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Prasad v Chand [2010] FJHC 337; Civil Action 96.2010 (29 July 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 96 of 2010

BETWEEN:

DHANKUAR PRASAD
(f/n Deo Dutt) of House No. 67, Lot 26, Mokosoi Road,
Kalabu Stage 2, Nasinu in the Republic of Fiji Islands.
Plaintiff

AND:

UMESH CHAND
(father’s name unknown to the plaintiff) of Lot 26, Mokosi Road,
Kalabu, Stage 2, Nasinu in the Republic of Fiji Islands.
Defendant

INTRODUCTION

[1]. Before me is an Originating Summons filed on 09th of April 2010 by the plaintiff pursuant to section 169 of the Land Transfer Act (Cap 131) seeking an order that the defendant do attend Court to show cause why he should not give up vacant possession to the plaintiff of the property occupied by the defendant and his family being Lot 26 on DP No. 6909 situated at Mokosoi Road, Kalabu, Stage 2, Nasinu.

[2]. The plaintiff is the registered proprietor of a half share of the property in question. He late husband was the owner of the other half share of the property. The plaintiff is now the administrator of the estate of her late husband.

[3]. Apparently, the plaintiff was away in Sydney, Australia from 15th May 2009 to 14th November 2009 to visit her daughter. Before the plaintiff left Fiji on that trip, she entered into an arrangement with the defendant to occupy the property whilst the plaintiff was away overseas and to vacate the property upon the plaintiff’s return to Fiji. As part of the arrangement, the defendant was not to pay any rent.

[4]. Upon the plaintiff’s return to Fiji on 14th November 2009, she immediately, she requested the defendant to vacate the property. The defendant however refused and stayed put. When the defendant remained mute after several requests, the plaintiff instructed her lawyers to serve on the defendant a Notice to Vacate dated 05th March 2010. This Notice was in fact served on the defendant on the 22nd day of March 2010.

[5]. I gather from the plaintiff’s affidavit that when the plaintiff returned from Australia, she occupied a certain portion of the house whilst the defendant and his family occupied a certain other portion.

[6]. The notice that the plaintiff caused to be served on the defendant was not well received by the defendant. It resulted in a strife in their relationship. According to the plaintiff, the defendant became abusive to her and would swear at her in front of his wife and children. The plaintiff also says that the defendant would deny her access to the bathroom and toilet which she had to share with the defendant and his family. The plaintiff also says that the defendant had many friends who would visit him at the ouse and drink grog at night and play loud music.

[7]. The affidavit in opposition filed for the defendant is worded in a tone as if it was written by a third person describing what took place between the plaintiff and the defendant. According to him, he had been a rent-paying tenant of the plaintiff for some time well before she left for Australia. He said he paid rental at the rate of $150 per month. The defendant also deposes in his affidavit that he did demand of the plaintiff that he would only vacate of the plaintiff paid him the sum of $5,000. Why he demanded so is not explained at all.

[8]. I am to understand on the date appointed for hearing of this application that the defendant has since vacated the property with his family although he still keeps the key and would now and again return to the property.

[9]. I do not believe that the defendant was a rent-paying tenant. Even if he was, it does nothing to undermine the plaintiff’s right as the last registered proprietor to demand vacant possession vide a Notice to Vacate. From the time the plaintiff returned from Australia and had demanded vacant possession, the defendant was therefrom a “squatter” on the property.

[10]. I use the term “squatter” 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)

[11]. In this case, it is clear from the defendant’s conduct in having vacated the property that he knew he had no right to be in occupation of the house once the plaintiff had issued the Notice to Vacate.

LAW

[12]. Section 169 of the Land Transfer Act (Cap 131) provides as follows: -

“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.”

[13]. That the plaintiff is the registered proprietor of the property is not disputed. Under sections 171 and 172 of the Act, the defendant has to 'show cause' why he should not give up vacant possession.

CONCLUSION

[14]. The defendant's explanation as to why he refuses to give vacant possession of the property in question is not sufficient. He has no right to continue in occupation of the property.

[15]. Accordingly, I order that the defendant do forthwith within 21 days of the date of this ruling give vacant possession of the property to the plaintiff plus costs in the sum of $350 in favour of the plaintiff to be paid in 14 days of the date of this ruling.

Anare Tuilevuka
MASTER

At Suva
29th day of July 2010.