IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 4 OF 2004

Between:

VANUA PACIFIC DEVELOPMENT COMPANY LIMITED
Plaintiff

and

JAG DEO
Defendant

Mr. P. McDonnell for the Plaintiff
Mr. S. Prasad for Maharaj & Associates for the Defendant

JUDGMENT

This is a s169 application for vacant possession under the Land Transfer Act Cap. 131 (the ‘Act’) in respect of property situated at Savusavu being all the land in Certificate of Title No. 35/193 being Lot 13 on the DP 8641 situated on the Island of Vanua Levu of which the plaintiff is the registered proprietor (hereafter referred to as “property”).

Plaintiff’s case

The defendant has been on the property for some years as a squatter and has built a house thereon.

A High Court action was instituted by the defendant and others in the Labasa High Court in 1999 wherein in relation to the main Title of which the property is part, he obtained an injunction which was dissolved when the plaintiff agreed to offer the property for sale to the defendant.

This offer was made on 20 March 2001 but the defendant did not respond.

The plaintiff has now contracted to sell the property to another party and requires vacant possession.

The defendant has not vacated and continues to be in illegal occupation of the property to which the plaintiff has an indefeasible Title.

Defendant’s opposition

The defendant says that he has built a house on the property and has been living there for several years.

He says that he has equitable right to remain on the property by virtue of the developments carried out by him.

Also, he says, that the ‘plaintiff by proprietary estoppel is estopped’ from taking an action against him.

Further, he says, that there is an action pending in the High Court being Civil Action No. 133 of 1999 instituted by the defendant with other occupants in the same settlement as his against Savusavu Town Council, Oswald Haynes and Registrar of Titles. The plaintiffs in that action are alleging fraud on the part of the Council and Haynes.

The learned counsel for the defendant submitted that by virtue of propriety estoppel the plaintiff in the present case cannot strictly rely on the remedies available in a summary proceeding such as this.

Counsel submits that the ‘defendant has prejudiced himself by providing maintenance to the subject property. He has developed the property on the basis that the said property is his and that he is entitled to an individually assigned lot for himself since he is a previous tenant of the Savusavu Town Council’.

Consideration of the issue

I have considered the written submissions from both counsel.

The undisputed fact is that the plaintiff is the registered proprietor of the property whereas the defendant came on the land as a squatter as stated hereabove and has built a house thereon. In fact he is illegally on the property.

The procedure under s169 is governed by sections 171 and 172 of the Act which provides as follows:

“s.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.”

S.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.”

It is for the defendant to ‘show cause’ as required under section 172.

The defendant has raised the point that the said action is still pending in the High Court in relation to a property part of which is in this present Title. The defendant’s dwelling-house is on the property.

The pendency of the action is no bar to my hearing the summons for possession (Dinesh Jamnadas Lalji & Anor. v Honson Limited FCA Civ. App. 22/83). In that case of Dinesh Jamnadas Mishra J.A. said:

“At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act.”
(emphasis added)

Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

“…that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”

Apart from allegation of fraud, which I shall consider later, there are no complicated questions of fact in this case to be investigated. Therefore procedure under s169 is most appropriate here. On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

“… the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

On the requirements of section 172 the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali, (Action No. 153/87 at p2 said as follows and it is pertinent:

“Under Section 172 the person summonsed may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

Indefeasibility of title

The defendant has raised the issue fraud on the part of the Savusavu Town Council and Oswald Haynes who is a Director in the plaintiff company.

On the evidence before me I do not see any inkling of fraud to in any way affect the title to the property in the plaintiff.

In Caldwell v Mongston 2 FLR 1 it was held that it is

“not competent for the Court to go behind Certificate of Title unless obtained by fraud: or a title has been obtained by adverse possession.” 

The principle of indefeasibility of title comes into operation in this action.

If the defendant has any complaint, he may have against the defendants in the said civil action, pending in the High Court for so long.

On the aspect of indefeasibility of title the following sections 38, 39 and 40 of the Act are relevant to this case and are to be borne in mind in considering the issue before the Court.

Section 38 provides: (registered instrument to be conclusive evidence of title).

“No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title”.

Section 39 provides: (estate of registered proprietor paramount, and his title guaranteed):

Section 39(1)

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register constituted by the instrument of title, thereto, but absolutely free from all other encumbrances whatsoever except:-

(a)	the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and

(b)	so far as regards any portion of land that may be by wrong description or parcels or of boundaries he erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and

(c)	any reservations, exceptions conditions and powers contained in the original grant.

39. (2) Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act.” (emphasis added)

Section 40 stated: (purchaser not affected by notice):

Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud. (emphasis mine)

Section 169 calls for evidence of title. Therefore unless an applicant is the registered proprietor or lessor of the land in question he will not have recourse to this section at all. In this case the applicant/plaintiff is the registered proprietor of the land.

It is clear from the affidavit evidence before me that as required by law no particulars of alleged ‘fraud’ have been given. They are just wild and general allegations. Mere alleged knowledge of the defendant’s alleged interest is insufficient and incapable on its own to impute fraud on the plaintiff. As against these allegations, the court has before it the plaintiff as the registered proprietor of the land. Even in the said civil action 133/89 wherein there is allegation of ‘fraud’, the issue has not been decided for that action is lying dormant for some unknown reason. The plaintiff in the present action cannot be expected to wait for the outcome of the decision in that case. In any case, this is a s169 application which can be dealt with independently of the other case.

Hence under the provisions of s171 of the Act, on the facts and circumstances of this case, the Court is entitled to deal with this matter in the manner I have stated whilst at the same time if I so decide to order a full trial before the Court.

Conclusion

To conclude, s.169 provides a summary and expeditious method of obtaining possession. This is applicable to ordinary cases without any complicated questions of fact and legal inferences.

Apart from general allegation of ‘fraud’ this is clear cut straightforward matter without complications and can be easily dealt with in a summary manner.

I find that that the defendant has not ‘shown cause’ to my satisfaction why he should not give vacant possession of the land as required under s172 of the Act.

A somewhat similar situation such as the one here arose in the unreported case of Ram Singh f/n Sobha Ram v Azad Kumar f/n Bihari (Civil Action 661/85 and C.A. 44/86 – Lautoka [Western Division] – Dyke J) where there was no allegation of fraud except misrepresentation. There the plaintiff claimed that he holds documentary evidence of the Lands Department’s assurances and promises that he would be given a lease of the land.

Dyke J’s statement in Ram Singh (supra) which is as follows is apt and I adopt it in this case:

“Azad Kumar’s status has not changed from that of a squatter, and Ram Singh has a valid lease over the land. Perhaps Azad Kumar could seek compensation or damages from the Director of Lands if he can prove that he has been misled into expending money on building a house on the land by valid promises or misrepresentations by the Director, but this cannot affect Ram Singh who holds a valid lease properly issued to him over the land.

Ram Singh holds a valid lease and naturally wishes to develop the land. Azad Kumar cannot produce any title or enforceable right to remain on the land.” 

In the present case the defendant built a house on the property. The defendant has alleged that he built the house and was promised a block of land but not by the Savusavu Town Council and the said Haynes who is a Director of the Plaintiff Company.

In this context the following statement from the Court of Appeal case of Ram Chand and Others v Ram Chandra (Civil Appeal No. HBA0021.2002S) is apt and I apply it here:

“the fact that a tenant carries out improvements without the consent of his or her landlord does not give him a right to continue in the occupation of the land if the landlord is otherwise lawfully entitled to it. On the other hand, if improvements are carried out pursuant to some understanding, however loose, it may be that in some cases rights will be conferred on tenants at least to purchase the land if a price can be agreed upon. One cannot lay down any hard and fast rule. Every case will depend upon its own facts.”

Under s172 the judge is empowered to ‘make any order and impose any terms he may think fit’.

On all the facts and circumstances of this case, in the case of the plaintiff it was well aware of the fact that the defendant had effected improvement to the property by building a house for himself, it should have inquired as to how the defendant came to be there and if he has any claim to be on the property.

The plaintiff became the registered proprietor with full knowledge of the defendant’s position and other discussion with Savusavu Town Council.

In the outcome, for the above reasons it is ordered that the defendant give vacant possession of the property in question upon payment to him by the plaintiff either the value of the house thereon or the plaintiff bear the cost of removal of the house to where the defendant wants it in Savusavu at its own expense within 3 months from the date of this judgment failing which the order for vacant possession will become effective. Execution stayed for three months. I award costs against the defendant in the sum of $300.00 to be paid within 28 days.

D. Pathik
Judge

At Suva
16 June 2005