High Court of Fiji

05. Generally, the duty on defendants in this application, as per the above authority is, not to produce any final or incontestable proof of their right to remain in the properties, but to adduce some tangible evidence establishing a right or supporting an arguable case for their right to remain in possession of the properties in dispute. Black’s Law Dictionary defines “tangible evidence” as “physical evidence that is either real or demonstrative” (10^th Edition, page 678). Therefore, the duty of the defendants in this case too is to produce some real or demonstrative physical evidence demonstrating their right to remain in possession of the subject property. However, this duty will not be fulfilled mere assertion in the affidavit.

06. Furthermore, the Fiji Court of Appeal in Ali v Jalil [1982] FJLawRp 9; [1982] 28 FLR 31 (2 April 1982) explained the nature of the orders a court may make in terms of the phrase used in section 172 of the Land Transfer Act, which says “he (judge) may make any order and impose any terms he may think fit”. The Court held that:

“..but the section continues that if the person summoned does show cause the judge shalmidismiss 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 d to fy the judge, and, and inde indeed are often applied when the judge decides that an open court hearing is required”. (Emphasis added).

07. The abovementioned two decisions require the court to decide whether the defendants adduced any real or demonstrative physical evidence establishing a right or supporting an arguable fase for such a right, or even they failed to adduce such evidence whether an open court hearing is required or not, given the circumstances of this case.

08. The defendants stated iir affidavit that, the plai plaintiff is known to them and they were brought by him to the subject property to look after his father who was a stroke person, on the promise that, the plaintiff would pay all expenses incurred in looking after him. Later, they started to pay the rent in sum of $ 100 per month after the plaintiff’s father was moved by his sister, to her house. The defendants further stated that, they were allowed to plant vegetables and maintain the subject property. The plaintiff did not pay their expenses for looking after his father. The total amount claimed by the defendants is sum of $ 163,350.00 for 3264 days at the rate of $ 50 a day. The defendants claim that, they would vacate the subject property only if the total amount is paid by the plaintiff. The question is whether this claim can give the defendants the right to remain in possession of the subject property in this matter.

09. As this court said in other cases, it is the Torrens system of registration that resulted in the guarantee and protection for the last registered proprietor. The protection of indefeasible title from illegal occupation is the high priority of this registration system. This protection is not only against any illegal occupant of a particular land or property, but also is extended against any person who otherwise entered any property by a legal authority, but continued to occupy that property even after cessation of such authority or permission. That is why the section 169 (b) allows the lessor to bring the summons for eviction even the rental for a month is due. This shows that even a tenant, who legally entered any property, becomes an illegal occupant if the rental falls in arrears. Accordingly, the only defence or right which can suggest challenging the indefeasibility of title of any registered proprietor could be a valid defence or can give a right to remain in a property in proceedings under section 169 of the Land Transfer Act. The issues relating to tenancy or other transactions are not the valid defence in proceedings under section 169 of the Land Transfer Act, nor they can give any right to anyone to remain in possession of any property challenging the indefeasible title of a registered proprietor.

10. The claim of the defendants for the amount for looking after the father of the plaintiff is a transaction and or dealing that has nothing to do with indefeasibility of plaintiff’s title. It can only give a cause of action for money recovery if they had intended to create any legal obligation on their alleged agreement to look after the father of the plaintiff. It cannot in any circumstance give any right to remain in possession of the subject property. The position taken by the defendants therefore neither demonstrates any tangible evidence establishing a right&or supr supporting an arguable case for such a right, nor does it warrant open court hearing in this matter.
    
11. Accordingly, the, the issues in this matter are straightforward and there are no complicated issues of facts. The plaintiff’s proprietorship is undisputed and the there is no defence at all for the defendants to possess the subject property. Gould V.P. delivering the unanimous judgment of Fiji Court of Appeal in Ram Narayan v Moti Ram (Civ. App. No. 16/83 FCA) stated:
    

".... 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".

12. It follows that, the plaintiff is entitled for immediate vacant possession in this case; the defendants ought to be evicted from the property; and should be ordered to immediately deliver the vacant possession of the subject property to the plaintiff. Further the plaintiff is entitled to reasonable cost for this application.
    
13. In result, I make the following orders:
    
    1. The defendants is ordered to immediately deliver the vacant possession of the subject property described in the summons to the plaintiff, and
       
    2. The defendants are further ordered to pay a summarily assessed costs in sum of $ 1000 to the plaintiff within a month from today.
       

U.L.Mohamed Azhar

Master of the High Court

At Lautoka
07.12.2021