|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Case No. HBC 224 of 2020
BETWEEN: NASINU LAND PURCHANSE AND HOUSING CO-OPERATIVE SOCIETY LIMITED a co-operative society duly incorporated pursuant to the Co-operative Societies Ordinance Cap 219 and having its principal place of business at 68 Suva Street, Suva
PLAINTIFF
A N D: ILIMO TURAGACATI of Certificate of Title No. 3213 being Lot 1 of Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
FIRST DEFENDANT
A N D: RAVAELE NAIVOSA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
SECOND DEFENDANT
A N D: ESETA [Deceased] of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
THIRD DEFENDANT
A N D: TAUFA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji lslands in Stage 11 in the area known as Nadawa.
FOURTH DEFENDANT
A N D: SITI of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
FIFTH DEFENDANT
A N D: ALISI of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
SIXTH DEFENDANT
A N D: MERE VIVITA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
SEVENTH DEFENDANT
A N D: BOLE AISAKE of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as a Nadawa.
EIGHTH DEFENDANT
A N D: NAVITALAI [Deceased] of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
NINTH DEFENDANT
A N D: LUSIA VESIKARA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
TENTH DEFENDANT
A N D: TULIA RUVENI of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
ELEVENTH DEFENDANT
A N D: NEMANI of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
TWELFTH DEFENDANT
A N D: MELI TAUCILAGI of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
THIRTEENTH DEFENDANT
A N D: SAIRUSI QIOLEVU of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
FOURTEENTH DEFENDANT
A N D: JOSEVA VESIKARA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
FIFTEENTH DEFENDANT
A N D: JONE of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji lslands in Stage 11 in the area known as Nadawa.
SIXTEENTH DEFENDANT
A N D: TEVITA KORORAU of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
SEVENTEENTH DEFENDANT
A N D: INISE NAITELEKANA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
EIGHTEENTH DEFENDANT
A N D: JOLAME LIGAITUKANA of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
NINETEENTH DEFENDANT
A N D: SALACIELI MOLIDEGEI of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
TWENTIETH DEFENDANT
A N D: ROMANU of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
TWENTY FIRST DEFENDANT
A N D: THE OCCUPIERS of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 in the District of Naitasiri in the Island of Viti Levu in the Fiji Islands in Stage 11 in the area known as Nadawa.
DEFENDANTS
Appearance : Ms. Shoma Devan with Mr. Ashneil Nandan for the Plaintiff
The 3rd and 9th Defendants are deceased
The 11th, 12th, 16th, 17th , 19th and 21st defendants are absent and unrepresented.
All the others defendants are present but appeared in person.
Date of Hearing : Friday, 13th May, 2022 at 9:00am
Date of Decision : Friday, 24th June, 2022 at 9:00am
DECISION
(A) Introduction
[1] The matter before me stems from the plaintiff’s Originating Summons, dated 29th July 2020 filed pursuant to Order 113 of the High Court Rules 1988 and the inherent jurisdictions of the court seeking the grant of the following orders:
[2] The Originating Summons is supported by an affidavit of ‘Satya Narayan’, the Chief Executive Officer of the Plaintiff, sworn on 29th July 2020. The 01st, 12th, 16th, 17th, 19th, 20th and 21st defendants did not file an affidavit in opposition. The 2nd, 4th, 5th, 6th, 7th, 8th, 10th, 11th, 13th, 14th, 15th and 18th defendants filed an affidavit in opposition followed by an affidavit in reply there to. I note with concern that there is no formal application filed by the plaintiff to substitute the representatives of the deceased third and ninth defendant.
[3] The plaintiff and the defendants were heard on the summons. They made oral submissions to court. In addition to oral submissions counsel for the plaintiff 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] The Order 113, rule (1) of the High Court Rules is in these terms:
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.
[3] Stephenson LJ in “Wiltshire CC v Frazer” [1] went on 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 the 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 of any predecessor in title of this].
[4] Justice Pathik in Baiju v Kumar[2], succinctly stated the scope of the orders as follows;
“The question for (the) Courts determination is whether the plaintiff is entitled to possession under this Order. To decide this Court has to consider the scope of the Order. This aspect is covered in detail in the Supreme Court Practice. 1993 Vol 1, O.113/108/1 at page 1602 and I state hereunder the relevant portions in this regard:
This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers.
As to the application of this Order it is further stated thus:
The application of this order is narrowly confined to the particular circumstances described in r.1 i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee hold over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1. W.L.R. 365; [1974] 1 All E.R. 593
[C] The Factual Background
[1] What are the facts here? It is necessary to approach the case through its pleadings/ affidavits, bearing those legal principles uppermost in my mind.
[2] The plaintiff in its affidavit in support deposed inter alia that:
[D] Consideration and the determination
[1] The Nasinu Land Purchase and Housing Co-operative Society Ltd, as plaintiff, seeks an order that it recover possession of the land comprised in Certificate of Title No. 3213, being Lot 1 on deposit plan No. 3130 which contains 326 acres and two roods [annexure SN – 1] on the ground that it is entitled to possession and that the 21 named defendants to these proceedings and persons unknown to the plaintiff are illegally occupying a part of the said land known as Stage II as the scheme plan approved on 12.04.2015 [Annexure SN – 2].
[2] The Stage II forms part of the land comprised in Certificate of Title No. 3213.
[3] The plaintiff on 26.06.2020 had requested the defendants to vacate the land in stage II and notified them that if they failed to do so within 7 days, the plaintiff would take legal proceedings. The defendants did not vacate the land by the time laid down in the notice.
[4] The Originating Summons which instituted these proceedings was issued by the plaintiff on 30-07-2020 against 21 named defendants and other persons unknown to the plaintiff.
[5] The plaintiff submitted to court a copy of Certificate of Title No. 3213, as annexure SN – 1. It is a duly certified Instrument of Title. Section 18 of the Land Transfer Act specifically provides that duly certified copy of Instrument of Title to be conclusive evidence of proprietorship unless the contrary is proved by the production of register or a certified copy thereof.
[6] As I understand the Plaintiff’s affidavits:
[7] In “Wiltshire CC v Frazer “[3] Stephenson LJ said that for a party to avail himself of the Order 113, he must bring himself within its words. If he does so, the court has no discretion to refuse him possession. Stephenson LJ [at para 77], went on 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 the 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.
[8] Have those requirements met in this case? Does the plaintiff have a right to possession of the land which meets the first of the requirement set out by Stephenson LJ and the defendants have no right which they can pray in aid to justify their continued possession.
[9] As I understand the pleadings and the written submissions of counsel for the plaintiff, the plaintiff does rely upon its title to bring the action to recover possession. I note that, as per the Certificate of Title No: 3213 (annexure SN -1) and a scheme plan approved on 12.04.2015 (annexure SN-2) the property in question was conveyed to the plaintiff on 28.12.1967. The transfer no. 102844 is annexure SN -2 and referred to in the affidavit in reply of Satya Narayan, the Chief Executive Officer for the plaintiff’s sworn on 08.12.2020. The transfer no. 102844 is not subject to any encumbrance, charge or lien.
[10] Therefore, the plaintiff became the registered proprietor of the land in question on 28.12.1967 and has remained the registered owner of the land in question. The plaintiff has proved a right to possession of the land which meets the first of the requirement set out by Stephenson LJ in Wiltshire CC.
[11] Now the defendants carry the burden of establishing by affidavit evidence that they have a legal right to be on the land in question.
[12] I note with concern that the 1st, 12th, 16th, 17th, 19th, 20th and 21st defendants did not file an affidavit in opposition to the plaintiff claim for vacant possession. It is a course which they were entitled to take. They should reply, if indeed they had a reply. And in the circumstances of the case, in the absence of a reply, I hold the inference inescapable that what the plaintiff has said to be true.[4]
[13] I will now deal with the defences which were adumbrated by the 2nd , 4th, 5th, 6th, 7th, 8th, 10th, 11th, 13th, 14th, 15th and 18th defendants to the plaintiff’s claim for vacant possession.
[14] First, it was said that some of the defendants have been in possession of the land for the past 33 years while the others claimed that they have moved in there recently and they say that they have a right to occupy the land.
[15] The defendants cannot rely on this as a defence to the plaintiff’s claim for vacant possession because the defendants have not sought a “vesting order” under and in terms of section 78 of the Land Transfer Act of 1971.
[16] Secondly, it was said that one “Sairusi” an agent or a servant of the plaintiff had verbally promised them that they could be allocated a piece of land to be transferred to them after survey and for a valid consideration.
[17] I would not attach importance to this, because no acceptable documentary evidence has been placed on record to come anywhere near a finding that a board member of the plaintiff co-operative society had agreed to give them a piece of land. Besides, “Sairusi”, is not a board member of the plaintiff co-operative society.
[18] Thirdly, it was said that the land in question was owned by Mataqali Matanikoro Vatu and Nayavutuka and was transferred to the plaintiff without the knowledge of the “Mataqalis”.
[19] This is not a possible defence to the plaintiff’s claim for vacant possession.
[20] The original title (Register volume 32, Folio 3213) does refer to a Crown Grant Folio 605 for provisions and reservations contained therein. But the Crown Grant has been cancelled on 07.11.1889, a long time before the transfer of title to Nasinu Land Company Limited in 1965 and to the plaintiff herein in 1967. Therefore, the provisions and the reservations in the Crown Grant is irrelevant now since the Crown Grant was cancelled in 1889. (Annexure SN -4 referred to in the affidavit of Satya Narayan deposed on 22.03.2021).
[21] I dismiss the defendants’ defence that the land was held in trust for the customary owners. I gain assistance from the decision of Inoke J in the case of “Ratu Epeli Kanakana and Others v A.G and Native Land Commission[5].
[22] The land in question is a freehold land which is owned in fee simple. The transfer no. 102844 is not subject to any encumbrance, charge or lien. It is that once the plaintiff acquired title to the property in question in 1967, and registered it in its name and obtained the certificate of title , the same becomes conclusive, absolute and indefeasible [section 38 of the Land Transfer Act] subject to it being annulled on the ground of fraud [section 41]. This is the ratio of the Supreme Court decision in “Star Amusement Limited v Navin Prasad and five others”[6],
[23] Fourthly, the defendants claimed that they are descendants of the customary owner of the land and claim hereditary ownership. I cannot accept this. There is no material on which I could reach a conclusion.
[24] It is essential to keep in mind that the defendants have been unable to place on record any acceptable material from the Department of Land, ITLTB, Mataqali and the Ministry of Itauki Affairs to refute the plaintiff’s claim that the land in question is a freehold land which is owned in fee simple. It is plain therefore that this is not a case in which the defendants could rely on the purported licence or permission from MATAQALI (not tendered in evidence) to continued possession and the defendants in occupation are in occupation without any claim of right, licence or consent obtained from the plaintiff.
[25] It has been common ground that the land was conveyed to the plaintiff by conveyance in 1967. The plaintiff became and has remained the owner of the property since 1967. The plaintiff enjoyed title to the land since 1967. The plaintiff has not granted the defendants licence or permission to enter and occupy the land in question and therefore the defendants and others unknown have continued occupation without any claim of right, licence or consent and they are trespassers on the land. The plaintiff’s right to occupy the land and be in possession arises from its title which has the protection of the law of trespass against intruders. Otherwise the law is powerless to correct a proved or admitted wrongdoing; and that would be unjust and disreputable. The plaintiff has title to bring an action for ejectment since there was trespass committed on the property.
[26] An action for trespass can only be brought by a person who is in possession or who has a right to be in possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of the property to the possession of the whole of his property, interfered with by unauthorized adverse possession.
[28] In my judgment, the plaintiff has a right to possession arising from title which meets the first of requirements set out by Stepheson LJ, and the defendants have no right which they can pray in aid to justify their continued possession. There is clearly no defence to the claim of possession.
(E) ORDERS
...............................
Jude Nanayakkara
[Judge]
High Court - Suva
Friday, 24th June, 2022
[1] (1983)47 P & CR 69 at 76
[2] (1999) FJHC 20; HBC 298 J. 98
[3] [1983] 47 P & CR 69 at 76
[4] Jai Prakash Narayan v Savita Chand FCA, Civil appeal No- 37 of 1985, Judgment 08-11-1985
[5] High Court Lautoka Civil Action No: HBC 116 of 1995, Date of Judgment 22.12.2010.
[6] [2012], CBV 0005.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2022/306.html
