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Attorney-General of Fiji v Navakamocea [2022] FJHC 178; HBC120.2021 (7 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 120 of 2021


IN THE MATTER of an Application for Vacant Possession under
Section 169 of the Land Transfer Act 1971.


BETWEEN:


ATTORNEY-GENERAL OF FIJI for and on behalf of the MINISTRY OF ECONOMY,
having its office at Levels 4-8 Suvavou House, Victoria Parade, Suva.


FIRST PLAINTIFF


DIRECTOR OF LANDS having its office at Level 1, iTaukei Trust Fund Board Complex, Nasese.


SECOND PLAINTIFF


AND:


JONE NAVAKAMOCEA of Government Quarters 197 Nasilai Road, Suva, occupation unknown.


DEFENDANT


BEFORE:
Hon. Justice Vishwa Datt Sharma


COUNSELS:
Ms Ali N. with Mr. Kant S. for the Plaintiffs
No Appearance for the Defendant


Date of Ruling:
Thursday 7th April 2022 @ 9.30am


DECISION
[Vacant Possession pursuant to Section 169 of the Land Transfer Act 1971
Orders 7 and 28 of the High Court Rules 1988 and
the Inherent Jurisdiction of this Honourable Court.]


INTRODUCTION

  1. This is the Plaintiffs’ application seeking for the following Orders:
  2. This application relies on the Affidavit in Support of Shiri Gounder filed herewith and made pursuant to section 169 of the Land Transfer Act 1971, Orders 7 and 28 of the High Court Rules 1988 and the inherent jurisdiction of this honourable court.
  3. The Defendant filed an Affidavit in Reply stating that:-
  4. The First and Second Plaintiffs furnished Court with written submissions. The Defendant neither appeared at the hearing nor did he furnish any submissions to Court.
  5. The Application seeking for an order for the immediate vacant possession of the property Government Quarters 197 located at Nasilai Road, Suva was heard unopposed although the Court has taken into consideration the Defendant’s Reply Affidavit filed herein.

BACKGROUND

  1. On 1 January 2016, the then Ministry of Finance, now called the Ministry of Economy, let out a Government quarters situated at 197 Nasilai Road, Suva to the Defendant by way of a tenancy agreement with effect from 1 January 2016. The tenancy agreement was valid for a period of 1 year, with a month rental of $1,000 that was payable on the first day of each month.
  2. The Government Quarters let to the Defendant is situated on state land without title, formerly described as Crown Grant 991C Balance of S77 that is under the control of the Director of Lands for and on behalf of the State.
  3. Following the expiry of the term of the tenancy agreement on 1 January 2017, the Ministry let the Defendant continue to occupy the Government Quarters under a monthly tenancy arrangement based on the same terms and conditions as the Tenancy Agreement.
  4. Under the monthly tenancy arrangement, the Defendant was obliged to pay the monthly rental of $1,000 in accordance with clause 3(b) of the Tenancy Agreement, that was payable to the Ministry.
  5. However, since 1 July 2016, in spite of being in continued occupation of the Government Quarters, the Defendant has breached the tenancy agreement by defaulting in the payment of the monthly rental.
  6. As a Government asset, the Government Quarters is administered by the Office Accommodation Unit of the Ministry. This responsibility was assigned to the Ministry through the Minister of Economy by virtue of the Ministerial Assignment, Legal Notice No. 102 of 2015 that was published in the Government Gazette on 29 December 2015 which continues to this day by virtue of Legal Notice No. 88 of 2018.
  7. As a result of the breach of the Tenancy Agreement and the continued occupation of the Government Quarters by the Defendant, the Ministry issued the following notices to the Defendant:-
  8. Despite the issuance of the abovementioned notices for payment of rent and notices to vacate by the Ministry, the Defendant continued to occupy the Government Quarters and refused to pay the outstanding rental arrears.
  9. As a result, the Ministry issued its final demand notice dated 9 March 201 which provided notice:-
    1. of termination of the Tenancy Agreement;
    2. for the Defendant to vacate the Government Quarters by 8 April 2021 (within 30 days); and
    1. the Defendant to clear outstanding rental arrears in the sum of $57,000.00 for the period 1 July 2016 to 1 March 2021.
  10. The Defendant still failed to clear the rental arrears in the sum of $57,000.00 and to vacate the Government Quarters within the 30-day notice period of the Final Demand Notice.
  11. Subsequent to the filing of this Application, an action has been instituted in the Suva High Court, for the recovery of rental arrears. This application vide Civil Action No. 144 of 2021 is on foot and is yet to be determined by the Suva High Court.
  12. In its Affidavit in Reply, the Defendant acknowledges that:
    1. He occupies the Government Quarters under the tenancy agreement;
    2. That he has defaulted in the payment of the monthly rental in the sum of $57,000.00 and has failed to make any arrangements with the Ministry to clear the rental arrears;
    1. That he has been served with the Final Demand Notice requiring him to clear the rental arrears and to vacate the Government Quarters; and
    1. That his continued occupation of the Government Quarters constitutes trespass to State property.
  13. The Defendant is not disputing the $57,000.00 rental arrears he owes to the Ministry.
  14. The Defendant has however filed a counterclaim for compensation in the sum of $240,000.00 for loss of salary due to the military coup of 2006 or if the Government is unable to compensate him, then he be allowed to continue to occupy the Government Quarters for 20 years.

PRACTICE and PROCEDURE

  1. The Plaintiffs have filed the Application pursuant to Section 169 of the Land Transfer Act 1971.
  2. “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. A Section 169 application is a summary procedure for possession which enable various categories of persons to call upon a person in possession of a property to show cause why he or she should not give up possession. One such category, specified in paragraph (a) of the section is ‘the last registered proprietor of the land’ (The Second Plaintiff, Director of Lands falls under this category).
  2. Section 4(1) of the State Lands Act 1945 states as follows:-

‘Where the freehold estate of any person in land in respect of which a state grant or iTaukei grant has been issued is acquired by the State, the title to such land shall be taken in the name of the Director of Lands of Fiji for and on behalf of the State.’

  1. The Government Quarters 197 is situated on the State land without Title formerly described as Crown Grant 991C Balance of S77 (Pt. of) under the control of the Second Plaintiff for and on behalf of the First Plaintiff (State) and under the administration of the Ministry of Economy.
  2. Pursuant to Section 172 of the Act, the onus is on the Defendant to show cause why he is refusing to give up possession to the Plaintiffs and why an order for possession should not be made against the Defendant.
  3. The Second Plaintiff is the proper party as the registered proprietor in this instance as can be ascertained from the Crown Grant 991C Balance of S77 (Pt. of) by a transfer Dealing No. 59625 and has since remained as state land without title filed as annexure “SG1” within the Affidavit in Support of Shiri Gounder. The term “proprietor” is defined as the registered proprietor of land, or of any estate or interest therein in the Land Transfer Act. Hence the term “proprietor” falls within the ambit of the provisions of Section 169 application.

DETERMINATION

  1. There are two (2) issues for the Court’s determination:-

Substantive Application

(a) That the Defendant give up immediate vacant possession of Government Quarters 197 located at Nasilai Road, Suva which is situated on State land without Title, formerly described as Crown Grant 991C Balance of S 77 (Pt. of) under the control of the Second Plaintiff for and on behalf of the State, and under the administration of the Ministry of Economy.

Counter-claim

(b) Whether the Defendant ought to be compensated in the sum of $240,000.00 for loss of salary due to the military coup of 2006 or if the Government is unable to compensate him, then he be allowed to continue to occupy the Government Quarters for 20 years.
  1. The First question for this court to determine is whether the Plaintiff has satisfied to this Court the pre-requisites of section 169 and 170 of the Land Transfer Act.

If, the answer to the above question is in affirmative, then the burden shifts to the Defendants where they are required to show cause in terms of their right to remain on the Plaintiff’s property and whether the Defendants have any arguable case before this Court, in terms of s.172 of the Land Transfer Act?

  1. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act 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. In this case, the Plaintiff must first comply with the requirements of section 169 of the Land Transfer Act, which are stated hereunder as follows:

(Underline for emphasis)

  1. In the instant case, the first and second limbs of s169 applies. The Plaintiff’s action falls under Section 169 (a) and (c) and the Crown Grant 991C Balance of S77 (Pt. of) by a transfer Dealing No. 59625 confirms that the Plaintiff is the proper party and the last registered proprietor of the same.
  2. The Plaintiffs have the locus to bring this proceedings to Court seeking an order for an immediate vacant possession of Government Quarters No. 197 located at Nasilai Road, Suva by the Defendant.
  3. Further, the Defendant has not disputed that the Plaintiffs are the current proper parties and registered proprietors of the property and there cannot be any dispute that the Plaintiffs are the proper parties and registered proprietors of Crown Grant 991C Balance of S77 (Pt. of) by a transfer Dealing No. 59625. Therefore, this action has been rightfully commenced by the Plaintiffs against the Defendant.
  4. After the Plaintiffs have established the first and second limb test of section 169, then the Defendant bears the onus of showing cause as to why immediate vacant possession should not be granted by the Defendant to the Plaintiffs.
  5. Pursuant to section 172 of the Land Transfer Act. 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).
  6. 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).
  7. The Defendant does not dispute the fact that the Plaintiffs are the proper parties and the current registered proprietor of the said property herein.

COUNTERCLAIM

  1. The Defendant’s contention is “whether the Defendant has a right to continue occupation of the said Government Quarters No. 197 located at Nasilai Road, Suva situated on Crown Grant 991C Balance of S77 (Pt. of) under the control of the Second Plaintiff for and on behalf of the State and under the administration of the Ministry of Economy?”
  2. The basis on which the contention of the Defendant is based on is his counterclaim seeking for compensation for four years from 2008 to 2011 in the sum of $240,000. However, in absence of the compensation, then the Defendant seeks the leave and approval of the Court to continue to live in the quarters equivalent to years of rental cost of his compensation of $240,000 which equates to 20 years.
  3. The Defendant has acknowledged the contents of paragraphs 1 to 16 inclusive of the Plaintiff’s Affidavit in Support with the exception to paragraph 17 seeking for an order for immediate vacant possession of the Government Quarters 197 located at Nasilai Road, Suva on Crown Grant 991C Balance of S77 (Pt. of) by the Defendant.
  4. The Ministry of Economy had issued at least 3 notices to the Defendant for non-payment of rental arrears together with notices to vacate government quarters in occupation:-

(i) 14th March 2019 for $34,000

(ii) 23rd July 2019 for $34000

(iii) 30th January 2020 for $47,000.

  1. Despite above notices served on to him, the Defendant failed to clear the rental arrears and continued in occupation of the government quarters to the current.
  2. The Ministry of Economy did not have any alternative but proceeded to issue its final notice dated 9th March 2021:-
  3. The Defendant did not adhere to the various notices issued to him rather still continued its occupation of the government quarters, refused and failed to deliver up vacant possession and therefore continued to accumulate the rental arrears.
  4. The Defendant should have known better being a Senior Civil Servant then that he just cannot default and accumulate rental payments in breach of the Terms of the Agreement entered into between the parties to the proceedings nor can the Defendant justify and brush aside the various notices issued to him for recovery of rental arrears and vacation of government quarters 197 in occupation by him and dictate terms for the payment of substantial compensation by the Plaintiff instead.
  5. As per the Defendant’s counterclaim for compensation of $240,000, the Defendant has failed to obtain Leave of the Court first in terms of the provisions of Order 77 Rule 7(2) of the High Court Rules 1988 before proceeding to claim for compensation within his counterclaim.
  6. Therefore, the counterclaim sought in the proceedings by the Defendant tantamounts to be fatal and hence this Court has no alternative but to accordingly dismiss the Defendant’s counterclaim.
  7. There are various cases whereby Courts have determined cases involving government quarters and I will make references to at least to the following cases:-
  8. The Plaintiffs have satisfied the threshold requirement to the provisions of section 169 and 170 of the Land Transfer Act 131 accordingly.
  9. The Defendant 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 131.
  10. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown.
  11. For the aforesaid rational, I find that the Government Quarters 197 located at Nasilai Road, Suva which is situated on State land without Title, formerly described as Crown Grant 991C Balance of S 77 (Pt. of) via transfer Dealing No. 59625 transferred and registered in the name of the Director of Lands (Second Plaintiff) and is a State land. Further, the Government Quarters 197 on the subject land is currently controlled and administered by the Ministry of Economy (First Plaintiff). Thus the Plaintiffs being the proper parties and the proprietors of the said land in question on which Government Quarters 197 exists.
  12. It is my decision that the Defendant is hereby ordered to give up vacant possession of the Government Quarters 197 located at Nasilai Road, Suva situated on the State land described as Crown Grant 991C Balance of S 77 (Pt. of) to the Plaintiffs within one month’s timeframe on or before 7th April 2022.

COSTS

  1. The matter proceeded to hearing in absence of the Defendant and the Plaintiff had filed written submissions.
  2. It is only fair that the Defendant pay the Plaintiffs a sum of $650 as summarily costs accordingly.
  3. Following are the final orders of this Court.

FINAL ORDERS

  1. The Defendant to give vacant possession of the said Government Quarters 197 located at Nasilai Road, Suva which is situated on State land without Title, formerly described as Crown Grant 991C Balance of S 77 (Pt. of) under the control of the Director of Lands (Second Plaintiff) and administered by the Ministry of Economy (First Plaintiff) for and on behalf of the State to the Plaintiffs accordingly.
  2. The Defendant to deliver vacant possession to the Plaintiffs in one (1) months’ time on or before the 7th May 2022 @ 4pm.
  1. Execution is hereby suspended till the 7th May 2022 @ 4pm.
  1. The Defendant to pay the Plaintiffs a sum of $650 as summarily assessed costs.

Dated at Suva this 7th day of April 2022.


............................................................

VISHWA DATT SHARMA

JUDGE


cc: Attorney-General’s Chambers, Level 4 Suvavou House, Victoria Parade, Suva.
Jone Navakamocea, Government Quarters 197, Nasilai Road, Suva.


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