IN THE HIGH COURT OF FIJI
WESTERN  DIVISION
AT  LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO.  HBC 110 of 2015

						IN THE MATTERof Section 169 of 						the Land Transfer Act, Cap. 131.

							
BETWEEN	:	DENIS RAJNEEL SEN of Wailailai, Ba, Fiji as Administrator De 
Bonis Non (with Will) of the ESTATE OF ARJUN SEN

									PLAINTIFF

A N D	:	DHARMEND KUMAR SINGH of Votua Road, Wailailai, Ba, Fiji, 

								DEFENDANT

Mr.Niven Ram Padarath for the Plaintiff
Mr.NazeemSahu Khan for the Defendant

Date of Hearing: -	11th May 2016
Date of Ruling  : -	02nd September 2016

RULING

(A)	INTRODUCTION

(1)	The matter before me stems from the Plaintiff’s Originating Summons dated 21st July, 2015 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 Certificate of Title No:- 16304, land known as ‘Sigawa’ and ‘Nakorogicu’ (Part of) in the District of Bulu, containing an area of two roods on Deposit Plan No:- 4171.
(3)	The application for eviction is supported by an affidavit sworn by the Plaintiff.

(4)	The application for eviction is strongly contested 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 submissions to Court. In addition to oral submissions, Counsel for the Plaintiff and the Defendant filed a careful and comprehensive written submission for which I am most grateful.

(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 judicial 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 inAzmat 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 uppermost 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 Plaintiffin his ‘Affidavit in Support’ deposed inter alia;

Para	1.	I am the Plaintiff named in these proceedings.

2.	I make this Affidavit on my own belief and personal knowledge and all the information contained in this affidavit is true to the best of my knowledge, information and belief.

3.	I am the administrator De bonis non with Will of the Estate of Arjun Sen.  Exhibited hereto and marked with the letter “DRS-1” is a copy of the Letters of administration De Bonis Non.

4.	The Estate is the registered proprietor of Land known as Sigawa and Nakorogicu (part of) containing area of two roots on deposit plan 4171 comprised in Certificate of title number 16304.  Exhibited hereto and marked with the letter “DRS-2” is a certified true copy of the said Title. 

5.	The Defendant named in these proceedings is trespassing and occupying a house situate on the above land which belongs to the Estate of Arjun Sen.

6.	I instructed the Solicitors for the Estate to serve the Defendant with a notice to evict.  Exhibited hereto and marked with the letter “DRS-3” is a copy of the said Notice.

7.	Despite being served the Defendant has failed to vacate the property.

8.	The Defendant through his Solicitors had responded to the said eviction notice.  Exhibited here to and marked with the letter “DRS-4” is a copy of the said response.

9.	In his abovementioned response the defendant is claiming that he has consent from a beneficiary, Mr. YogendraSen to occupy the said property.

10.	However, neither the beneficiary nor the Defendant obtained any consent or authorization from me to allow the Defendant to occupy the said property.

11.	I as the administrator have certain duties towards the estate and as such I need to ensure that estate properties are utilized to further the interest of the Estate and all the beneficiaries and not just one.

12.	A response was done to Nazeem Lawyers by Samuel K.Ram and a copy of the said response is exhibited hereto and marked with the letter “DRS-5”.

13.	I humbly seek order in terms of my application.
(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 2 of the said Affidavit I am unaware of 
the contents therein and therefore deny the same.

5.	That as to paragraphs 3 and 4 of the said Affidavit I admit the contents therein however further say that one UgendraSen who is my brother in law is also a beneficiary in the Estate of ArjunSen (said Estate) and I refer to Annexure “DRS-1” in the said Affidavit and in particular to the Will of the late MrArjunSen annexed thereto with respect to the same.

6.	That further to paragraph 5 above I say that I am the Lawful Attorney of UgendraSen who is the beneficiary under the said Estate referred to in paragraph 5 above.  Annexed herewith and marked as Annexure “A” is a copy of the Registered Power of Attorney in my favour from the said Ugendra Sen.

7.	That as to paragraph 6 of the said Affidavit save as to admitting that I am occupying a house on the land referred to by the Plaintiff, I deny the other contents therein and further say as follows:

i)	The house I am occupying referred to by the Plaintiff in the said Affidavit albeit technically falls under Estate of ArjunSen, however, the same was always in effect owned and occupied by the said UgendraSen a beneficiary in the said Estate who is presently working in New Zealand on a work permit; and

ii)	I not only the lawful Attorney of UgendraSen but I also have written authority from him to live in the same house.  Annexed herewith and marked as Annexure “B” is a copy of the said authority.

			8.	That I admit paragraph 6 of the said Affidavit.

9.	That I admit paragraph 7 of the said Affidavit however further say that I have the necessary legal authority to reside in the house and land referred to by the Plaintiff in his said Affidavit by virtue of the written authority and Power of Attorney and I refer to Annexures “A” and “B” herein and thus with respect I ought not to be evicted in the circumstances.

10.	That I admit paragraphs 8 and 9 of the said Affidavit and refer to Annexure “B” herein evidencing the consent and/or authority from UgendraSen to reside in his house.

11.	Thatas to paragraph 10 of the said Affidavit with respect I say as follows:

i)	The said UgendraSen being a beneficiary of the said Estate does not need any authority and/or consent from the Plaintiff to occupy the said land and/or house more so when according to Annexure “B” herein he claims the house to be his;

ii)	The said UgendraSen being a beneficiary of the said Estate and having occupied the said house since his birth and is entitled to occupy the said house without any authority from the Plaintiff and cannot be evicted there from;

iii)	As an administrator of the said Estate in which the said UgendraSen is a beneficiary the Plaintiff cannot by law deprive and/or take away the entitlement of UgendraSen to the house in issue as a beneficiary of the said Estate;

iv)	I having the necessary written consent and Power of Attorney from the said UgendraSen and authorized by the Power of Attorney am legally entitled to reside in the said House and land through the necessary authority of MrYogendraSen a beneficiary under the said Estate.

12.	That as to paragraph 11 of the said Affidavit with respect I say as follows:

i)	I admit that as administrator the Plaintiff has certain duties towards the said Estate and is required to act in the best interest of the estate and that includes in the best interest of the said UgendranSen and his right to reside in the house he has been living in since his birth.

ii)	However the said UgendranSen being a beneficiary of the said Estate and having occupied the said house since birth is with respect entitled to occupy the said house years without any authority from the Plaintiff and cannot be evicted therefrom by the Plaintiff merely because he is an administrator of the said Estate as that would not be acting in the best but contrary to the interest of the beneficiary Ugendra Sen.

iii)	As an administrator of the said Estate in which the said UgendraSen is a beneficiary the Plaintiff cannot by law deprive and/or take away the entitlement of UgendraSen as a beneficiary of the said Estate and his right to the house in issue since he has been residing in it since birth;

iv)	I having the necessary written consent (Annexure “B”) and Power of Attorney (Annexure “A”) from the said UgendraSen and with respect being so authorized am legally entitled to reside in the said House and land and further by virtue of the Power of Attorney I am if I may use the term legally “standing in the shoes” of the said UgendraSen and am legally entitled to reside in the house in issue being so authorized by a beneficiary of the said Estate.

v)	If UgendraSen would have been in Fiji he would have occupying the house in issue and the Plaintiff would not have been legally able to evict him therefrom, therefore the fact that I am occupying the same with the necessary authority and Power of Attorney from UgendraSen makes no difference as UgendraSen is legally entitled to duly authorize any other person to enjoy the benefit of the occupation of the said house to which he is entitled to occupy had he been in Fiji.  Further that UgendraSen has advised me that he will continue to reside in the same house that the Plaintiff is taking issue with upon his return to Fiji once his work permit expires.

vi)	IfMrUgendraSen returns to Fiji tomorrow so as to speak even if it be for holiday he would be legally entitled to reside in the house in issue.

vii)	That I admit paragraph 12 of the said Affidavit.

13.	That as to paragraph 13 of the said Affidavit I pray that the Plaintiff’s application be dismissed with costs on an indemnity basis.

(5)	The Plaintifffiled an ‘Affidavit in Rebuttal’ deposing inter alia;(as far as relevant)

Para	4.	In relation to paragraph 6 I say that there is no beneficiary of the 
Estate known as Ugendra Sen.  The beneficiaries of the Estate under the Will of ArunSen are the following people.

	a)	SurendraSen
	b)	RandhirSen
	c) 	YugandarSen

5.	There is no mention of UgendraSen in the last Will and Testament of Arun Sen.

6.	In relation to paragraph 6 I say that I am the registered proprietor of the said property in question and the mere fact that the Defendant is an attorney of one of the beneficiaries does not give him any occupational rights over the property.

7.	As to paragraph 7 I again reiterate that I am the legal representative of the Estate and I have not consented or given any authority to allow the defendant to occupy the said Estate property.

8.	In response to paragraph 11 I am not depriving any beneficiary of any equitable right they may have.  This application is only seeking the eviction of the defendant who has not established any right over the property nor has he shown to have any consent from the legal representative of the estate.

9.	In response to paragraph 12, I say that the Defendant is not a beneficiary under the Estate and nor does the Power of Attorney entitled him to any occupational right over the property.

10.	The Defendant has not shown any legal consent to reside on the property from the legal representative of the estate and I am not seeking for any beneficiary to be evicted but rather a trespasser.

(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.

In all applications under Section 169 of the Land Transport Act, the Plaintiff/Applicant must first satisfy the prerequisites of Section 169 and 170, before the burden shifts to the Defendant.

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.
	
	Reference is made to paragraph (3) and (4) of the affidavit in support of the Originating Summons.

Para 	3.	I am the administrator De bonis non with Will of the Estate of Arjun
Sen.  Exhibited hereto and marked with the letter “DRS-1” is a copy of the Letters of administration De Bonis Non.

4.	The Estate is the registered proprietor of Land known as Sigawa and Nakorogicu (part of) containing area of two roots on deposit plan 4171 comprised in Certificate of title number 16304.  Exhibited hereto and marked with the letter “DRS-2” is a certified true copy of the said Title. 

											 (Emphasis added)

	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”.

The certified true copy of CT 16304 (DRS-2) clearly notes that the subject property is registered under the name of ‘ArjunSen’ and that the Plaintiff was registered as the ‘administrator’ on the title on 08th August 2014.
	
	It seems to me perfectly plain that the Plaintiff holds a registered title and could be characterized as the last registered proprietor.  Therefore, I have no hesitation in holding that the Plaintiff falls within the ambit of Section 169 (a) of the Land Transfer Act.

(2)	Let me now move to consider the requirements of Section 170 of the Land Transfer Act.  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 Summons described the land as that “Sigawa” and Nakorogicu” (part of) in the District of bulu, on the Island of VitiLevu containing an area of two roods on Deposit Plan No:- 4171 comprised in Certificate of Titile No:- 16304”.  Thus I am satisfied that the subject land is sufficiently described in the Originating Summons.  The Plaintiff has satisfied the first mandatory requirement of Section 170 of the Land Transfer Act.  The Plaintiff has surmounted the first hurdle.For the sake of completeness, the Originating Summons is reproduced below.

SUMMONS

LET all parties concerned attend before a Master in Chambers at the High Court, Lautoka on the  21st of August 2015  at  8.30 o’clock in the forenoon or so soon thereafter as Counsel can be heard on the hearing of an application by the above named Plaintiff that the Defendant do show cause why he should not give up vacant possession to the Plaintiff of the premises situated on the land known as “Sigawa” and Nakorogicu” (part of) in the District of Bulu, on the island of VitiLevu containing an area of two roods on deposit Plan no. 4171 comprised in Certificate of Title number 16304 AND FOR THE FOLLOWING ORDERS:-

1.	That the Defendant to give Plaintiff vacant possession.

2.	Costs of this application be paid by the Defendant to the Plaintiff.

The Plaintiff intends to read his affidavit filed herein at the hearing of this application.

DATED  this   21stday of   July, 2015.
(3)	Now comes a most relevant and, as I think,the crucial second mandatory requirement of Section 170 of the Land Transfer Act.

The Originating Summons was returnable on 21st August 2015.  According to the Affidavit of Service filed by the Plaintiff, the Originating Summons was served on the Defendant on 23rd July 2015.

Therefore, the Defendant is summoned to appear before the Court on a date not earlier than “sixteen days” after the Service of Summons.  Therefore, the second mandatory requirement of Section 170 of the Land Transfer Act too has been complied with.  The Plaintiff has surmounted the second hurdle.

(4) 	To sum up; having carefully considered the pleadings, evidence and oral submissions 	placed	before this Court, it is quite possible to say that the Plaintiffhassatisfied the 	threshold criteria in Section 169 and 170 of the Land Transfer Act. The Plaintiff	hasestablished a prima facie right to possession. 

Now the onus is on the Defendant to establish a lawful right or title under which he is entitled to remain in possession.

	In the context of the present case, I am comforted by the rule of law expounded in the following judicial decisions.
	
In the case of VanaAerhartRaihman 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 HedstromLimited –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;

“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]

(5)	What is the Defendant’s reason refusing to deliver vacant possession.  The Defendant’s contention is that;

Para   	 9.	That I admit paragraph 7 of the said Affidavit however further say 
that I have the necessary legal authority to reside in the house and land referred to by the Plaintiff in his said Affidavit by virtue of the written authority and Power of Attorney and I refer to Annexures “A” and “B” herein and thus with respect I ought not to be evicted in the circumstances.

11.	Thatas to paragraph 10 of the said Affidavit with respect I say as follows:

i)	The said UgendraSen being a beneficiary of the said Estate does not need any authority and/or consent from the Plaintiff to occupy the said land and/or house more so when according to Annexure “B” herein he claims the house to be his;

ii)	The said UgendraSen being a beneficiary of the said Estate and having occupied the said house since his birth and is entitled to occupy the said house without any authority from the Plaintiff and cannot be evicted there from;

iii)	As an administrator of the said Estate in which the said UgendraSen is a beneficiary the Plaintiff cannot by law deprive and/or take away the entitlement of UgendraSen to the house in issue as a beneficiary of the said Estate;

iv)	I having the necessary written consent and Power of Attorney from the said UgendraSen and authorized by the Power of Attorney am legally entitled to reside in the said House and land through the necessary authority of MrYogendraSen a beneficiary under the said Estate.

(Reference is made to paragraph nine (9) and (11) eleven of the Defendant’s Affidavit in Opposition).

(6)	The Plaintiff contends that;

Para 	5.1	The Defendant cannot claim a right to possession as against 
the Estate simply because a beneficiary has given him a limited power of attorney and a letter appointing him as a caretaker.

5.2	The beneficiary who purportedly has given such a right to the Defendant has not given any Affidavit evidence.  He has also not intervened in the proceedings to establish his right to give possession to the Defendant.

5.3	The property vests in the Estate and it is only the Administrator of the Estate who can determine the people to take care of the Estate property or to remain in possession.

5.4	There is no evidence that the beneficiary has assigned his equitable right to an undivided share in the Estate property to the Defendant.

5.5	The Defendant will have to show that the beneficiary has a predefined area in the Estate property and over which he has been given a right of possession by the said beneficiary.  All the beneficiary has is an undivided share.  Therefore, the portion of the land possessed by the Defendant belongs to all the other beneficiaries.  It is the responsibility of the Plaintiff to ensure that the property is preserved and no damages are caused to the interest of all the beneficiaries; not just one.

5.6	The Defendant cannot be allowed to remain on the property as there is no evidence that he has agreed to indemnify the Estate for any damages caused.  The beneficiary who the Defendant alleges gave him the right to remain in possession has not given any such indemnity either.

19.	The Plaintiff submits that the power of attorney or the fact that the Defendant is an attorney of a beneficiary does not have any relevance to the issue of whether the Defendant has any right to remain in possession of the said property.

20.	The actual powers given to the Defendant under the Power of Attorney do not allow any dealing with the land.  The power is limited to allow the Defendant to do certain things; for instance, prosecute and/or Defendant court actions on behalf of the principal (i.e. beneficiary).

22.	The Plaintiff submits that this is an incorrect position taken by the Defendant and submits that all legal interests vests in the Plaintiff.  As such, without any form of consent or authority to remain in possession by the Plaintiff the Defendant is trespassing and must be evicted immediately.

(Reference is made to Para 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 19, 20 and 22 of the Plaintiff’s written submissions)

During the course of the argument, Mr.Padarath, Counsel for the Plaintiff, took me through Section 09 of the Succession, Probate and Administration Act.  His contention was that by virtue of Section 09 of the Succession, Probate and Administration Act, real property, upon grant of probate, becomes vested in the personal representative of the deceased.  It was further contended that the legal fee simple in tittle is vested with the Plaintiff and all the beneficiaries obtain an equitable fee simple in tittle.  He concludes by saying that the Plaintiff, viz, Administrator De BonisNon, is the legal owner of the land in question and he is the only person legally able to allow and/or invite any person to take possession of any estate property.

For the sake of completeness, Section 09 of the Succession, Probate and Administration Act is reproduced below in full.

9. Upon the grant of probate or administration, all property of which a deceased person dies possessed, or entitled to, in Fiji shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted, or administrator for all the estate and interest of the deceased therein, in the manner following, that is to say –

(a)	on testacy or on partial intestacy, in the executor or administrator with the will annexed; and

(b)	on intestacy, in the administrator.
Mr.Padarath, drew my attention to a passage at page 519 of New South Wales Supreme Court decision “DKLR holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (1980) NSWLR 510.  The passage is this;

“Where the trustee is the owner of the legal fee simple, the right of the beneficiary, although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law gives him in accordance with the obligation which equity has imposed upon him.  The trustee, in such a case, has at law all the right of the absolute owner, in fee simple, but he is not free to use these rights for his own benefit in the way he could if no trust existed.  Equitable obligation requires him to use them, in some particular way for the benefit of other persons.  In illustrating this famous aphorism that equity had come not to destroy the law, but to fulfill it.  Maitland op cit, at p.17 said, that the cestuique trust was the owner of the land.  It said tat the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestuique trust, there was no conflict here.  This relationship can perhaps, be usefully illustrated by reference to the possession, and the right to possession, of land which is held by a trustee subject to a private trust.  As legal owner, and subject to any disposition of the right such, as would occur upon the granting of a lease, the trustee has in law the right to possession of the land, and unless somebody else is in possession, under him or adversely to him, he also has the legal possession of the land.  He may maintain trespass against anyone who infringes that possession and ejectment against any person who without this consent takes possession.”
					                (Emphasis Added)

I closely read the New South Wales Supreme Court decision.  The case of “DKLR Holding Co. (No. 2) Pty Ltd v Commissioner of Stamp Duties (1980) NSWLR 510 which was cited by Mr. Padarath, though it differed in its facts, from the present case, certainly appears to carry him a good way in his argument.

As against this, I do not forget what was said in argument by Mr. Khan, Counsel for the Defendant.  Mr. Khan’s contention was that the word “absolutely” is written in the Will and as such the beneficiary has a right to possession.

Mr. Padarath responds by pointing to the fact that when a beneficiary occupies a trust property to which he/she has a beneficial interest, he/she does so as a tenant at Will of the trustee.  Moreover, he took me through a passage at p. 520 of the Supreme Court of New South Wales decision, viz, DKLR Holding Co. (No. 2) Pty Ltd v Commissioner of Stamp Duties (1980) NSWLR 510.

The passage is this;
“… when placed in possession by a trustee, at law the beneficiary is merely a tenant at will of the trustee, the tenancy being determinable at law at any time on demand of possession by the trustee.  Gerrard v Tuck (9a)Melling v Leak (14a).As a corollary, the trustee might at law determine the beneficiary’s tenancy and recover the land from him in an action for ejectment, and the beneficiary would have no legal defense.  He would, of course, have an equitable defence which he has long been able to statute, to plead in the action at law.”

The wording of the aforementioned passage is unmistakably clear to me, i.e.,

“As a corollary, the trustee might at law determine the beneficiary’s tenancy and recover the land from him in an action for ejectment, and the beneficiary would have no legal defense.  He would, of course, have an equitable defence which he has long been able to statute, to plead in the action at law.”

What concerns me is whether that equitable defence extends to persons who take possession of an estate property under a Power of Attorney or by a consent letter given by a beneficiary of the estate.

This is a serious issue of law which has an important bearing in determining the rights of the Plaintiff and the Defendant.

I do not think that New South Wales Supreme Court decision, viz, DKLR Holding Co. (No. 2) Pty Ltd v Commissioner of Stamp Duties (1980), determines the present case.  As I understand the decision, the New South Wales Supreme Court is absolutely silent about the extension of equitable defence to persons entitled to exercise a power of appointment in respect of an estate property.

(7)	In this case, the respective rights of the Plaintiff, viz, administrator De BonisNon and YugandarSen, viz, a beneficiary of the estate under the Will of ArunSen are in question.

	In my view, the proceedings in this case involve the following serious issues of law;

(1)	Whether a beneficiary can allow another person to take possession of an estate property?

	If the first question is answered in the affirmative the question arises;

(2)	Whether a beneficiary can allow another person to take possession of an estate property under a Power of Attorney or by a consent letter?

(3)	Whether an equitable defence could be extended to persons who take possession of an estate property under a Power of Attorney or by a consent letter given by a beneficiary of the estate?

In my view, the aforesaid questions have an important bearing in determining the rights of the Plaintiff and Defendant.

The Plaintiff has had recourse to Section 169 of the Land Transport Act.  This provides a summary and expeditious method of obtaining possession and is applicable in most ordinary cases.  It is not however, a method by which legal inferences can be satisfactorily dealt with.  The evidence before me in the Affidavits is too meager to enable me to feel justified indefinitely deciding on this Originating Summons the serious issues of law between the parties.

In this, I am comforted by the decision of the Court of Appeal in;

In “Vallabh Das Premji v. VinodLal and Others, F.C.A Civil Appeal No. 70 of 1974 (unreported)” the Court said:

“In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them 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.  Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Ferrier Watson V. Venkat Swami (Civil Action 29 of 1967 – unreported).  The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure where another, comprehensive and better suited to the determination of controversial matters, is available.”

(Emphasis Added)

In “Jamaludin v Kamru Din” Civil Action No:- 37 of 2014, (unreported) the court held;

“Section 172 allows the Judge to make other orders and impose any terms but this can only be done if cause is shown by the defendant.  For example the Judge can dismiss the summons and order that the application be instituted by a writ action where evidence is required to be adduced.  In the past the High Court has held that if the proceedings involve complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature but will dismiss the summons without prejudice to the plaintiff’s right to institute proceedings in another manner or by writ action (see Caldwell v Mongston (1907) 3 F.L.R. 58 and Pirrier Watson v Venkat Swami (Civil Action 9 of 1967 – unreported).”
					
									(Emphasis Added)

Applying those principles to the present case and carrying those principles to their logical conclusion, I dismiss the Originating Summons with costs, but without prejudice to the Plaintiff’s right to establish his claim to the land by any other process than the summary one to which he has had recourse.

(E)	FINAL ORDERS

(1)	The Plaintiff’s Originating Summons for vacant possession under Section 169 of the Land Transfer Act is dismissed without prejudice to the Plaintiff’s right to institute proceedings in another manner or by Writ action

(2)	The Plaintiff is to pay costs of $750.00 (summarily assessed) to the Defendant which is to be paid within 14 days hereof.

……………………..
Jude Nanayakkara
Master.

At Lautoka
02nd September 2016