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Silikiwai v Attorney-General [2022] FJCA 13; ABU074.2016 (4 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO. ABU 74 OF 2016
(HIGH COURT CIVIL ACTION NO. HBC 149 of 2014)

BETWEEN:

EMOSI SILIKIWAI

Appellant

AND :

ATTORNEY-GENERAL OF FIJI
Respondent

Coram : Basnayake JA
Lecamwasam JA

Jameel JA

Counsel: Mr. K. Maisamoa for the Appellant
Ms. S. Ali with Ms. N. Narayan for the Respondent

Date of Hearing: 7 February 2022
Date of Judgment: 4 March 2022

JUDGMENT

Basnayake JA

[1] This is an appeal (pgs. 1-3) filed by the appellant (Defendant) to have the judgment (pgs. 121-136) dated 25 April 2016 set aside. By this judgment the High Court has allowed the reliefs prayed for in the originating summons. The High Court made order that the Defendant forthwith give vacant possession of the land in question. By the second order the learned Judge had given the Defendant 30 days to give vacant possession together with costs in a sum of $1000. It appears that there is a contradiction in the orders made.

[2] The Plaintiff respondent (Plaintiff) filed this action by way of originating summons on 3 June 2014 supported with an affidavit (pgs. 201-207). In the affidavit the Plaintiff claims that the Defendant was a tenant-at-will (TAW) of a crown land (pg. 113). The tenancy commenced on 17 August 1987. The Plaintiff avers that on 6 December 2004 the Defendant had been given notice to vacate (pg. 116) for breaching condition No. 2 of the TAW. This notice had been given under section 105 of the Property Law Act. The Plaintiff states that the land had been given specially for boat building and repairs. The Defendant in violation of this notice had used part of the land for a shop, amusement center and panel beating garage. Hence the Defendant has breached condition No. 2 in the TAW. The Plaintiff avers that the Defendant continued to occupy illegally after the termination of the tenancy.

[3] The Plaintiff states that the Ministry of Lands wrote to the Plaintiff on 26 January 2005 to vacate. In that letter it was mentioned that the Ministry of Fisheries and Forests needed the land for the re-development of Lami Fisheries Jetty. The Plaintiff again on 2 June 2005 wrote to the Defendant to vacate the land. The Plaintiff states that the Ministry of Fisheries and Forests are willing to pay the Plaintiff compensation upon him vacating the premises. That is in spite of the condition that no compensation of whatsoever nature shall be payable on the termination of the tenancy as per TAW, and also reminding the Defendant in the notice that no compensation would be paid. The “notice” to vacate also intimated that on failure to remedy the breach the Director of Lands may assess and demand monetary compensation.

[4] The Plaintiff also states that the Lami Town Council needed to regularize the Defendant’s occupation in order to charge rates and business license fees. The Plaintiff states that after investigation it was revealed that more reclamation work had been carried out, and there was spillage of diesel oil, overgrown grass and discharge of waste water into the sea. The Plaintiff states that the Plaintiff attempted to regularize the Defendant’s occupation but this was met with intransigent objections by the Ministry of Fisheries. The Ministry of Primary Industry too objected to the granting of lease to the Defendant due to reasons stated in paragraph 16 of the affidavit filed in support of originating summons (pgs. 204/5).

[5] The Plaintiff said that he wrote to the Defendant again on 5 January 2010 a notice to vacate within 30 days. Again on 18 March 2013 the Defendant was given 7 days’ notice to vacate or to meet legal proceedings.

[6] The Defendant (pgs. 224-230) answering to the Plaintiff’s affidavit stated that the TAW No. LD 60/462 commenced on 10.7.1985. The Defendant denied breaching condition No.2. The Defendant also disputed the issues raised in paragraph 16 á’ to ‘i’ of the affidavit filed by the Plaintiff. The Defendant filed a supplementary affidavit (pgs. 235-237) on 24 November 2014. The Plaintiff filed a reply on 4 December 2014 (pgs. 265-266).

Judgment of the High Court

[7] The learned Judge, having set out in detail the averments of both parties disclosed in the affidavits and submissions, states that (at pg. 131) “the tenant is occupying State land purely at the will and pleasure of the State”. The learned Judge refers to clause 6 of the TAW which states that the letter establishing TAW shall not operate to create a tenancy and the Defendant may be required to vacate the land on receipt of notice to that effect. The learned Judge states that this action was filed pursuant to Order 113 Rules 1 and 3 of the High Court Rules, 1988.

[8] It was argued for the Defendant that the Plaintiff had waived the notice by accepting payments of rent after the said notice. The original notice was served in 2004. However the Defendant has made payments of rent up to the end of 2016. The learned Judge successfully countered this argument with section 36 of the Crown Lands Act and Section 100 (2) of the Property Law Act (Clarke v Grant and another [1950] 1 K.B. 104 [1949] 1 All ER 768, Legal & General Assurance Society Limited v General Metal Agencies Limited (1969) 20 P & CR (Property, Planning and Compensation Reports) 953.

Legal Analysis

[9] One of the arguments of the Defendant is that this action could not be filed under Order 113 Rule 1 & 3.

Order 113 Rule I Where a person claims possession of the land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of tenancy) who entered into or remain 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” (emphasis added).

The learned Judge summarized the submission of the Defendant in paragraph [18] and gave an answer in the same paragraph. He states thus, “The Defendant submits that Order 113 Rule 1 is only applicable and relevant to trespassers or squatters who are adversely occupying the said land. The Defendant states that he is neither a trespasser nor a squatter and that he is presently occupying the land by virtue of the TAW. This court cannot accept this argument as the Plaintiff has clearly established that the TAW has been terminated and that the Defendant remains in occupation of the land without his licence or consent” (pg. 133).

[10] The Order 113 speaks not only of the tenants, but also of the over holding tenants after termination. The Agricultural Landlord and Tenant Act defines “tenancy” to include a lease, sub tenancy, a sub-lease or a tenancy at will. The Order 113 Rule 1, clearly excludes an over holding tenant from its application after termination of the tenancy. The Order 113 is specifically confined to trespassers who occupy a land without consent or the licence of the lawful owner. However, a tenant holding over after termination of his tenancy is excluded from the ambit of Ord.113 r.1, and is not a trespasser. He may have a valid defence to put forward which cannot be decided in a summary manner by way of affidavits and submissions. That kind of case has to be by way of writ of summons where after filing pleadings the contesting parties give evidence in court and provide an opportunity to test the witnesses. When one is in possession, and another occupies without the consent or licence of the owner, in such a situation the person who is claiming the land could file a originating summons under Order 113 Rule 1, and initiate proceedings. In such a situation the person in occupation has to show under what authority he is in occupation. If he has a valid licence, he could produce it as a defence. If there is none, the court may issue a writ of eviction. It cannot apply to a holding over tenant after termination. He will not be a trespasser after termination of tenancy. If that is the case, landlords could throw out the tenants by terminating their tenancies and filing originating summons instead of filing writ of summons.

[11] Order 113 Rule 3 further amplifies the fact that an action by way of originating summons could be filed only against a trespasser. In an affidavit the person who is claiming possession must state, “the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises” (Rule 3 b) (emphasis added). Significantly, a person who came into possession with a licence or consent is excluded. Admittedly the Defendant who came into occupation nearly 30 years before the filing of this action cannot be regarded as a trespasser on the termination of his licence.

[12] The learned Judge has relied on the case of Dutton v Manchester Airport [1999] All ER 675 at 679 where Chadwick LJ held, “Order 113 was introduced in 1970 (By Rules of the Supreme Court (Amendment No. 2) 1970, S1 1970/44), 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 the interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to the 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” (emphasis added) (Manchester Airport PLC v Dutton and Others [1999] EWCA Civ 596; [2000] Q.B. 133 at 139).

[13] This case does not appear to be as simple as first supposed. The Plaintiff himself reveals that apart from breaching a condition of the TAW the interest that many other institutions had shown to recover possession. One such institution was even prepared to pay compensation to the Defendant to recover this land. The Plaintiff said how he tried to regularize the Defendant’s occupation and failed due to strong opposition from many interested parties. The original notice to quit was given 10 years prior to the filing of this action. As per the Plaintiff’s affidavit, thereafter the Defendant was served with several other notices. I am of the view that the Plaintiff should follow the correct procedure. Considering the history of this case I am of the view that this irregularity could be cured by setting aside the judgment of the learned High Court Judge. I order the appeal be allowed without costs.

LecamwasamJA

[14] I agree with the reasons given and conclusions arrived at by Basnayake JA.

Jameel JA

[15] I agree with the reasons, conclusions and proposed Orders of Basnayake JA.

Orders of court are:

1. Appeal is allowed.
2. Judgment of the High Court dated 25 April 2016 is set aside.
3. No costs.
   

___________________________
Hon. Justice E. Basnayake
JUSTICE OF APPEAL

___________________________
Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

___________________________
Hon. Justice F. Jameel
JUSTICE OF APPEAL