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Kelton Investment Ltd v Tabuyalewa [2016] FJHC 572; HBC15.2015 (23 June 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 15 of 2015


IN THE MATTER of part XXIV of the Land Transfer Act Cap. 131.


BETWEEN : KELTON INVESTMENT LIMITED a company incorporated in Fiji whose registered office is at 51-55 Foster Road, Walu Bay Suva, Fiji.

PLAINTIFF


AND : WALUSIO TABUYALEWA JNR of Calia Squatter Settlement, Navua, Fiji.


DEFENDANT


BEFORE: Master Vishwa Datt Sharma

COUNSELS: Mr. Anand Singh for the Plaintiff.

Mr. Savenaca Siga (As Mackenzie Friend) for the Defendant(s)

Date of Hearing: 11th August, 2015, 14th October, 2015 & 8th February, 2016

Date of Ruling: 23rd June, 2016


RULING

INTRODUCTION


  1. On the outset, it is important that I state that this is a Test Case which has been adopted by consent of all parties to the proceedings. The decision made in this Test case will apply to the remaining 16 pending cases whereby the Defendants have elected to contest the proceedings. Initially, a total number of 44 proceedings were instituted by the Plaintiff against several Defendants. Judgments have been delivered against 19 Defendants and a total of 8 families in occupation of the said land have voluntarily chosen to move out of the Plaintiffs property accordingly.
  2. The Plaintiff filed an Originating Summons [Eviction Proceedings] on 19th January, 2015 and sought for the following order:
  3. The Plaintiff’s application is supported by an affidavit deposed and filed by Anthony Ah Koy on 19th January, 2015.
  4. The Defendant deposed and filed his affidavit in Opposition on 30th March, 2015 and strongly opposed the Plaintiff’s application for vacant possession.
  5. This case proceeded to hearing on a defended basis and both parties to the proceeding were represented by Counsel and assisted by appointment of a Mackenzie friend, at the hearing.
  6. The Plaintiff and the Defendant furnished this court with their written submissions.
  7. This court has a duty to determine the pending issue before the court in a just and fair manner in terms of the laws provided for in ss169, 171 and 172 of the Land Transfer Act [Cap 131].

Plaintiff’s Case


  1. The Plaintiff is the registered proprietor of all that land comprised and described in the Certificate of Title No. 24709, Lot 2 on DP 2167 situated at Lot 2 Calia Road, Navua, Fiji. (Annexed to the Plaintiff’s affidavit and marked as “AAKI” is a true copy of the Certificate of Title No. 24709.
  2. The Defendants are not the registered proprietors of the land and do not hold any legal rights to occupy the land.
  3. The Plaintiff’s lawyers gave a notice to all the Defendants on 05th December, 2014 to quit and deliver vacant possession of the said property. (The notice is annexed and marked as “AAK2”.)
  4. That despite the said notice, the Defendants have failed and/or neglected to vacate the said property.
  5. Apart from all above, the Plaintiff has also filed and served an Affidavit in Support which is also taken into consideration and therefore the same will not be reiterated.

Defendant’s Case


  1. The Defendants are the descendants [inclusive of some original settlers] of the employees of the Fiji Banana Venture project between the 1930’s and 1950’s.
  2. The land in question referred to as being Lot 2 on DP 2167 comprised in the Certificate of Title No. 2167 which is known as “Calia” [part of] the land was previously known as Lot 6 & 7 on DP 2050 which is also known as “Calia” [part of].
  3. The land in question was previously owned by the Beneficiaries of the Estate of Thomas William Ross, Hugh Alistair Ross, Fay Ross, Douglas Fleming Stewart, Ronald Somerville Stewart and James Wilson Stewart, in which Kenneth Hugh Ross as per the Title (CT 24709) as the Trustee of the Estate of Hugh Alistair Ross and of Ray Ross.
  4. The Defendants main contention is that even if the 1995 meeting did not give them the full rights of ownership, they are at least promised by the Landlord ownership of the land in 1995 by Mr. K. Ross acting as the representative of the previous owners of the land as well as to stay on the land. Therefore, they built structures on the said land and continued to live on the said land until today.
  5. The Defendants are raising a Defence of Proprietary and Promissory Estoppel.
  6. Further the Defendants are saying that this action should not be decided on the Originating Summons but should have been commenced by a Writ action that would have allowed the Defendant’s to raise the serious and disputed matters of facts and law.
  7. The Defendants have also filed and served Affidavits in Opposition to the Plaintiff’s case and the same has been taken into consideration and therefore will not be reiterated.

THE LAW


  1. The application is filed in terms of s.169 of the Land Transfer Act [Cap 131] which provides as follows:

“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) lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”


  1. In the case of Ram Narayan v Moti Ram (Civ. App. No. 16/83) Gould J.P. said-

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."


  1. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act (Cap 131) respectively which stipulates 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."

(Underline is mine for emphasis)


  1. As far as the requirements in terms of section 172 are concerned, the Supreme Court in the case of Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p 2) said 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."

  1. The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Ajmat Ali v Mohammed Jalil (Action No. 44 of 1981 – judgment 2.4.82) where the court said:

"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. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.

(emphasis added)


  1. In Premji v Lal [1975] FJCA 8; Civil Appeal No 70 of 1974 (17 March 1975) the Court of Appeal said:

‘These sections and equivalent provisions of the Land (Transfer and Registration) Ordinance (Cap. 136-1955 Laws of Fiji) have been considered in a number of cases in this court and the Supreme Court. In Jamnadas & Co. Ltd. v. Public Trustee and Prasad Studios Ltd. (Civil Appeal No. 39 of 1972 - unreported) this court said –


  1. Under Section 172 of the Act the judge is empowered to dismiss the summons if the respondent proves to his satisfaction that he has a valid defence, a right to possession, locus standi and or a licence. It further provides that a judge may make any order and impose any terms that he may think fit. The dismissal of the summons is not to prejudice the right of a Plaintiff to take any other proceedings to which he may be otherwise entitled.
  2. It is for the defendant(s) to ‘show cause’ why he refuses to give vacant possession of the land comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua, in the Republic of Fiji Islands to the Plaintiff.
  3. Reference is made to the case authorities of Caldwell v. Mongston (1907) 3 F.L.R. 58 and Perrier Watson v. Venkat Swami (Civil Action 9 of 1967 - unreported) wherein the Supreme Court held ‘that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide the cases on summary proceedings of this nature, but will dismiss the summons without prejudice to the Plaintiff’s right to institute proceedings by Writ of Summons.’

ANALYSIS and DETERMINATION


  1. The question for this court to determine is whether the Plaintiff is entitled to the possession of the land comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua and occupied by the Defendants, of which the Plaintiff is the registered proprietor of, in terms of s.169 of the Land Transfer Act [Cap 131]?
  2. The Defendant’s Defence is that the Plaintiff is stopped from evicting the Defendants, since he has arguable grounds under the principles of proprietary and promissory estoppels.
  3. In this case, the Plaintiff must first comply with the requirements of section 169 of the Land Transfer Act cap 131, which are stated hereunder as follows-
  4. In this instance, the first limb of s169 applies; the plaintiff is the last registered proprietor of the land comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua.
  5. In this respect the plaintiff has annexed in their affidavit a certified true copy of the land comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua, which shows clearly that the land and Title in question was transferred to the Plaintiff, Kelton Investments Limited, by way of transfer on 29th November, 2012 at 11:06am under transfer number 766877.
  6. The Plaintiff is for the purposes of section 169 of the Land Transfer Act Cap 131, the last registered proprietor of the land comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua.
  7. Sections 39-42 of the Land Transfer Act, and under the Torrens system of land registration which operates in Fiji, the title of the registered proprietor is indefeasible unless actual fraud is proved. (Case of Subramani v Sheela [1982] FJCA 11; [1982] 28 FLR 82 (2 April 1982); Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p. 210; Fels v Knowles 26 N.Z.L.R. 608, at p 620 refers).
  8. In Subramani (supra) the Fiji Court of Appeal (per Gould V.P.’ Marsack, J.A., and Spring J.A.) states as follows-

‘The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v Knowles 26 N.Z.L.R. 608. At page 620 it is said;-


“The cardinal principle of the statute is that the register is everything, and that, except in case of the actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world.”


  1. Bearing in mind the above, I find that the Plaintiff has the locus standi to bring this action against the Defendant(s) in this case.
  2. After the Plaintiffs have established the first limb test of section 169 that is that the Plaintiff is the registered proprietor of the subject property comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua, then the Defendant bears the onus of showing cause as to why vacant possession should not be granted to the Plaintiff.
  3. Pursuant to section 172 of the Land Transfer Act Cap 131, the Defendant needs to satisfy this court on affidavit evidence that he has a right to possession. (Case of Muthusami v Nausori Town Council F.C.A. 23/86 refers).
  4. There is no need to prove conclusively a right to possession and it is sufficient for the Defendant to prove that there is some tangible evidence establishing the existence of a right or of an arguable defence. (Case No. 152 of 1987- Morris Hedstrom Ltd v Liaquat Ali refers).

Promissory and Proprietary Estoppel


  1. The Defendant raised the defence of Promissory and Proprietary Estoppel stating the following-

“The defendants claim that they have collectively developed the property and that the defendants have stayed on the property for more than 70 years. The Defendants allege that on 25th June, 1995 there was a meeting between the Defendants and Mr. Ross a representative of the previous owners of the subject property. The Defendants contention is that at the meeting there was an agreement that the previous owners will transfer the subject property to the Defendants. The Defendants say that certain gifts were exchanged with Mr. Ross. The Defendants in the face of the 1995 meeting and the representation made by the previous owners ‘representative’, Mr. Ross, relying on the promise to build structures on the land in question and lived there until today.”


  1. However, the Counsel for the Plaintiff submitted that the Plaintiff is the registered proprietor of the land and not the Defendants. Therefore, the Defendants do not hold any legal rights to occupy the land.
  2. Proprietary estoppel used to be called ‘estoppel by acquiescence’ (Lord Denning, The Discipline of Law, Butterworths, New Delhi, Aditya Books, 1993 at page 216).

In Denny v Jessen [ 1 NZLR 635 at 639 Justhite sute summarized proprietary estoppel as follows:

"In S"In Snell's Principles of Equity (27Plaimmer v Wellington Coty Corporation (1884) 9 AS 699; NZPCC 250 250 it was stated by the Privy Council that "...the equity arising from expenditure on land need not ferelyhe ground that the interest to be secured has nots not been expressly indicated."(ibid,ibid, 713, 29). After referring to the cases, including Ramsden v (;[1866] UKLawRpHL 7; (1866) LR 1 HL 129, the opinion of the Privy Council continued, "In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied" (9 App Cas 699, 714; N250, 260). In ChalmChalmers voe [1u> [1963] 1WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [ [1965] EWCA Civ 4; 2 QB 29; ; [1965] 1 All ER 446. There aere a son had bon laon land owned by his father who died leaving his estate to others. Lord Denning MR, with whnckDanckwerts and Salmon L JJ agreed, said that all that waessary;


"... is that the licensee shouldhould, at the request or with the encouragement of the landlord, have sthe money in expectation ofon of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do." (ibid, 37,449).

(Underline is mine)


  1. Reference is made to the case of Wilfred Thomas Peter v Hira Lal and Frasiko; HBC 40 of 2009 where Her Ladyship Justice Wati stated:

'I must analyse whether the four conditions have been met for the defense of proprietary estoppel to apply. The four conditions are:

i. An expenditure;

ii. A mistaken belief

iii. Conscious silence on the part of the owner of the land; and

iv. No bar to the equity


  1. In order to satisfy this court with the Four (4) conditions of the proprietary test, the Defendant and the Plaintiff submitted the following arguments to support their case-
    • (i) Expenditure- The Defendant in his Affidavit in Opposition states at paragraphs 6M (i-iv) inclusive that the Defendants were vested with the land for their own use and benefit absolutely in 1995. Him and others have collectively done massive improvements to the said land in terms of Development set out thereunder. At paragraph 4 (a) he states that the Defendants came to know of the new registered owner upon perusing annexures “AAK 2 “when the same was served on them on 07th February, 2015.

Whereas, the Plaintiff in their submissions admitted that the Defendants have built a number of houses on the property but there does not appear to be any form of consent or approval from Navua Rural Local Authority for the development. The Plaintiff further states that in any event these developments do not grant a right to occupation to the Defendants on the Plaintiff’s land.


(ii) Mistaken Belief- the Defendant at paragraphs 3 and 4 of his Affidavit in Opposition states that the Defendants were vested with the land for their own use and benefit absolutely, in 1995 and only came to know of the new registered owner upon perusing annexures “AAK 2 “when the summons was served on them on 07th February, 2015. At paragraph 6 (D) and (E), the Defendant makes reference to annexures “F” and “G” which were obtained from the Navua District Office and say this will confirm what their status would be in terms of their entitlement to the said land in question. Further at paragraph 6 (F), (g) and (h); mentions about Ross family in Australia as beneficiaries agreeing through the District Officer for conditional agreement as to ownership of this land, and thereafter, Mr. Ross making an official visit to them with Government officials even agreeing to legal transfer of land and receiving numerous traditional gifts.

On the other hand the Plaintiff reiterates that it is the successor in Title to the previous registered owners. The Plaintiff purchased the property from the previous owners free of all encumbrances and or all alleged legal interest of any other parties including the Defendants herein. The Plaintiff further argued that as registered owner that there have been no or any legal rights created in favour of the Defendants. The Plaintiff submitted that the exchange of traditional gifts does not create a legal obligation on the part of the previous registered owners to transfer the property to the Defendants as alleged in Paragraphs 6 (1) of the Affidavit of Walusio Tabuyalewa.


(iii) Conscious silence on the part of the owner of the land- The Defendants maintain that the Mr. Ross conveyed the message of good news that the land in question will be transferred to the sitting Tenants as Defendants.

The Plaintiff submitted that the Plaintiff’s Affidavit in Reply is annexed with a letter (marked AAK) written by Munro Leys & Co to Mr Siga dated 24th December, 2013 and at paragraph states “Mr. Ross is not and has never been the owner of the land but is the representative of the two deceased Estate the legal representatives of which reside in Australia and Scotland. Even if there was any reason for these Estates to engage with the Defendants, it will be time for you to secure agreement working with them. It would certainly be difficult for you to serve legal proceedings on them.”

Therefore, the Plaintiff argues that in the circumstances it cannot be said that Mr. Ross was the legal owner of the property or had any legal authority to vest the property of the Defendants.

(iv) No Bar to Equity- The Plaintiff submitted that it was clear from the Defendant’s affidavit that the number of house built on the property had any building permits, consents, or approvals from the Navua Rural Local Authority.

Reference is made to the case of Tuidama v Prasad [2011] HBC 508 of 2007 Mutunayagaum said;-

“Snell’s Equity, 29 Ed, page 576 provides that ‘no equity will arise if it is to enforce the right claimed would contravene some statute.”

“No equity will arise if to enforce the right claimed would contravene some statute, or prevent the exercise of a statutory discretion or prevent or excuse the performance of a statutory duty.”


  1. Further, there is no evidence of any written contract or agreement between the previous owners and the Defendant(s) allowing them to stay or occupy the land in question and be entitled to the land he is occupying. For the purpose of this application the Defendant(s) has to only show a right to possession of the land and nothing else.
  2. It is not in dispute that the Defendant(s) have built a number of houses on the property and such expenditure was for the benefit of the Defendant(s) and not for the owners of the land.
  3. There appears to be no or any form of consent or approval from the Navua Rural Local Authority for the development.
  4. The issue then is whether such expenditure gives rise to create any right to the land and Defendant (s) continuation in possession.
  5. No evidence was adduced or produced to establish that the Defendant(s) had obtained any consent from the owners of the land in question to build a number of houses on the said property or to make any improvement.
  6. It is also to be noted that there was no concrete consent, promise or undertaking of any nature made by the Plaintiff to the Defendant. Further, no documentary evidence has been produced by the Defendant(s) with respect to the number of houses built and how much of improvements have been made by the Defendant(s).
  7. In order to satisfy the court on this limb, the onus is on the Defendant(s) to prove that he had some sort of genuine belief that he owned the land he was living or had ownership rights to the land. No evidence has been produced by the Defendant(s) to state that the Defendant(s) was allowed to stay on the land and that the Ross Family in Australia agreed through the District Officer, Navua for a conditional agreement as to the ownership and legal transfer of land to them upon the exchange of Traditional gifts.

Reference is hereby made to the case of Datt v Datt Civil Appeal No. ABU 32 of 2013, and Snell’s Equity, further stated that ‘belief either that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest...”And therefore has no equity in respect of his expenditure.’


  1. Further, the onus is on the Defendant to prove that the Plaintiff knew about the building of the house and took no steps to prevent the Defendant from incurring such expenditure. No evidence has been adduced by the Defendant to show that the Plaintiff had ever stopped the Defendant(s) from building or expanding the construction of the number of houses on the said land and whether any consent was sought to build on the land or incur expenditure. It is simple to allege something but difficult to substantiate the claim.
  2. I find that there is no evidence in terms of knowledge on the part of the owners of the land that the Defendant(s) in occupation of the land had and was continuing to incur expenditure and the owners had nothing to stop him from doing so. It is only evident from the affidavit in Opposition of the Defendant that the owners told the Defendant(s) that there was a conditional agreement to the transfer and ownership of the land in question to the Defendants upon receiving the traditional gifts in exchange. If this did take place then it was just a verbal discussion and no concrete commitment was made to see that the actual physical entitlement to transfer the ownership of the land was made to the Defendant(s). There is no such evidence tendered to court.
  3. It is also clear from the affidavit of the Defendant that the structures built by him did not have building permits, consents, or approvals from Navua Rural Local Authority.

Reference is made to the case of Tuidama v Prasad [2011] HBC 508 of 2007 Mutunayagaum J said;


“Snell’s Equity, 29 Ed, page 576 provides that ‘no equity will arise if it is to enforce the right claimed would contravene some statute.’


  1. Section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) provides;

No actions shall be brought-

(d) Upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them unless the agreement upon which such action is to be brought or some memorandum or note thereof in writing.’
  1. In terms of the abovementioned Act, the Defendant has clearly not complied with the above section 59 (d) of the Indemnity, Guarantee and Bailment Act (Cap 232) provision. In that, there was no agreement entered into and therefore the Defendant(s) has failed to prove the necessary premises of fact in order to found an application of the equitable doctrine of proprietary estoppels.
  2. Bearing in mind the aforesaid arguments raised by both parties to the proceedings, the Plaintiffs contention all along has been that the Plaintiff is the registered proprietor of all that land comprised and described in Certificate of Title No. 24709, Lot 2 on DP 2167 situated at Calia Road, Navua. That the Defendants are not the registered proprietors of the land and do not hold any legal Title or legal rights to occupy the land. The Defendant’s claim as to estoppels is misconceived and none of the test hereinabove has been satisfied by the Defendants in the instant case.

Whereas, the main contention of the Defendant is that they have collectively developed the property and that the Defendant(s) have stayed on the property for more than 70 years. Further they state that it was agreed between them and the previous owners that the subject land will be transferred to them after exchange of gifts in a traditional manner.


Hon. Justice Mutunayagaum in the case of Tuidama v Prasad [2011] HBC 508 of 2007 held-

“Snells Equity, 29 Ed, page 576 provides that ‘No equity will arise if it is to enforce the right claimed would contravene some statute.”


The Judge further discussed the failure of the Defendant in not complying with section 59 (d) of the Indemnity, Guarantee and Bailment Act by stating ‘that the Defendant had not complied with the provisions that there was no sale and purchase agreement entered into by the parties.


Section 59 (d) of the Indemnity, Guarantee and Bailment Act, Cap 232 provides-


No action shall be brought;


(d) Upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them unless the agreement upon which such action is to be brought or some memorandum or note thereof in writing.’


In the present case, the Defendant(s) stated that the previous owners told the Defendant(s) that there was a conditional agreement to the transfer and ownership of the land in question to the Defendants upon receiving the traditional gifts in exchange. Further, they have built a number of houses on the property which is not in dispute, but there does not appear to be any form of consent or approval from Navua Rural Local Authority for the development.


The Defendant has failed to furnish court with any agreements or other documentary written evidence in order to show to court that the previous owners and the Defendant(s) did enter into any sort of agreement which would be in conformity with the abovementioned Act.


On the other hand, Town and Country Planning Act Cap 139 restricts any developments on a land unless proper consents have been obtained from the local authority.

The Defendant(s) has failed to furnish court with any plans, permits or approvals to prove any building and expansion on the said property by the Defendant(s) on the consent of the owners of the land in question.


  1. Finally, the Defendant(s) had knowledge that he had been in occupation of the said property in question for 70 years. The Defendant(s) did not think appropriate and important that in the said circumstances he should have made an appropriate application for a ‘Vesting Order’ and seek any legal interest and entitlement to the property in occupation, rather he thought fit and proper to continue with the occupation of the said premises in the manner that he did and is now faced with an application for vacant possession accordingly.
  2. For the aforesaid rational, I find that the property comprised in Certificate of Title No.24709 being Lot 2, DP 2167, situated at Calia, Navua, in the Republic of Fiji Islands was transferred to the Plaintiff on 29th November, 2012 at 11.06am under transfer number 766877. Thus, the Plaintiff being the owners of the property in question.
  3. The defendant(s) has failed to show any cause including a right to possession or has tangible evidence establishing a right or supporting an arguable case for such a right that must be adduced in terms of section 172 of the Land Transfer Act Cap 131.
  4. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  5. Further, the Defendant has failed to satisfy this court on the four (4) limb test for the proprietary estoppel which he raised in his Defence.
  6. Following are the final orders of this court.

FINAL ORDERS


  1. The Defendant(s) to give vacant possession of the land comprised in Certificate of Title No. 24709 being Lot 2, DP 2167, situated at Calia, Navua, in the Republic of Fiji Islands, to the Plaintiff.
  2. The Defendant(s) to deliver vacant possession to the Plaintiff in one (1) month’s time on or before the 23rd July, 2016.
  1. Execution is hereby suspended till the 23rd July, 2016.
  1. There will be no order as to Costs made against the Defendant(s) at Court’s own discretion.

Dated at Suva this 23rd Day of June, 2016


...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva


cc. Mr. Anand Singh of Singh & Singh Lawyers, Suva.
Mr. Savenaca Siga of Calia, Navua.


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