Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Attorney-General v Muma [1994] FJHC 25; Hbc0496j.93s (15 March 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0496J.93S

Between:

THE ATTORNEY GENERAL
(On behalf of the Director of Lands and
Surveyor General)
Plaintiff

- and -

DR PATRICK MUMA
Defendant

Mr. J. Udit for the Plaintiff
Mr. J. Semisi for the Defendant

JUDGMENT

This is a Summons under section 169 of the Land Transfer Act Cap. 131 seeking an order of immediate possession of land being Crown Land without Title reference D37190 and erected thereon is the Government quarters No. 232 situate at Newboult Road, Muanikau (hereinafter referred to as the "said land") of which the Plaintiff is the registered proprietor.

The Plaintiff states that the Defendant was employed by the Government of Fiji on a two year contract from 5 November 1992 until 3 January 1993. He was provided with the said quarters.

By Notice dated 25 May 1993 the defendant was required to vacate the said land as his contract had expired and Government was under no obligation to provide him with housing but he refused to accept service of notice despite repeated attempts at personal service. Thereupon Notice dated 4 August 1993 which was on similar terms as the one of 25 May was posted via a "Registered Mail" (registered slip No. 7629). This mail was not returned to the Plaintiff. The Plaintiff produced to Court a certified true copy of "Receipt for a Registered Article No. 7629" with the signature of the "Recipient" which appeared to be that of the Defendant when one compares it with his signature to his Affidavit sworn 28 October 1993.

The process server ASERI ROBAROBALEVU (messenger in Attorney-General's Chambers) swore an Affidavit stating, inter alia, that he made attempts to serve the notice dated 4 August 1993 on six different occasions between 4 August 1993 and 13 August 1993 but on those occasions the defendant was either out of office or he refused to accept it. The defendant he says was well aware of the purpose of his visits to him. He (ASERI) was the one who sent the 'registered mail'.

The Plaintiff says that the defendant is a "trespasser and has been unlawfully occupying" the said land. The Originating Summons in this action together with the Affidavit of the plaintiff in Support was served by Cpl. 1429 SANAILA BIAU on 15 September 1993 but the defendant refused to sign for it; his solicitor however signed "Acknowledgement of Service of Originating Summons" on 5 October, 1993. The hearing was set down for 8 October 1993. Affidavit in Reply to Plaintiff's Affidavit was filed on 28 October 1993 and hearing of Summons took place on 1 March 1994.

The defendant through his counsel Mr. Semisi does not deny the Plaintiff's title to the said land but he maintains that he neither received any notice nor any attempts were made to serve him despite what is stated in the Plaintiff's affidavit.

Mr. Semisi asks, is there sufficient proof of service?

Secondly, he argues, since service is categorically denied, it raises "serious conflict of facts". So the question arises as to whether Court can give a ruling on Affidavits alone.

On the mode of service, Mr. Semisi says that the law requires personal service and if the Plaintiff has difficulty in serving then he should apply to Court for substituted service. He says that no such order was obtained. In these circumstances the service would be defective. He says that the service of notice is in dispute.

Mr. Semisi further argued that the defendant is not a trespasser as alleged by the Plaintiff. He says that proof of notice is absolutely vital but if he is a trespasser then there is no need to give notice and the Plaintiff could proceed under Order 113.

Mr. Udit disagrees with Mr. Semisi on his submissions and states that there are no serious questions of fact in dispute and that this matter can be dealt with on affidavits as filed. He further submits that there was service of the Notice to quit and that it was properly served. Finally, he says that apart from saying that the notice is invalid the defendant has not shown any cause as to why he should not give possession as required of him under S169 application.

The issue for Court's determination is whether the defendant has "shown cause why he refuses to give possession" of the said land as required under s.172 of the Act.

The three sections of the Land Transfer Act Cap 131 (hereafter referred to as "the Act") which deal with applications under S169 of the Act for vacant possession of land are sections 169, 171 and 172. It is apposite to set out those provisions of the sections which are relevant for the present purpose. The sections (in part) read as follows:-

"169. 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) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

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.

172. If the 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:.........."

There is no dispute that the Plaintiff is the registered proprietor of the said land and he comes into the category of persons who can call upon a person in possession to show cause why he should not give up possession.

The defendant was summoned, and although he was not present at the hearing of the Summons on 1 March 1994, he appeared through his counsel Mr. Semisi. It was for him, as required under s.172 of the Act, "to show cause why he refuses to give possession" of the said land (S.172) and "if he proves to the satisfaction of the judge a right to the possession of the land the judge shall dismiss the summons ... " (S172). So, the day set for hearing of the summons is the day the defendant must show cause. This the defendant did not do; all he did was to deny service of Notice to quit on him. If this is his ground for a right to the possession, then I am afraid I cannot accept it as a ground on what I have to say hereunder.

The Defendant contends that no legal notice to quit has been given. It is open to him to challenge in these proceedings the validity of the service of Notice to Quit that is alleged to have been given to him. It was so held in the following terms in MORRIS HEDSTROM LTD v KANJI RATANJI JOGIA AND ANOTHER 12 FLR 176 by HAMMETT P.J:

"The issue whether a notice to quit has been validly given or otherwise can be determined in summary proceedings under section 186 of the Land (Transfer and Registration) Ordinance" (forerunner of present s169) (insertion in bracket mine)

Therefore, in view of the above passage, with which I agree, I reject Mr. Semisi's argument that because he disputes service there are serious issues of fact which cannot be dealt with in a summary manner in these proceedings. The case of SHIU NARAYAN v SHELL FIJI LIMITED (F.C.A. Civ App. 52/87) to which counsel referred to in this regard has no relevance to this case as that case was decided on its own set of facts and can be distinguished from the facts of this case.

I find as fact on the affidavit evidence before me (and in this regard I do not see any reason for Aseri to be making a false affidavit) that several attempts were made to serve personally a Notice to vacate but the defendant refused to accept same whereupon the Plaintiff had no alternative but to send the Notice dated 4 August 1993 by registered mail (vide slip No. 7629); The Certified true copy "Receipt for a Registered Article No. 7629" was produced to Court with a signature of recipient appearing to be that of the defendant. All that the defendant says in his Affidavit in regard to the Registered Mail is:

"That in reply to paragraph 7 of the Affidavit , I say that I am not aware of the contents thereof and cannot admit or deny the same and in any case I verily believe and I am advised that service by "Registered Mail" is not valid service in Law."

The defendant does not say in clear terms in his affidavit in reply whether the signature on the "Receipt for a Registered Article" is his or not. His reply will have assisted the Court and as matters stand quiescence is acquiescence. Merely stating what he has is dodging the issue and leaves one guessing as to what actually happened. This does not help him.

What has happened to the Registered Mail? Has it been received by the defendant? If it was not why was it not returned to the sender (the Plaintiff) by the Post Office? Notwithstanding this state of affairs it is perfectly in order to serve a notice by registered post as provided in Section 176 of the Land Transfer Act which is (in part) as follows:-

"176. - (1) Any notice required by or under the provisions of this Act to be served or given to any person may be served or given by being sent by registered post to that person at his address for service.

(2) The address of any person as entered in the register shall, until amended or altered, be his address for service.

(3) ........

(4) ........

(5) ........

(6) ........

(7) ........

(8) The provisions of this section shall apply notwithstanding any other of the provisions of this Act relating to the service of notices".

This registered mail (forwarded on 16 August 1993) would in the normal course of post have been received by the defendant within a few days. In fact it was received by the recipient on 25 August 1993 (according to "Receipt for a Registered Article" slip).

On these facts the Court is satisfied there was a prima facie evidence of service by registered post of a proper notice to quit to deliver up possession of the said land (JAYANTI LAL & VALLABH BHAI & CO. LTD AND MORRIS HEDSTROM LIMITED (F.C.A. CIV. APP. 41/87).

Having found that the defendant was properly served with the Notice to Quit, the question now arises is whether the defendant has shown cause as required under s.172. In PREM SINGH and 1. MALELILI NAYAGODAMU v. 2. SEREMAIA BAIBAI (FCA Civ. App. 30/87) ROPER J.A. commented in a similar situation as this as follows:

"All the appellant did was to file an affidavit which states:

"That I am and have been an annual tenant. I am advised by my counsel and I verily believe that my annual tenancy has not been lawfully terminated."

That is the sum total of the Appellant's case. Kearsley J. concluded that the Appellant had not proved to his satisfaction that he had a right to possession and made the Order.

All we need say on this appeal is that if a bald unsupported statement such as the appellant made in his affidavit is held to amount to proof of a right to possession then section 169 is deprived of all practical affect".

Similarly, in this action, in his affidavit the defendant says, inter alia:

"... I have neither received nor am I aware of any person attempting to serve a Notice on me.

.... I am not aware of the contents thereof and cannot admit or deny the same and in any case I verily believe and I am advised that service by "Registered Mail" is not valid service in law.

.... that I have never received any Notice and further say that my termination letter of 16th December, 1992 did not require me to vacate the said premises and I have been permitted to reside therein since then."

The above statements in his Affidavit do not constitute a cause. What right has he to the possession when he is no longer employed by Government?; and under what circumstances and by whom has he been "permitted to reside" is not clear to entitle him to remain in possession. It was on the defendant on the hearing of the Summons to show cause but he has dismally failed to do so.

In the outcome, for the reasons given hereabove the Plaintiff is entitled to an order for immediate possession with costs under the provisions of the Land Transfer Act Cap. 131 and I do so order.

D. Pathik
Acting Puisne Judge

At Suva
15th April 1994

HBC0496J.93S