the Court a right to the possession of the land in terms of Section 172 of the Land Transfer Act.

(2) Accordingly, there is no alternate but to dismiss the Summons.

(3) I cannot see any other just way to finish the matter than to follow the law.

(F) FINAL ORDERS

(1) The Plaintiff's Summons dated 01st October 2014 is dismissed.

(2) The Plaintiff is ordered to pay costs of $500.00 (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
29th October 2015

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