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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CIVIL APPEAL NO. ABU0063 OF 2022
[Suva Civil Action No: HBC 170 of 2022]
BETWEEN:
NAIRS TRANSPORT COMPANY PTE LIMITED
Appellant
AND:
SARITA DEVI
Respondent
Coram: F Jitoko, P
A Qetaki, JA
R Dobson, JA
Counsel: Mr D Nair for the Appellant
Ms A Singh for the Respondent
Date of Hearing : 4 July, 2024
Date of Judgment : 26 July, 2024
JUDGMENT
Jitoko, P
Introduction
[1] On 20 May 2022, the Appellant (Plaintiff in the proceedings in the High Court) filed an Originating Summons under Order 113 of the High Court Rules 1988 seeking the Respondent’s (Defendant in the same proceedings) immediate vacant possession of the land described under the Approval Notice for Lease dated 23 June, 2010 (L1) reference: 4/16/1226) being Lot 81 Wainibuku (pt. of) R1679, in the province of Naitasiri. The land previously zoned as Residential (Class B) is re-zoned under the new Approval Notice, as commercial for heavy industrial purpose and, specifically for use as a bus depot. The term of the lease is 99 years.
[2] In its 20 May 2022, affidavit in support of the Summons, deposed by one of the Company’s directors, Shorene Shabina Kant, the Appellant alleged that the Respondent had entered and remain on the land illegally and continued to do so after the issuance of the Approval Notice for Lease. A notice to vacate was served on the Respondent on 27 July, 2021 but she “continued to occupy the land without the licence and consent of the Plaintiff and or the lessor.”
[3] The affidavit by the Respondent of 12 July 2022, in opposing the Summons, stated that she is the legal wife of the late Rajaishwar Nair, son of Raghwan Nair, and a shareholder of the Appellant’s company, and she and her late husband had been residing legally on the land when it was a residential lease, for more than 40 years. Her husband was entitled along with six(6) other beneficiaries, in equal shares, to all “real and personal property of whatever nature or kind....” belonging to her late husband’s father, Raghwan Nair. These assets, according to the Respondent, would include equal shares in the bus business of the Appellant. In turn, in her late husband’s Will, he has bequeathed all his property “both real and personal” to her and their two (2) daughters upon trust.
[4] The Respondent further claims that the shares in the company held by her late husband, Rajaishwar Nair were unlawfully re-allocated on 6 May, 2015, thus depriving her and her two daughters as trustees of her late husbands of his bequests.
[5] The alleged unlawful re-allocation in the shares of the Appellant’s company is being litigated presently in the proceeding in High Court in CA No. HBE 364 of 2017.
[6] The High Court in its decision of 6 October 2022 in this present O113 proceedings concluded, that by virtue of the Approval Notice for lease the land in question issued on 23 June, 2010 to the Appellant Company, it has the right to possession to the land.
[7] However, given the current proceedings in HBC 364/2017 which will determine the ownership of the shares in the company, and ultimately reflect on the status of the Respondent’s occupation of the land, the Court could not order in favour of the Appellant’s summons. It refused the application for vacant possession and ordered costs of $1,000.00.
The Appeal
[8] There are five (5) grounds of appeal filed and are set out below:
“1. That the learned Judge erred in law and in fact by not holding that the Defendant’s continuous occupation of the subject land after the Plaintiff was issued with the Approval Notice to Lease from 23 June, 2010 without the consent of the Plaintiff is a trespasser.
Consideration
[9] This proceedings is brought under Order 113 of the High Court Rules. The scope and purpose of the Order has been fully discussed in many cases before our Courts, the most recent being this court’s decision in Narend Nair v. Madhu Khan & Others, Civil Appeal No: ABU0021 of 2021; HBC 163 of 2020.
[10] It is important to understand that Order 113 is a summary proceeding for possession of land and is primarily aimed at the eviction of people who come onto the land as squatters or are given a licence, which is terminated and the licensee refuses to leave.
[11] Rule 1 of the Order is all encompassing as to the class or specie of occupiers that are covered. It states:
“1. 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 and remain in occupation without his licence or consent or that of the predecessor in title of his, the proceedings maybe brought by originating summons in accordance with the provisions of this Order.” (emphasis is mine).
[12] The requirements under Order 113(1) are quite onerous as far as the legal title holder is concerned, but the law is intended to protect that occupier who has a right, or claims to have a right or interest, in the land he or she is occupying.
[13] The Court will agree to grant relief under Order 113 “only in the clearest of cases” (see: Bavindra Kumar v. Ageshwar Kumar & Others [2010] HBC 157/08L). Where there are disputes over the right to occupancy, the matter is best left to a proper writ proceedings rather than originating Summons under Order 113.
Grounds 1 and 2 of the Appeal
[14] These grounds can be conveniently dealt with together, as they are related. The Appellant under Ground 1, submits that the Respondent’s continuing occupation of the land, long after the Appellant had been issued with are Approval Notice for Lease on 23 June, 2010, without the approval or consent of the Appellant as the new lessee, amounted to illegal occupation and the court erred in law and in fact by not ordering her eviction.
[15] It is well to bear in mind that the Respondent had been staying on the land as a licensee at the very least, the wife of one of the Directors of the Appellant Company and who also held shares in it.
[16] Before the Appellant can seek the support of Order 113, it must satisfy the Court that all the ingredients of Rule 1 are met namely:
- (i) that the land is being occupied by someone who is not a tenant that is claiming the right to tenancy after it has been terminated, and
- (ii) that the occupier has entered and remained in occupancy without a licence on the consent of the owner or the predecessor in title.
[17] In this case the Appellant has clearly established that it is the new legal lessee through the Approval Notice and the High Court has declared it to be so. That alone does not mean that any occupier on the land is ipso facto on the land illegally.
[18] The Appellant has to furthermore prove that the Respondent does not have any right to remain on the property, nor does she claim occupancy by virtue of a licence or the consent of the “predecessor in title,” who is this instance, will be the successors to Sanguni Nair, the holder of the Crown Lease 2064 issued for a term of 99 years with effect from 1 January 1949.
[19] The Court is satisfied that there is a serious dispute on whether the Respondent is legally in occupation, which in turn is linked to the ownership and control and ultimately the actions of the Appellant Company towards the Respondent, notwithstanding the existence and legality of the Approval Notice for Lease granted to the Appellant. The outcome to HBE 364 of 2017 will, as the High Court had concluded, define and decide the Respondent’s status on the land she presently occupies.
Grounds 3, 4, and 5 of the Appeal
[20] These grounds are interrelated dealing with the alleged unlawful allotment and re-distribution of the shares in the Appellant company, that is the subject of civil proceedings HBE 364 of 2017. The Respondent is a party to the proceedings in her capacity as one of the executors and trustees of her late husband’s, (Rajaishwar Nair), estate and who held an equal share in the Appellant company, at his demise on 12 March 2004. In this capacity, the Respondent claims, that she has a right, at the very least, a licence, to remain on the land pending the determination of the case.
[21] The Counsel for the Appellant in his submission, emphasised the principle of law in the House of Lords case of Salomon v A Salomon and Co Ltd [1897] AC 22 that firmly established that the company is a separate legal entity to that of its shareholders. This was recognised and adopted in our Donlon v Chief Executive Officer, FIRCA [2017] FJHC 246. In this case, Counsel argues that there is no relationship between the Respondent and the individual persons that are parties to the High Court HBE 364 of 2017 proceedings, to the Approval Notice issued to the Appellant Company and added:
“The outcome of the HBE 364/2017 will only determine the shareholding of the Appellant (Company), if any, which will not give the Respondent or any other party the licence to utilise the land for residential purposes, the purpose for which the land is being used is heavy industrial – Bus Depot by the appellant as the lessee only.”
[22] We note the Counsel’s argument of the application of the Salomon v A Salomon principle to our company law, in that the company is an independent person with its rights and liabilities appropriate to itself. Therefore, it follows that the attempts by the parties to the High Court proceedings are not relevant to the rights of the Appellant Company to the possession of the land.
[23] The exception is what is referred to as “lifting or piercing of the corporate veil” where there is allegation of fraud, façade or sham, or injustice, or unfairness. These are common law grounds and evolved through case law as equitable remedy.
[24] Quite clearly the HBE 364/2017 proceedings involves allegations by the Plaintiffs of the unlawful allotment of shares in the Appellant Company that deprived them of their shares, and that is sufficient to pierce the corporate veil in response to the arguments by the Appellant of the application of the Salomon v A Salomon principle.
[25] In any event, it is still possible for the claim by the Plaintiffs including the Respondent, in the High Court proceedings, to have the shares of the Appellant Company re-distributed with the Respondent, as executor and trustee of the estate of her late husband, Rajaishwar Nand, ending up owning an equal share in the Appellant Company. It is also possible that, while the Respondent will still be required to comply with the by-laws and legal requirements of the Nausori Town Council and the Department of Town and Country Planning, it may not necessarily be under the threat of Order 113, summons/proceedings. In other words, as elaborated at paragraph 19 above, the legal status of the Respondent’s occupancy on the land can change, depending on the outcome of the case.
[26] This Court agrees with the High Court Decision that whilst the Appellant has the right of possession to the land, Order 113 cannot succeed until the issue of its ownership being contested by the Respondent amongst others, is decided in the stated Court proceedings.
[27] The Appellant’s Counsel emphasised that the Approval Notice to lease granted to it gave the Appellant the right to eject the Respondent. The High Court had made it very clear that it has the right of possession as stated at paragraph 18 of the Decision:
“[18] The plaintiff company has satisfied this Court that it has a right to possession of the land in question. Its right to possession vested on Approval Notice of Lease [Annex S-2]”
[28] Counsel referred to Kant v Nair [2021] FJHC 89; HBC 163.2020 (15 February 2021) which was a successful Order 113 application and the Court’s powers to make interlocutory order for possession where clearly there is no defence. The Court added that the Court of Appeal of England and Wales in Dutton v. Manchester Airport [1999] EWCA Civ. 596; [199] 2 AllER 675 emphasised that (at p.679):
“_ _ _ 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 or right – that is to say against trespassers.”
[29] The appeal in Kant v. Nair (supra), by the occupier (the appellant) of the land, was dismissed, the Court of Appeal agreeing with the finding of the High Court that the appellant had failed to show or satisfy the Court of any legal basis to remain on the land.
[30] In this case, the High Court had clearly concluded that whilst the Appellant has the right of possession, it cannot be said that the occupation by the Respondent is without any claim or right stating that her “basis for occupation is contentious and will depend on the determination of HBC 364/2017.”
[31] The Appellants “Notice to Vacate” dated 30 March 2020 from its Solicitors, is addressed to “Nilesh Rishi Nair and other occupants.” The Court presumes that the Notice is addressed to Nilesh Rishi Nair and generally to all others who are in occupation of the land. It says at paragraph 3 that the Notice is a Statutory Demand Notice “against you and all the occupants of the premises for the immediate vacant possession of the same which you and others are in occupation.”
[32] There is no question that the Notice to Vacate had properly been issued although we doubt that the relevance of referring to the directive from the Assistant Director of Town and Country Planning or the notice issued by the Nausori Town Council pointing out restrictions of residential homes on re-zoned individual land add any weight, or are material factors to the issue of the legal or illegal occupation of the Respondent on the land. As the Respondent Counsel had correctly pointed out both the Town and Country Planning Department, and the Nausori Town Council possess their own independent statutory powers to prosecute and rectify any breaches of the law they administer. In any case, the Respondent contends that the Nausori Town Council “Statutory Notice” of 26 July, 2021 to “Stop Work and Eviction Notice for Residential occupants” on the land, and addressed to the Appellant was in fact intended for the Appellant as it too had begun to build a residential structure on the land.
Protected Lease and Consent of the Director of Lands
[33] Counsel for the Respondent submitted that the Appellant had not sought the consent of the Director of Lands required under Section 13 of the State Lands Act 1946 before bringing these proceedings. In particular Clause 1 of the Approval Notice of Lease issued on 23 June 2010 states:
“[1] Lease to be subject to the conditions set out in the Crown Lands (Leases and Licences) Regulations a summary of which conditions are attached hereto. This is a protected lease under the provisions of the Crown Lands Act.” (now the State Lands Act).
[34] Section 13 of the State Land Act describes what a protected lease is and the applicable law. It states:
“Protected leases
13 – (1) Wherever in any lease under this Act there has been inserted the following clause:-
“This lease is a protected lease under the provisions of the Crown Land Act.”
(hereafter called a protected lease) it shall not be lawful for the lessee thereof to alienate, or deal with the land comprised in the lease or any part thereof, whether by sale transfer or sublease or in any manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except with the suit or the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any Court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease. Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.”
[35] The requirement of the Director of Lands written consent before proceedings are brought in Court by a lessee, is, the Respondent’s Counsel submitted, required. If consent has not been obtained, then the “dealing” is null and void.
[36] Counsel for the Appellant in response, submitted that the State Lands (Budget Amendment) Act 2021 had dispensed with the requirement by stating in the new subsection 13(1A) as follows:
“(1A) Notwithstanding anything contained in subsection (1) written consent of Director of Lands is not required for any mortgage, charge, pledge, caveat or for any such lease to be dealt with by any court of law or under the process of any court of law _ _ _”
[37] However, the State Lands (Amendment) Act 2023, re-instated the full provisions of section 13(1) and abolished the new subsection 13(1A). It also included a transition provision, Section 13A that states:
“13A (1) Any mortgage, charge, pledge, caveat or lease to be dealt with by any Court of law under section 13 on or after 1 August 2021, and before the commencement of the State Lands (Amendment) Act 2023, is deemed to have acquired the required consent in accordance with section 13.
(2) Any application received for any mortgage charge, pledge, caveat or lease to be dealt with by any court of law or under the process of any court of law under section 13 on or after 1 August 2021 and before the commencement of the State Lands (Amendment) Act 2023 for which a decision has not been made must acquire the required consent in accordance with section 13.”
[38] What in fact all these changes in the law simply means is the requirement of the Director of Lands consent in a protected lease, abolished in 2021, were re-instated by the State Lands (Amendment) Act 2023, except for those dealings including court proceedings, that took place between 1 August 2021 and 14 September 2023, the date of the repeal of the 2021 amendments and the commencement of the 2023 amendments.
[39] The Court notes in this regards, the Appellant’s Originating Summons under Order 113, which began this proceedings, was filed on 20 May 2022 in the Suva High Court and its supporting affidavit on 30 May 2022.
[40] The transition provision, section 13A(1) of the 2023 amendment as set out above, allows this proceedings to continue without, the consent of the Director of Lands. There is no merit in the Respondent’s arguments that the Director of Lands consent was required.
Conclusion
[41] For Order 113 application to succeed, the Appellant must show that the occupiers on the land have:
- (i) entered into the land illegally,
- (ii) have remained in occupation without the Appellant’s consent, or
- (iii) have remained without the consent of any predecessor in title to the Appellant.
[42] Quite clearly, in this instance, the Respondent had not entered the land illegally, as she had resided in the property for over 40 years with her late husband who was an equal shareholder in the Appellant Company. The Respondent however, it is conceded, has remained in occupation without the Appellants consent, but she remains, she claims, with the consent of the predecessor in title to the Appellant. The validity of her claim to legitimate occupation is being argued before the High Court in HBE 364 of 2017.
[43] In all the circumstances, the pre-requisites for an order for possession under Order 113 has not been satisfied by the Appellant and the appeal cannot succeed.
Qetaki, JA
[44] I have considered the judgment of Honourable Jitoko P, in draft and I agree with it, the reasons and the proposed orders.
Dobson, JA
[45] I agree with the reasons in the Judgment of the Learned President, and the orders that follow from it. I write separately to identify an additional reason that I consider prevents the appellant from invoking Order 113 in this case.
[46] The terms of Rule 1 of the Order are set out at [11] above. To qualify for an order evicting occupants, the person entitled to possession has to establish that the person or persons sought to be evicted are those “solely” in occupation. The rationale for this requirement is obvious: In the classic circumstances of trespassers or squatters, the party seeking to remove them cannot pick and choose, and an order will only be available if those claimed to be wrongly on the land are dealt with uniformly.
[47] [In this case, the evidence was that the family of one of the current directors of the appellant had more recently taken up residence in a wooden dwelling constructed on the property. The respondent produced photographs of it and of family celebrations on that part of the property.
[48] The requirement for the company to move uniformly against all alleged unauthorised occupants (where the pretext was non-compliance with the new zoning of the property as Heavy Industrial) to satisfy the pre-condition that they were those “solely” occupying unlawfully was put to Mr. Nair during his submissions. His response was that the company was clearing the property of unlawful residential occupants “in stages”, suggesting that once the respondent had been removed, the company would then move against the others residing on the property.
[49] I have difficulty accepting this explanation, given the antipathy of those currently controlling the company towards the respondent, in contrast to the close alignment between them and the other residential occupiers.
[50] However irrespective of whether that is the intention, the attempt to evict some only of those who the company claims to be unlawfully residing on the property takes its action outside the necessary pre-conditions for an Order.
[51] On this ground as well, I would dismiss the appeal.
Orders:
(1) The appeal is dismissed.
(2) Costs of $2,500.00 against the Appellant to be paid within 21 days.
Hon. Justice Filimone Jitoko
PRESIDENT, COURT OF APPEAL
Hon. Justice Alipate Qetaki
JUSTICE OF APPEAL
Hon. Justice Robert Dobson
JUSTICE OF APPEAL
Solicitors:
Nilesh Sharma Lawyers for the Appellant
Kohli & Singh for the Respondent
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URL: http://www.paclii.org/fj/cases/FJCA/2024/146.html