IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBC 350 of 2008

IN THE MATTER of Approval Notice dated 23 November 1987

AND

IN THE MATTER of Order 113 of the High Court Rules 1988

BETWEEN:

Arya Pratinidhi Sabha of Fiji
Plaintiff

AND:

Merrum, John Sami and Metuisela Nabou
Defendants

Cor: Inoke J

Mr. A Tikaram of Counsel for the Plaintiff
Mr. R Singh of Counsel for the Defendants

Date of Hearing: 8th April 2009
Date of Ruling: 9th June 2009

RULING

INTRODUCTION:

1.	This is an application by Originating Summons by the Plaintiff seeking vacant possession of its land pursuant to Order 113 of the High Court Rules 1988.

2.	The matter was heard on 8 April 2009 and I had intended to deliver my Ruling on 16 April 2009 but because of the intervening events of 10 April it was not possible. Now that the High Court has reopened as of 22 May 2009 I had called this file up for me to write my Ruling and deliver it at the earliest opportunity, rather than wait for the next call date of 30 June 2009 as earlier advised by the Registry. I am grateful for Counsel for being able to appear and take my Ruling on short notice.

3.	I am also grateful for both Counsels very helpful written and oral submissions.

4.	This application is one in a series of applications by the Plaintiff against several Defendants in Civil Actions 346 to 351 of 2008. The Master of the High Court had ordered that they be all heard as one under civil case number 350 of 2008 so this Ruling applies to all of those other actions as well.

THE PARTIES:

5.	The Plaintiff is a religious body duly registered under the Religious Bodies Registration Act, Cap 68 and is the Lessee of that piece of land described in Approval Notice of Lease dated 23 November 1987 containing an area of 2.9630 hectares situated in Wailea, Raiwaqa, Suva (the "Land").

6.	The Defendants are alleged to be what is commonly referred to as "squatters" in occupation of the Plaintiff’s Land.

THE PLAINTIFF’S APPLICATION:

7.	The Plaintiff wants the Defendants removed from its Land so that it can "comply with the Director of Lands requirements under the Development Lease granted to it for its own development" and has filed this series of applications under Order 113 of the High Court Rules 1988 seeking immediate vacant possession.

THE AFFIDAVITS AND OTHER EVIDENCE:

8.	The Parties filed affidavits in support of their respective claims and the matter proceeded by way of chamber hearing based on the evidence, facts and circumstances deposed to in the affidavit material.

9.	In the course of argument, however, both Counsel made comments from the bar table on matters which I thought were relevant but, unfortunately, not deposed to in the affidavits. However, I have taken those matters into evidence because of their significance and I refer to these below.

10.	The Plaintiff filed an Affidavit in Support of its application sworn by its General Secretary, Arun Padarath (f/n Ram Padarath), deposing that the Plaintiff is the Lessee of the Land and that the Defendants are occupying the Land as "squatters". The Affidavit further says that the "Plaintiff has never leased, given licence or consent to occupy nor has the Plaintiff demanded or received any rent from any of the Defendants" nor has the Plaintiff "authorised anyone on its behalf to collect rent or to lease any part of the Plaintiff’s said land to the Defendants".

11.	Each of the Defendants filed Affidavits in Reply to the Plaintiff’s Affidavit in Support.

12.	I do not intend to go into each and every one of the Defendants’ affidavits, as they all appear to be drawn from the same precedent, but propose to refer to their contents in a collective and summary way only. The Defendants’ affidavits say, for example, that:

a.	Some of them have been in occupation of the Plaintiff’s Land since 1990.

b.	Some of them have spent as much as $10,000 to construct houses with electricity and water services connected to them.

c.	The houses have house numbers.

d.	The Defendants have lived there with their families and know and take the Land as their one and only home.

13.	The Plaintiff filed Affidavits in Response to each of the Defendants’ affidavits, which also appear to be drawn from the same precedent. Significantly, the Plaintiff’s Affidavits in Response failed to specifically answer the Defendants above claims but simply stated that the Deponent, the General Secretary of the Plaintiff, had "no knowledge" of those claims.

14.	Each of the Defendants were given notices to vacate through letters from the Plaintiff’s Solicitors giving them a final 30 days within which to vacate otherwise the Plaintiff would proceed to court for orders for vacant possession. In the case of the Defendant Metuisela Nabou, his letter was dated 8 August 2008. The letter states that several previous notices had been given, the last being dated 15 July 2008, requiring the Defendant to vacate the Land by 31 July 2008. No issue was taken at the hearing as to the validity or effectiveness of these letters to terminate any licence or consent that may have been given and the matter was not argued so I make no finding in respect of them. In any event, for the reasons given below, it makes no difference to the final result.

15.	As I said earlier, in the course of argument, both Counsel informed me from the bar table that the Defendants (with their families numbering about 200) had been in occupation with the knowledge of the Plaintiff and that several meetings had been held with the Defendants and others like Father Kevin Barr and government representatives to resolve this matter without success. Counsel for the Plaintiff assured me that "coming to court was a last resort because community involvement had failed to resolve it".

16.	I am surprised that the Plaintiff’s Affidavits in Support and Reply as well as the Defendants’ affidavits did not mention these meetings, which, in my view, are highly relevant for the court’s decision. I find it hard to believe that the deponent General Secretary had "no knowledge" of the matters deposed to in the Defendants’ affidavits, summarised in paragraph 12 above, or of "community involvement".

17.	Indeed, it could be fatal for the Plaintiff’s application because Rule 3(b) of Order 113 requires the Plaintiff to state in its Affidavit in Support "the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises." The Plaintiff’s Affidavits failed to so state. Such a failure is sufficient, in my view, to dispose of the Plaintiff’s application.

18.	Whatever the reason for the omission, I hope that it was not an attempt to mislead the court in its deliberations and I say no more about it than this. Deponents must read and understand the contents of their affidavits before putting their signatures under oath to their documents. Solicitors need to impress upon their clients that the courts do no take kindly to misleading, and, definitely, untrue statements in affidavits. Whether affidavits are drawn up by solicitors or clerks, the latter practice being totally unacceptable if the solicitor does not verify his client’s instructions and check his clerk’s drafting, it is the deponent that has the ultimate responsibility to ensure that his or her affidavit is accurate and not misleading and certainly not untruthful. But the solicitor must not allow this to happen if he knows of facts or circumstances which would make his client’s affidavit misleading or untruthful by not correcting his client’s affidavit. In our jurisdiction, the solicitor is often the counsel appearing, so counsel may well leave himself or herself open to a suit for negligence without the protection available to lawyers appearing as barristers only.

19.	I am critical of the affidavit material because had I not been made aware of these facts from the bar table I may have passed judgment based on the wrong or insufficient evidence and adversely and unjustly disturbed the lives of at least 200 members of our society who are in most need of justice and protection under the law.

20.	In conclusion, I find that the Plaintiff knew of and acquiesced in the Defendants initial occupation of the Land. 

THE LAW & APPLICATION TO THE FACTS:

21.	Order 113 rule 1 of the High Court Rules, 1988 provides:

"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."

22.	Rules 2, 3 and 4 of Order 113 deal with the form of the application, affidavit in support and service of the originating summons. None of these provisions are in issue here except for Rule 3(b) as mentioned above.

23.	Rule 6(2) of Order 113 provides:

"Nothing in this Order shall prevent the Court from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by writ."

24.	The Plaintiff’s application turns on whether, on the facts, the Defendants had entered into or remained in occupation without the Plaintiff’s licence or consent.

25.	The Plaintiff claims that it did not give any such licence or consent. It even says that it had no knowledge of the Defendants’ occupation.

26.	The Defendants on the other hand claim that the Plaintiff had no "valid lease" and, further, the Plaintiff did not obtain the prior consent of the Director of Lands before instituting these proceedings." This claim cannot be sustained because the lease had been, on the affidavits filed, approved and validly extended and a copy of the Director’s letter of consent was annexed to the Plaintiff’s Affidavit. I therefore dismiss it and find that the Plaintiff has an interest in the Land entitling it to bring this application.

27.	The Defendants also claim that they have a right to stay on the Land because they have an equitable interest in it. They claim that they have the approval of the State to occupy the Land. Counsel for the Defendants therefore submitted that all these matters cannot be resolved summarily and the case needs to go to trial.

28.	He cited Plimmer v Wellington Corporation (1884) 9 App. Cas 699 as supporting his submission that expenditure on the land created an equitable interest in the land. The facts in Plimmer (supra) are very different from the present case, in that there, the Privy Counsel held that the landowner requested the expenditure on the land and benefited from it. I do not think the case assists the Defendants.

29.	On the other hand, Counsel for the Plaintiff submitted that the fact that the Defendants had expended monies and constructed houses on the Land did not create any interest in the Land. He referred me to the Fiji Court of Appeal decision in Chand and Ors v Chandra [2003] FJCA 10; ABU0021U.2002S, a section 169 Land Transfer Act case with facts not dissimilar from the present application, as authority for his submission, where the Court of Appeal said:

"…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."

30.	I do not accept that Chand (supra) does in fact support Counsel’s broad proposition that such expenditure cannot create an interest in land. Indeed, the Privy Council in Plimmer (supra) referred to several situations where such an interest could be created.

31.	Counsel further claims that there might be some form of estoppel in operation preventing the Plaintiff from summarily evicting his clients.

32.	Counsel for the Plaintiff in his submissions referred me to page 1596 of the "White Book" which says in respect of Order 113:

"…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 land or as to wrongful occupation of the land without licence or consent or without any right, title or interest thereto."

33.	Counsel for the Plaintiff submitted that the present application fell within the passage quoted from the White Book so an order for possession should be made. I have to disagree. It is my view that on the affidavit material, it is reasonable to infer that the Plaintiff gave its consent or licence for the Defendants to occupy the Land. Further, the Defendants may have some equitable or other interest in the land. These issues cannot be resolved by affidavit evidence. These matters must go to trial.

34.	My opinion is further supported by the case of Baiju v Kumar [1999] FJHC 19; [1995] FLR 74, cited by Counsel for the Defendants. This is an Order 113 case with facts similar to the present case. At page 4, Mr Justice Pathik, after quoting Order 113, said this:

The question for (the) Court’s determination is whether the plaintiff is entitled to possession under this Order. To decide this the Court has to consider the scope of the Order. This aspect is covered in detail in The Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:
 
"This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers." 
 
As to the application of this Order it is further stated thus:
 
"The application of this Order is narrowly confined to the particular circumstances described in r.1. i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593."
 
This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:
 
"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 on the land without licence or consent and without any right, title or interest thereto."
 
I have carefully considered all the affidavit evidence adduced in this case and the written and oral legal submissions from both counsel.

... 

The facts do not reveal that the defendant is a trespasser on the land. He continued living there as a licensee ...

On the facts of this case, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.

Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others [1972] 3 All E.R. 629 squatters and trespassers are defined as:
 
"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 ....."       
 
There Goulding J. said that:
 
".....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession....."
 
Another definition of "trespasser" is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:
 
"A trespasser is a person who has neither right nor permission to enter on premises".
 
Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] A.C. 877 at 904:
 
"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".
 
I agree with [Counsel for the defendant] that the defendant’s father and his children gained possession of the land only after the plaintiff had given his consent in or about 1970 and for that matter, the physical fact of the defendant’s occupation is that of acquiescence on the land. I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson (1840) 12 Ad. & El 624 where he said:
 
"..... A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner...."

35.	The facts of the present application, in my view, do not make the Defendants trespassers or squatters. As in Baiju I find that the Plaintiff’s application fails.

36.	Further, the conclusion that I have reached is supported by dicta in a case cited by Counsel for the Plaintiff, namely: Bristol Corporation v persons unknown [1974] 1 All ER 593. The passage that was quoted by Mr Justice Pathik in Baiju (supra) on the application of Order 113 came from the judgment of Pennycuick V-C in Bristol Corporation (supra) at page 596i, where His Lordship said:

"Let me say at once that this order would no doubt not be utilised nor an order made under it in the case envisaged in the note, namely, where there has been a grant of a licence for a substantial period and the licensee holds over after the determination of the licence." (emphasis added).

37.	Counsel for the Plaintiff also referred me to Department of the Environment v James and Others [1972] 3 All ER 629 where the English Court ordered immediate eviction. This case and Bristol Corporation (supra) can be distinguished on their facts. In Bristol Corporation, the defendants were trespassers. In Department of the Environment, (supra) the defendants had been in occupation under licence only for a short period of time, some four months.

38.	As in Baiju, I could either make an order dismissing the Originating Summons or order that this action be entered for trial like a writ action.

39.	Rule 8 of Order 113 provides:

"The judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order."

40.	Rule 8 gives me a discretion as to what order I make. Either way, a statement of claim has to be filed. Having regard to the parties involved I do not wish to add any more expense to the litigation so I will order that this matter proceed as if it were an action commenced by writ of summons.

41.	The naming of the various defendants is problematic so I give leave to the Plaintiff to name the defendants in the statement of claim to be filed as follows: Name all the defendants currently named in the Originating Summonses with the additional words "and all persons unknown but living on or in occupation of the Plaintiff’s Land". In this way, if the Plaintiff decides to continue with its eviction action, whatever order that is made will be binding on all persons, named or un-named, living on or in occupation of its Land.

42.	I urge Counsel to explain to their respective clients, especially the Defendants, the meaning and effect of this Ruling so that there is no misunderstanding. The Defendants should not take comfort in this Ruling and think that they can stay on the Plaintiff’s Land forever. That is a matter yet to be decided by the court in a full hearing at a future date.

43.	Finally, I do wish to draw the attention of both Counsels and the parties to dicta by the Fiji Court of Appeal in Chand (supra) at page 8, as perhaps a better way of resolving this matter:

"We certainly agree with the sentiments which are expressed inferentially in the appellants’ submissions that the cases would be well settled provided that can be done on terms which are fair and just. But we can do nothing about this; it is a matter for the parties. We do urge them, however, to see what can be done about the matter. Perhaps the appointment of a suitable mediator independent of the interests of both parties might be of assistance."

44.	I will not set a time within which the Plaintiff is to file its Statement of Claim so as to give the parties time to pursue settlement as suggested by the Fiji Court of Appeal or otherwise if they so wish. However, I will not leave the time open ended so I will give the Plaintiff liberty to file its Statement of Claim within 6 months from the date of this Ruling.

COSTS:

45.	As neither party has won and there is the likelihood of further court and legal costs involved if the Plaintiff pursues the action, I make no order as to costs.

ORDERS:

46.	I therefore make the following Orders:

a.	This action is to continue as a Writ action.

b.	The Plaintiff is at liberty to file its Statement of Claim at any time within the next 6 months from the date of this Ruling.

c.	Should the Plaintiff file its Statement of Claim, the action will take its normal course and the Rules of the High Court shall apply as if the Statement of Claim is filed pursuant to a Writ of Summons.

d.	The parties are at liberty to apply on 7 days notice.

e.	There is no order as to costs.

f.	This Ruling applies to all Civil Actions HBC 346 – 351 of 2008 which are now consolidated as one action.

Sosefo Inoke
Judge