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Kumar v Tusai [2024] FJHC 89; HBC276.2019 (14 February 2024)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]

Civil Action No. HBC 276 of 2019

BETWEEN

RONAL RITESH KUMAR
of Navakai, Nadi.
Plaintiff

AND

TOMASI TUSAI, PENAIA DRIU, VIJAY SINGH
and all other illegal occupants all of Navakai, Nadi
Defendants

Civil Action No. HBC 277 of 2019

BETWEEN

RONAL RITESH KUMAR
of Navakai, Nadi.
Plaintiff

AND

ELIZABETH WYE, TEVITA DAKUNA, ASENA
BULOUNICEVA SAQASERE, SAKIUSA SIRINATURAGA MASIWINI
and all other illegal occupants all of Navakai, Nadi
Defendants

Civil Action No. HBC 278 of 2019

BETWEEN

RONAL RITESH KUMAR
of Navakai, Nadi.
Plaintiff

AND

JONE TUKUNA
and all other illegal occupants all of Navakai, Nadi
Defendant

Before : Master U.L. Mohamed Azhar

Counsels : Ms. S. Moceinavaga for the plaintiff in all actions
Ms. S. Veitokiyaki for the defendants in all actions

Date of Judgment : 14.02.2024

JUDGMENT

01. The plaintiff summoned the above named defendants in three different actions commenced by way of Originating Summons pursuant to Order 7, 28 and 113 of the High Court Rules. The plaintiff moved the court for orders on all the defendants to immediately deliver the vacant possession of all three properties (hereinafter referred to as “the subject properties”) described in the following paragraphs.

02. In the Action No. 276 of 2019, the plaintiff sought an order that, the defendants TOMASI TUSAI, PENAIA DRIU, VIJAY SINGH and all other illegal occupants forthwith quit and deliver the vacant possession of all the Plaintiff’s land comprised in the State Lease No. 22449, Lot 4 on SO 7592 being LD 4/19/6348 situated at Navakai, Nadi.

03. In the Action No. 277 of 2019, the plaintiff sought an order that, the defendants ELIZABETH WYE, TEVITA DAKUNA, ASENA BULAUNICEVA SAQASERE, SAKIUSA SIRINATURAGA MASIWINI and all other illegal occupants forthwith quit and deliver the vacant possession of all the Plaintiff’s land comprised in the State Lease No. 22448, Lot 3 on SO 7592 being LD 4/19/6347 situated at Navakai, Nadi.

04. In the Action No. 278 of 2019, the plaintiff sought an order that, the defendants JONE TUKUNA and all other illegal occupants forthwith quit and deliver the vacant possession of all the Plaintiff’s land comprised in the State Lease No. 22447, Lot 2 on SO 7592 being LD 4/19/6346 situated at Navakai, Nadi.

05. In all three cases the plaintiff sought the costs from the defendants on the indemnity basis, and such further and or other relief as this court may deem just. The supporting affidavit is identical in all three cases. The defendants chose to file a single affidavit in opposition. It was sworn by SAKIUSA SIRINATURAGA MASIWINI the fourth-named defendant in Action No. 277 of 2019 in respect of all three cases.

06. 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".

07. This Order provides for a procedure to recover of possession of a land which is in wrongful occupation by trespassers who have neither license nor consent either from the current owner or his predecessor in title. 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 ex-parte 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.

08. It is a 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)”.

09. In view of that, it is the duty of a plaintiff, who invokes the jurisdiction of the 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.

10. The subject properties are the sub-divided Lots 2, 3 and 4 of the Original Crown Lease No. 10607. Original Crown Lease is marked as “RRK 2” and annexed with the supporting affidavit. The plaintiff stated that, he purchased the Original Crown Lease in year 1998 with the help of his siblings. The last Memorial in “RRK 2” is evident that, the plaintiff purchased the said Crown Lease in year 1998. The siblings built the dwellings on the said Lease on mutual understanding. The siblings later moved from the houses and the plaintiff rented them to the defendants. The defendants continued to pay the rent up and until the said Original Crown Lease expired in 2003. The plaintiff applied for renewal. Whilst the application for renewal was pending, the plaintiff sent notice to the defendants to vacate the same, because the siblings were to sub-divide the land comprised in the Original Crown Lease.
    
11. The defendants then lodged complaint with the Department of Land. The Divisional Surveyor – Western acting on behalf of the Ministry Land informed the plaintiff by letter marked as “RRK 3” that, the land was vested with the state after expiry of the Original Crown Lease and advised him to allow the defendants to continue for six months from 05.08.2013 to look for alternative accommodations including schools for their children. The Ministry further advised the plaintiff that, the defendants would only pay water and electricity bills and he should not interfere with their activities.
    
12. The plaintiff stated in his affidavit that, he did not collect the rents from the defendants since the date he was advised by the Ministry by letter marked as “RRK 3”. The Department of Land, on 10.02.2014, approved two years Development Lease for the plaintiff by letter marked as “RRK 5” and annexed his supporting affidavit. Thereafter the plaintiff sub-divided the said land and 4 separate leases were issued to him by the State. The new Leases are marked as “RRK 1” and annexed with the supporting affidavits in each case. The defendants continued to occupy the properties after lapse of six months given by the Divisional Surveyor – Western. The plaintiff then issued the notice on the defendants to vacate the properties and commenced these three cases in this court when they refused to vacate the same, even after renewal of leases in favour of the plaintiff.
    
13. The plaintiff has established his right to claim the possession of the subject properties by producing the copied of the renewed State Leases (State Lease No. 22447, State Lease No. 22448 and State Lease No. 22449) issued to him for 99 years commencing from 01.07.2017. The defendants admitted that, the plaintiff was the lessee of the Original Crown Lease and they entered it, which is now sub-divided, as tenants of the plaintiff.
    
14. The defendants also admitted that, the Divisional Surveyor – Western acting on behalf of the Ministry Land informed the plaintiff that, the land was vested with the state after expiry of the Original Crown Lease and advised him to allow the defendants to continue for six months from 05.08.2013 to look for alternative accommodations including schools for their children. The defendants annexed with their affidavit a copy of same letter that was marked as “RRK 3” and annexed by the plaintiff in his affidavit. The defendants further stated that, after expiry of the Original Crown Lease, they applied for the lease in respect of the same property to have individual lease to them. They also had several meetings with the relevant authorities. However, they realized that, the new leases were issued to the plaintiff. The defendants claim that, they have interests in the subject properties.
    
15. The duty of the defendants, in these cases commenced pursuant to Order 113 of the High Court Rules, is to satisfy the court that they had consent either from the plaintiff or his predecessor in title or they have title either equal or superior to that of the plaintiff. It is now obvious that, the plaintiff, who currently holds the renewed lease, did not consent for the defendants to occupy the subject properties. Further, the state by letter marked as “RRK 3” and annexed with the plaintiff’s affidavit (same letter is marked as “SSM 4” by the defendants and annexed with their affidavit) allowed the defendants to occupy for six months from 05.08.2013 for them to find an alternative places. This permission was granted by the Ministry of Land after expiry of Original Crown Lease given to the plaintiff. The subject properties, during the period of expiry of Original Crown Lease of the plaintiff, were vested with the state. This consent was for only six months as stipulated in the said letter and expired after lapse of six months. In any event the State granted new leases to the plaintiff and the permission temporarily granted to the defendant to stay for six months completely ceased. Therefore, the defendants have no licence from both the state and the plaintiff.
    
16. Furthermore, the defendants, even though they entered the subject properties as tenants, made several attempts, after expiry of plaintiff’s Original Crown Lease, to secure an individual lease for them to the areas occupied by them. However, the state did not consider them having any interest over the subject properties, and renewed the lease in favour of the plaintiff. This clearly shows that, the defendants did not have any interest over the subject properties, nor did they have any colour of right to occupy the same.
    
17. Lord Denning in Mcphail v Persons unknown [1973] 3 All E.R.393 explained the term ‘squatter’ for purpose of Order 113 is as follows:
    

“What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can”.

18. Lord Morris of Borth-Y-Gest in British Railways Board V Herrington [1972] UKHL 1; (1972) A.C. 877 explained the term ‘trespasser’. It is a case involving occupiers’ liability and His Lordship said at page 904 that:
    

"The term 'trespasser' is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another's land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers".

19. According to the above two decisions the defendants, who do not have consent from the plaintiff or from the state, are the squatter and trespassers to the subject properties. They have no right whatsoever to defend the summons and to remain in possession of the subject properties. They ought to be evicted with other occupants of the subject properties with immediate effect.
    
20. The Order 113 of the High Court clearly excludes the tenant or tenants holding over after the termination of the tenancy. The defendants were the tenants of the plaintiff before expiry of the Original Crown Lease of the plaintiff. Therefore a question may arise as to whether the plaintiff could have validly employed Order 113 to evict the tenants? Admittedly, the defendants were the tenants of the plaintiff. Thereafter the defendants stop paying the rent after expiry of the Original Crown Lease of the plaintiff. The plaintiff too stopped collecting the rents after the Ministry of Land advised him by letter marked as “RRK 3”. The subject properties too were vested with the state. Since then the landlord and tenant relationship between the plaintiff and the defendants ceased. When the new leases were issued to the plaintiff, no such relationship was created. Accordingly, the plaintiff became lessee of the subject properties and the defendants became the squatters who were occupying the subject properties without any colour of right. The plaintiff rightly employed the proceedings under Order 113 of the High Court Rules.
    
21. The defendants, knowing very well their position in the subject properties, that they entered the subject properties as tenants and having failed in securing Leases from the Department of Land continued to occupy the subject properties causing costs to the plaintiff. Therefore, the defendants should pay reasonable amount of costs to the plaintiff for bringing these three summons.
    
22. Therefore, I make following final orders:
    
    1. The defendants and other occupants of the subject properties in all three cases are hereby ordered to immediately deliver the vacant possession of the subject properties to the plaintiff, and
       
    2. Each defendant in all three cases should pay summarily assessed costs in sum of $ 1,000.00 to the plaintiff. The total costs to be paid to the plaintiff in all three matters is $ 8,000.00. The costs should be paid within a month from today.
       

U. L. Mohamed Azhar
Master of the High Court
At Lautoka
14.02.2024