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Hassan v Hassan [2016] FJHC 53; HBC143.2015 (4 February 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 143 of 2015

IN THE MATTER of Section 169, 170 and 171 of the Land Transfer Cap. 131

BETWEEN :

ABDUL HASSAN of Wailailai, Ba, Fiji Islands,
PLAINTIFF

AND :

WAZID HASSAN and SONIA SAINAAZ KHAN both of
Wailailai, Ba, Fiji
DEFENDANTS

(Ms.) Adi Vika Marama Durutalo for the Plaintiff
Mr. Ravneet Charan for the Defendants

Date of Hearing: - 29th October 2015
Date of Ruling : - 04th February 2016

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Plaintiff's Originating Summons dated 31st August 2015, made pursuant to Section 169 of the Land Transfer Act, Cap 131, for an Order for Vacant possession against the Defendants.

(2) The Defendants are summoned to appear before the Court to show cause why they should not give up vacant possession of the Plaintiff's property comprised in "Agreement for Lease", NLTB reference No; 4/1/4084, Land known as "Naiyarayara" subdivision Lot 9 having an area of 1112 square meters.

(3) The Application for eviction is supported by an Affidavit sworn by the Plaintiff on 24th August 2015.

(4) The application for eviction is strongly resisted by the Defendants.

(5) The Defendants filed an Affidavit in Opposition opposing the application for eviction. Regrettably, the Plaintiff did not file an affidavit in reply.

(6) The Plaintiff and the Defendants were heard on the Originating Summons. They made oral submissions to Court. In addition to oral submissions, the Counsel for the Defendants 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) 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 deposes inter alia; (as far as relevant)

Para 3. THAT I am the registered Lessee of the property

comprised in TLTB Agreement for Lease Land known as Naiyarayara Subdivision Lot 9 TLTB Reference No. 4/1/4084 in the Province of Ba and in the Tikina of Bulu having an area of 1112 square meters (a copy of the said Agreement for Lease is annexed hereto and marked with annexure "A")

4. THAT the Defendants are occupying the property without my consent.

5. THAT the Defendants are illegally and unlawfully occupying the said property comprised in TLTB Agreement for Lease, Land known as Naiyarayara Subdivision Lot 9 TLTB Reference No. 4/1/4084 in the Province of Ba and in the Tikina of Bulu having an area of 1112 square meters.

6. THAT since the Defendants are occupying the land without the consent of the Plaintiff and Itaukei Land Trust Board, the occupation of the Defendants of the said property is illegal. The Defendants are not a tenant and has no legal or equitable rights to remain on the said property.

7. THAT I have made several requests to the Defendants to vacate the property but the Defendants have either neglected and/or refused to vacate the said premises.

8. THAT upon the Defendants refusal to vacate the premises I caused my solicitors to give a Notice to Quit and deliver vacant possession of the said property dated the 10th day of June, 2015. (A copy of the said notice to vacate is annexed hereto and marked with annexure "B")

9. THAT despite the services of the said notice, the defendants have failed to vacate the said property.

10. THAT to date the Defendant continues to illegally occupy the said property without any right.

11. THAT by reason of the matters hereof, I am therefore seeking immediate vacant possession of the property as I need my premises for my own use and benefit.

(4) The Defendants for their part in seeking to show cause against the Originating Summons, filed an Affidavit in Opposition which is substantially as follows; (As far as relevant)

Para 4. THAT as to paragraph 3 of the Affidavit we admit that

the Plaintiff is the registered lessee of the subject land and furthermore, that there is not TLTB reference number in Annexure A.

5. THAT we deny paragraph 4 of the Affidavit and say as Follows:

1. That the Plaintiff is the biological father of the First Named Defendant.
   
2. That the first named defendant has lived on the said land since his birth and that is from 1964.
   
3. That the First Named Defendant was married to the Second named Defendant in 1994 and we have lived on the said property ever since with their family on the said land and have continued to reside there since then with the knowledge of the Plaintiff.
   
4. That we assisted the Plaintiff in building the house by providing financial support and man power and then we further on our own expense built two bedroom and utilities with the consent of the Plaintiff.
   
5. That we have three children from our marriage and they have lived on the said land from their birth.
   
6. At that time the First Named Defendant was working as Driver and his wages was $150 per week. He used all his savings as well as his weekly wages to purchase building materials to build the house.
   
7. At that time the Second Named Defendant was a house executive and used to provide daily meals to the Plaintiff and by all means and looked after him.
   
8. We were advised by the Plaintiff that we can stay at the property as long as we want to and that no one can evict from the property.
   
9. That the Plaintiff had left the property for some time and we then repaired the same.
   
10. That the Plaintiff advised me that if we want to use the property then we have to pay annual land rental to the lessor at $380 per year.
    
11. That the Defendant had paid annual land rental to the lessor from the past 20 years. Annexed hereto and marked with letter "A" are copies of the receipts from Native Land Trust Board dating back to 2010.
    

6. THAT we deny paragraph 5 of the Affidavit and repeat paragraph 5 herein and further state that we are occupying the property illegally.

7. THAT we deny paragraph 6 of the Affidavit and repeat paragraph 5 herein.

8. THAT we deny paragraph 7 of the Affidavit and repeat paragraph 5 herein.

9. THAT we deny paragraph 8 of the Affidavit and repeat paragraph 5 herein.

10. THAT we deny paragraph 9 of the Affidavit and repeat paragraph 5 herein.

11. THAT we deny paragraph 10 of the Affidavit and repeat paragraph 5 herein.

12. THAT we deny paragraph 11 of the Affidavit and repeat paragraph 5 herein.

13. THAT we deny paragraph 12 of the Affidavit and repeat paragraph 5 herein and further state that we have a good defence on merits as we have carried substantial development on the property and by virtue of the said developments and the fact that during the said development there was no objections from the Plaintiff we are advised and believe that we have an equitable interest in the property.

(C) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and Judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiff now seeks.

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

(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]

(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."

(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 as to 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.

(2) In all applications under Section 169 of the Land Transfer Act, the Plaintiff/Applicant must first comply with the requirement of the law.

The first requirement of Section 169 of the Land Transfer Act is that the Plaintiff must be the "last registered proprietor" or a "lessor with power to re-enter where the lessee or tenant is in arrears" or a "lessor against the lessee or tenant where a legal Notice 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?

This is the threshold question.

As far as Section 169 (b) and (c) are concerned they apply where there is a landlord and tenant relationship.

Section 169 (b) and (c) do not apply in the case before me since the Defendants are not the Plaintiff's Tenant who are in arrears and/or the term of the lease has expired.

Therefore, in this instant case, the first limb of Section 169 applies.

Under Section 169 (a), the Plaintiff must be "the last registered proprietor" of the land in question.

Therefore, has the Plaintiff proved that he is the last registered proprietor of the land in question?

This is the pivotal question that awaits the determination by this Court.

I heard no word said by the counsel for the Defendant with regard to the Plaintiff's legal standing to bring this action.

But this court is bound to consider whether the Plaintiff has proved that he is the last registered proprietor of the land in question. Because it is the statutory foundation for an application made pursuant to Section 169 (a) of the Land Transfer Act. The Court must be satisfied that this preliminary is complied with even if no objection is taken by the Defendant. I regard this duty of the Court as more important than anything else in the administration of justice.

In applications such as this, the technicalities are strictly construed because of the drastic consequences that follow for one of the parties upon the relief sought being granted.

It is essential to bear in mind that the concept of justice is not confined to the interests of particular litigants; it embraces and extends to the protection of the public veil. The crucial point is that the Court should arrive at a just result.

I ask myself what is meant by the phrase "Registered Proprietor".

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".

The interpretation of the words contained in the Property Law is found in Section 2 and according to the said interpretation the word registered is defined as follows:

"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and the 'the register' and 'registration' have corresponding meaning.

(Emphasis added)

It is common ground that the land in question is "Native Land" within the meaning of Native Land Trust Act. The Plaintiff says that he is the last registered proprietor of the land in question.

Reference is made to paragraph (03) of the Affidavit in Support of the Originating Summons.

Para 3. THAT I am the registered Lessee of the property

comprised in TLTB Agreement for Lease Land known as Naiyarayara Subdivision Lot 9 TLTB Reference No. 4/1/4084 in the Province of Ba and in the Tikina of Bulu having an area of 1112 square meters (a copy of the said Agreement for Lease is annexed hereto and marked with annexure "A")

(Emphasis added)

The annexure "A" is the "Agreement to Lease" granted by the NLTB for residential purposes. It bears the Commissioner of Stamp Duties seal. The lease is only for 50 years. According to the application, the Plaintiff derives his right to the land by virtue of an "Agreement to Lease" issued by the Native Land Trust Board. Although he deposed in his Affidavit that he is the last registered proprietor of the subject land (paragraph 03 of the Affidavit in Support) he annexed to the Affidavit a copy of an "unregistered Agreement to Lease". In my judgment, without the proof of registered interest the Plaintiff cannot succeed.

As I mentioned earlier, 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".

The interpretation of the words contained in the Property Law is found in Section 2 and according to the said interpretation the word registered is defined as follows:

"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and the 'the register' and 'registration' have corresponding meaning.

(Emphasis added)

The provisions of Section 169 of the Land Transfer Act are mandatory and there is no discretion given to the Court as to the persons who might commence proceedings pursuant to that Section.

On the whole of the material disclosed in this case, it seems to me perfectly plain that the Plaintiff has no legal standing to bring this action. It is not competent for the Plaintiff to bring this action for vacant possession because the Plaintiff is not the registered proprietor of the land in question, a condition precedent for proceedings brought under Section 169 (a) of the Land Transfer Act.

Accordingly, I have no alternate but to dismiss the Originating Summons.

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

In view of the approach I have adopted, I do not consider it necessary for me to express my views on the merits of the Defendants arguments relating to their right to possession. It will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the Defendants arguments relating to their right to possession.

Essentially that is all I have to say.

(E) FINAL ORDERS

(1) The Originating Summons is dismissed.

(2) The Plaintiff is ordered to pay costs of $1000.00 to the Defendants which is to be paid within 14 days from the date hereof.

I do so order.

.......................................
Jude Nanayakkara
Master of the High Court

At Lautoka
04th February 2016