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Nasinu Land Purchase and Housing Co-operative Ltd v Ratulevu [2010] FJHC 260; HAC099.2010; HBC103.2010; HBC100.2010 (22 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Actions HBC 99 of 2010; HBC 103 of 2010;HBC 100 of 2010.

BETWEEN:

NASINU LAND PURCHASE AND HOUSING CO-OPERATIVE LIMITED
a duly incorporated company having its principal place of business at
1st Floor, Suite 7A, 68 Suva Street, Suva in the Republic of Fiji Islands.
Plaintiff

AND:

APETE RATULEVU
SUNDARI KUMARI
MARAIA SEINI VODO
(all of Laqere, Stage 10, Nasinu in the Republic of Fiji Islands).
Defendants

Before : Master Anare Tuilevuka

Counsels: Mr. Ram Chand & Company for the Plaintiff
: Defendants in person

Date of Hearing: 16th July, 2010
Date of Ruling: 22nd July, 2010

RULING
(Section 169)

INTRODUCTION

[1] This is my joint ruling on all three cases listed above namely HBC 99 of 2010, HBC 103 of 2010 and HBC 100 of 2010. The order in which the defendants’ names appear on the title corresponds to the order of case number on the top right hand corner of the same. Incidentally, there are other section 169 proceedings pending in this Court by the same plaintiff against other defendants occupying the same land.

[2] Nasinu Land Purchase and Housing Co-Operative Limited ("NLPHCOL") is the registered proprietor of all that land comprised in Certificate of Title No. 12468 on DP No. 3130 (Laqere Stage 10). This is not in dispute.

[3] The land comprises 326 (three hundred and twenty six) acres and 2 (two) roods. It is an undivided and undeveloped piece of land. For quite some time, people have been "squatting" on the land.

[4] What is before me is NLPHCOL’s section 169 application to evict these squatters.

[5] Incidentally, I use the term "squatting" in this case bearing in mind the comments of Mr. Justice Coventry in Australian Conference Association Limited v Sela [2007] FJHC 62; Civil Action 0357 of 2005 (31 January 2007) that:

"There is no legal definition of a "squatter". However, it has come to mean a person who enters onto another's land without any right to do so and remains there or who was lawfully on that land but later loses any legal right to be there. In the case of most squatters they know they have no right to be on the land or are there without caring whether or not they have such a right. The issue is worldwide and stems from increasing population numbers, shortage of land, loss of their own land by squatters and economic necessity. There are, of course, those who squat on land even though they could reasonably live somewhere else. The law in Fiji provides for the summary removal of squatters on land through section 169 Land Transfer Act Cap.131 and Order 113 of the High Court Rules". (my emphasis)

[6] In this case before me, all the defendants are 'squatters’. It is clear from their evidence that they knew they had no right to be on the land. All they have told me on oath in Court, is that they need time to vacate the land.

[7] In the case against Apete Ratulevu (HBC 99 of 2010), he said he is willing to give vacant possession. He also said that he knows that the land belongs to NLPHCOL. He said he is paying off a piece of land in Davuilevu Housing and needs two years to relocate.

[8] In the case against Sundari Kumari (HBC 103 of 2010), she appeared on first call on the 7th day of May 2010 but did not appear on the date appointed for hearing. No affidavit in opposition has been filed on her behalf despite having been given sufficient time to do so.

[9] In the case against Maraia Seini Vodo (HBC 100 of 2010), she appeared on the morning of the hearing date but did not turn up later that same afternoon for hearing. She had advised me on an earlier occasion though that she would have difficulty vacating as she is a widow and living alone.

THE LAW

[10] As stated above, NLPHCOL is the registered proprietor.

[11] The defendants then have to 'show cause’ why they should not give up vacant possession.

[12] Sections 171 and 172 of the Land Transfer Act provide 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."

[13] The Supreme Court of Fiji in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said as follows on the requirements of section 172:

"Under Section 172 the person summoned 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."

CONCLUSION

[14] NLPHCOL is the last registered proprietor of Certificate of Title No. 12468 on DP No. 3130.

[15] Neither of the defendants has given evidence showing a right to possession of whatever portion of CT 12468 on DP 3130 they are currently occupying.

[16] There is no complicated question of fact and or legal inferences involved in these cases. NLPHCOL is clearly the last registered proprietor. It is entitled to apply for vacant possession.

[17] The three defendants, namely Apete Ratulevu (HBC 99 of 2010), Sundari Kumari (HBC 103 of 2010) and Maraia Seini Vodo (HBC 100 of 2010) have not 'shown cause' to my satisfaction why they should not give vacant possession of the property as required under section172 of the Act.

[18] It is therefore ordered that they do, within two months of the date of this Ruling, vacate CT 12468 on DP 3130. I also order costs in the sum of $350-00 (three hundred and fifty dollars) against each defendant to be paid to NLPHCOL within two months from the date of this Ruling.

Anare Tuilevuka
MASTER

At Suva
22nd July 2010.