IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 273 of 2019

BETWEEN: JOLAME G. QORO for and on behalf of himself and on behalf
of members of Tokatoka Vunatawa (Mataqali Manu) that have fully authorised him to bring this action on their behalf, of Sabeto, self-employed businessman.

Plaintiff

AND: ILISONI GALALA of Naboutini Settlement, Sabeto, Nadi.
				
Defendant

Before:	 Master U.L. Mohamed Azhar

Counsels: Mr. N. Nawaikula for the plaintiff
The defendant in person

Date of Judgment: 17.12.2021

JUDGMENT

01.	The plaintiff, being Turaga ni Mataqali and authorized by vast majority of member of Mataqali Manu, summoned the defendant pursuant to Order 113 of the High Court Rules by the Originating Summons issued on 21.10.2019. The summons is supported by an affidavit sworn by the plaintiff and alleges that, the defendant is a squatter who has been occupying plaintiff’s Tokatoka’s native land without any authority and colour of right. Therefore, the summons seeks the following orders that: 
 
1.	AN ORDER that, the plaintiff do recover possession of ALL THAT PIECE OF LAND occupied by the defendant and owned by the plaintiff’s Tokatoka and known as Register of Native Land (RNL) Vol. 3 Folio 355 being Lot 10 on Plan No. H/13.4;

2.	ANY such further or other orders as the Honourable Court may deem just and equitable; and

3.	AN ORDER that the cost of this application be paid by the defendant.

02.	The plaintiff has annexed 8 documents with his affidavit marking them as “JGQ 1” to “JGQ 8” respectively.  The defendant applied for legal aid and was unsuccessful. Therefore, he appeared in person and filed his affidavit in opposition of the summons. The defendant just attached three documents with his affidavit without property pleading and marking them. Two of them are written in iTaukei language and other is search document at Energy Fiji Limited. This affidavit was followed by plaintiff’s affidavit in reply. At hearing of the summons, the counsel for the plaintiff made oral submission and also tendered his written submission. The defendant on the other hand made oral submission based on his affidavit.

03.	The Order 113 rule 1, under which the current application was filed by the plaintiff, reads;
"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order".

04.	The above rule is based on the English rules of the High Court. The English courts did not have jurisdiction to summarily order for possession of any property, before introduction of this rule into the High Court Rules. This position was explained by the English Court of Appeal in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch. D 420 in which the court held that, the court had no power to make an order for possession and give leave to issue a writ of possession on an interlocutory motion before final judgment had been obtained.  The necessity then arose for a speedy and prompt procedure to summarily obtain a final order for possession where not every wrongful occupier can reasonably be identified (see: The Supreme Court Practice 1988 at paragraph 113/1-8/1 at page 1470). This resulted in introduction of Order 113 to the High Court Rules. Kennedy LJ explained this background in Dutton v Manchester Airport [1999] All ER 675 at 679 as follows: 
"Order 113 was introduced in 1970 (by the Rules of the Supreme Court (Amendment No 2) 1970, SI 1970/944), shortly after the decision of this court in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right--that is to say, against trespassers. The order does not extend or restrict the jurisdiction of the court. In University of Essex v Djemal [1980] 2 All ER 742 at 744, [1980] 1 WLR 1301 at 1304 Buckley LJ explained the position in these terms:
'I think the order is in fact an order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession.'
05.	Accordingly, this Order does not provide a new remedy, rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers who have neither license nor consent either from the current owner or his predecessor in title.  In proceedings under this Order, the only claim that can be made in the Originating Summons is recovery of possession of land. No other cause of action can be joined with such a claim in proceeding under this Order, and no other relief or remedy can be claimed in such proceedings. The Order is narrowly confined to the particular remedy described in rule 1. The Supreme Court Practice 1988 (White Book) states at paragraph 113/1-8/1 at page 1470 that:

In proceedings under this Order, the only claim that can be made in the Originating Summons is for the recovery of possession of land; notwithstanding O.15 r.1, no other cause of action can be joined with such a claim in proceedings under this Order, and no other relief or remedy can be claimed in such proceedings, whether for payment of money, such as rent, mesne profits, damages for use and occupation or other claim for damages or for an injunction or declaration or otherwise. The Order is narrowly confined to the particular remedy described in r.1.

06.	The Supreme Court Practice 1988 (White Book) further states at paragraph 113/1-8/1 at page 1470 that:

For the particular circumstances and remedy described in r.1, this Order provides a somewhat exceptional procedure, which is an amalgam of other procedures, e.g., procedure by exparte originating summons, default procedures and the procedure for summary judgment under  O. 14. Its machinery is summary, simple and speedy, i.e. it is intended to operate without a plenary trial involving the oral examination of witnesses and with the minimum of delay, expense and technicality. Where none of the wrongful occupiers can reasonably be identified the proceedings take on the character of an action in rem, since the action would relate to the recovery of the res without there being any other party but the plaintiff. On the other hand, like the default and summary procedures under O.13 and O.14, this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto.

07.	The above decisions and the commentaries in the White Book suggest that, this is the procedure to recover the possession of a land occupied by a trespasser or a squatter. It is simple and speedy machinery that is intended to operate with minimum delay, expense and technicality as opposed to plenary trial involving oral examination of witnesses. Where none of the wrongful occupiers can reasonably be identified the proceedings take on the character of an action in rem, since the action would relate to the recovery of the res without there being any other party but the plaintiff. Kennedy LJ., in Dutton v Manchester Airport (supra) said at page 689 that:

The wording of Order 113 and the relevant facts can be found in the judgment of Chadwick LJ. In Wiltshire C.C. v Frazer (1983) PCR 69 Stephenson LJ said at page 76 that for a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. Stephenson LJ went on at page 77 to consider what the words of the rule require. They require: 

“(1) of the plaintiff that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant;
 
(2) that the defendant, whom he seeks to evict from his land (the land) should be persons who have entered into or have remained in occupation of it without his licence or consent (or that any predecessor in title of his)”. 

08.	In view of that, it is the duty of a plaintiff, who invokes the jurisdiction of this court under this Order, to firstly satisfy the court that, it is virtually a clear case where there is no doubt as to his or her claim to recover the possession of the land. In that process, he/she must be able to show to the court his or her right to claim the possession of the land and then to satisfy that the person or persons (not being a tenant or tenants holding over after the termination of the tenancy) entered into the land or remained in occupation without his or her licence or consent or that of any predecessor in title. Once a plaintiff satisfies these two factors, he or she shall be entitled for an order against the defendant or the occupier. Then, it is incumbent on a defendant or the person occupies that property, if he or she wishes to remain in possession, to satisfy the court that he or she had consent either from the plaintiff or his or her predecessor in title or he or she has title either equal or superior to that of the plaintiff. If the defendant can show such consent or such title, then the application of the plaintiff ought to be dismissed. 

09.	The plaintiff annexed a true copy of authority given to him by the majority members of Tokatoka Vunatawa, marking as “JGQ 2” to prove his status to bring this representative action against the defendant. According to that document, 77.5% of the members consented for this action. Furthermore, the supporting affidavit clearly shows that, all the members of Tokatoka Vunatawa have common interest and common grievance as the defendant is illegally occupying the land belongs to their Tokatoka. Therefore, they seek ejectment of defendant, which is beneficial to all of them. Accordingly, this action meets all three requirements of a representative action which are (i) common interest; (ii) common grievance; and (iii) the relief in its nature would be beneficial to all. 

10.	The plaintiff further stated in his supporting affidavit that, members of Tokatoka Vunatawa of Mataqali Manu are the native owners of the subject land. In support of his averment, the plaintiff annexed a true copy of Register of Native Lands (RNL) Vol. 3, Folio 355 marking as “JGQ 3”. The annexure “JGQ3” is evident that, Tokatoka Vunatawa of Mataqali Manu is recorded as the proprietary unit of the subject land in this matter. The section 2 of the iTaukei Lands Act 1905 (formally known as Native Lands Act 1905) provides that, "iTaukei owners" means the Mataqali or other division or subdivision of the natives having the customary right to occupy and use any native lands. Consequently, Tokatoka Vunatawa of Mataqali Manu is the native owner of the subject land as claimed by the plaintiff in his supporting affidavit. The Tokatoka Vunatawa of Mataqali Manu has customary rights to occupy and use the subject land in this case. The defendant too did not dispute the fact that, the subject land belongs to plaintiff’s Tokatoka Vunatawa of Mataqali Manu. Admittedly, the defendant does not belong to Tokatoka Vunatawa of Mataqali Manu and therefore, he has no right whatsoever to occupy the subject land. The plaintiff not only proved his locus to bring this action, but also did prove that, the Tokatoka Vunatawa of Mataqali Manu has customary rights to occupy and use the subject land in this matter and the defendant does not have any right whatsoever over the subject land. As a result, the plaintiff is entitled for an order he sought in his summons.

11.	Since the defendant opposed the summons, the onus now shifts to the defendant to satisfy the court that he has consent either from the plaintiff or his or her predecessor in title, as per the provisions of Order 113 of the High Court Rules. The defendant claims that, Tui Sabeto gave him consent in 1980 to occupy the subject land. The question is whether a Tui can give consent to a non-member of Tokatoka to occupy the land belongs to Tokatoka? It was settled by the court in Patel v Prasad (1976) 22 FLR 210 that individual members of a Mataqali cannot establish any rights in respect of Mataqali land. The court in that case compared the individual member of a Mataqali to a shareholder and even a director of a company. The court said at page 214 that: 
Mr Shankar argued that Meli's case [Meli Kaliavu & Ors. v Native Land Trust Board (1956) 5 FLR 17] established that a mataqali is a collective unit. With respect I do not think that it establishes anything of the sort. To my mind it makes clear that individual members of a mataqali cannot establish any rights in respect of mataqali land. Nor can a shareholder in a company or even a director of a company establish any right to company land. Still less, of course, can a member of a club or other unincorporated body establish a right to club property. (Emphasis added).
12.	Accordingly, an individual member of a Mataqali cannot establish any right over the land belongs to his Mataqali. As a member he benefits from the land belongs to Mataqali. Fortiori, neither a member of a Mataqali nor a Tui, who cannot individually establish any right over Mataqali land, can give consent to another person occupy such land, unless it is dealt with by iTaukei Land Trust Board which is entrusted to secure, protect and manage iTaukei land ownership rights and facilitate commercial transactions relating to iTaukei land use. As a result, the consent claimed to be given by Tui Sabeto to the defendant cannot give any right to him to occupy the subject land in this matter. The defendant can only remain in possession of the subject land if he gets proper lease facilitated by the iTaukei Land Trust Board for the area he has been occupying now. Accordingly, the defence taken by the defendant fails in this matter and he ought to be evicted from the subject land with immediate effect.  

13.	Even if I am wrong in holding that, Tui cannot give consent to another person, the defendant still has to vacate the subject property as the such consent had been withdrawn by members of Mataqai when they requested him to vacate the subject land. The reason being that,  the Order 113 of the High Court Rules not only applies where the occupier has entered into occupation without licence or consent, but also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, Pennycuick V-C in Bristol Corporation v. Persons Unknown [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593 held at page 595 that:

Looking at the words of that rule, it seems to me to be clear that the order covers two distinct states of fact. The first is that of some person who has entered into occupation of the land without the licence or consent of the person entitled to possession or any predecessor in title of his, and secondly that of the person who has entered into occupation of the land with a licence form the person entitled to possession of the land or any predecessor in title of his but who remains in such occupation without the licence or consent of the person entitled to possession or any predecessor in title. That that is the true construction appears to be perfectly clear from the use of the word ‘or’ and if the rule did not cover the second state of affairs which I have mentioned, that is to say of entry with licence and remaining in occupation without licence, then the words ‘or remained’ would, so far as I could see, have no significant meaning at all. Obviously there never could be proceedings against someone who had entered, but did not remain in occupation of the land.

14.	It must be noted that, Pennycuick V-C in that Bristol Corporation v. Persons Unknown (supra) expressed in obiter that, the court has discretion whether to permit this summery procedure to be used in cases where there had been a licence to occupy. However, the Court of Appeal in Great London Council v Jenkins [1975] 1 W.L.R 155; [1975] 1 All E.R 354, unanimously disapproved that obiter and held that, the court has no discretion to refuse to allow the summary procedure to be used, even where the respondent had been in occupation under the licence for a substantial period and the court is bound to grant an order for possession in such circumstances. Cairns LJ., held at page 359 that:

 With respect to Pennycuick V-C, that opinion, expressed obiter, appears to me one which it would be difficult to sustain. It may well be that a local authority or other responsible landlord would be reluctant to use this summary procedure against a former licensee with whom good relations have been maintained over a long period. But if the procedure is adopted, I do not consider that there is any discretion for the court to say: ‘I shall not make an order for possession, because I do not think this is the sort of defendant against whom the procedure should be used.’

15.	It is clear beyond peradventure that, in a summons made under this Order 113 the courts must be satisfied that there is no reasonable doubt on, (a) the claim of the plaintiff and (b) on the wrongful occupation of the defendant. The court has no discretion to refuse to allow the summary procedure to be used, even where the respondent had been in occupation under the licence for a substantial period and the licence has been subsequently terminated. 

16.	The court in Department of the Environment v. James and Others [1972] 3 All E.R 629 held that, if a plaintiff, in an action for ejectment, proves his legal title in possession, he is, as of right, entitled to an immediate judgment for possession. The common law courts under common law rules have no discretion delay him. The plaintiff too in this case, as of right, is entitled to an immediate judgment for possession of the subject property.

17.	Accordingly, I make following final orders:

a.	The defendant and all other occupants of the subject property are ordered to immediately deliver to the plaintiff the vacant possession of the subject property described in the originating summons, and

b.	The defendant should pay a summarily assessed costs of $ 1,000 to the plaintiff within a month from today. 

U. L. Mohamed Azhar
Master of the High Court

At Lautoka
17.12.2021