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Jims Enterprises Ltd v Mara [2010] FJHC 35; HBC139.2009 (5 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 139 Of 2009

BETWEEN:

JIMS ENTERPRISES LIMITED
PLAINTIFF

AND:

LUKE RAVULA MARA
1ST DEFENDANT

AND:

APOLOSA MARA
2ND DEFENDANT

AND:

AKOSITA TAUBALE
3RD DEFENDANT

AND:

SALOTE NIUTABUA
4TH DEFENDANT

AND:

AKOSITA TAUBALE RUSA
5TH DEFENDANT

AND:

SAILOSI BALEISUVA MARA
6TH DEFENDANT

AND:

TIKOMAIHAWAII MARA
7TH DEFENDANT

AND:

TARANAIVINI GUIVALU
8TH DEFENDANT

AND:

JOSAIA TOKARUA TAMANIVALU
9TH DEFENDANT

AND:

MANUELI RATULEVU
10TH DEFENDANT

AND:

KORONI TUIVAGA & MEREWALESI TUIVAGA
11TH DEFENDANTS

Counsels: Mr. G. O’ Driscoll for the Plaintiff.
Mr. S.R. Valenitabua for the Defendant.

Date/Place of Hearing: Monday, 21st September, 2009 at Suva.
Date/Place of Oral Judgment: Friday, 11th December, 2009 at Suva.
Date/Place of Written Judgment: Friday, 5th February, 2010 at Suva.
Judgment of: The Hon. Justice Anjala Wati, Acting Judge of the High Court.

___________________________________________________________________________

JUDGMENT OF THE COURT

LAND TRANSFER ACT – application under section 169 of the Land Transfer Act for vacant possession of the property-defendants raise the issue that they have equitable rights for possession in that they have been in occupation of the property for many years and that the previous proprietors have not made any attempts to remove the defendants from the property hence by conduct they have allowed the defendants the right to occupation and possession-the issue of fraud has also been raised to indicate that the title of the plaintiff has now become indefeasible-the plaintiff has been alleged to have voluntarily ignored the existence of the defendants on the property hence wilful blindness on plaintiffs part leading to fraud-the defendants also argued that they have a right to apply for vesting order which is equivalent to the right of possession-right to remain in occupation not shown-order for vacant possession granted with stay of the orders until 30th January, 2010 to enable the defendants to relocate.

___________________________________________________________________________

The Case Background

1. On the 28th day of May, 2009, the plaintiff filed an application by way of a summons for ejectment seeking an order for the defendants to show cause as to why an order for vacant possession should not be made against them.

2. The application is supported by an affidavit filed on the same day.

3. The summons for ejectment describes the property in respect of which vacant possession is sought to be "situated at Naivitavaya, Laucala Beach Estate in Nasinu being part of that piece and parcel of land containing three acres three roods thirty seven perches and six tenths of a perch be the same a little more or less and situated in the district of Suva in the island of Viti Levu and being Lot 1 on Deposited Plan No. 4533 and comprised in Certificate of Title No. 19755."

4. An affidavit in reply was filed on behalf of all the defendants on the 24th day of June, 2009.

5. An affidavit in response to the reply was filed by the plaintiff on the 8th day of July, 2009.

6. This matter was given an urgent hearing date upon the request of the plaintiff. An oral ruling on the application was delivered on the 11th day of December, 2009. I now publish the written judgment.

The Law

7. The application is brought under section 169 of the Land Transfer Act which permits the registered proprietor to bring a summary action against the occupant of the land to show cause why vacant possession of the land should not be delivered.

8. Under section 172 of the Land Transfer Act, the defendants have to prove to the satisfaction of the judge that they have the right to possession of the land.

9. I will have to thoroughly outline and examine the affidavit evidence of both the parties as well as the submissions made on behalf of the parties to see whether the defendants have satisfied me that they have a right to occupy the property.

Plaintiffs Affidavit Evidence

10. The plaintiff through its affidavit in support stated the following:-

a. Notices to Quit dated 19th November, 2008; 4th May, 2009 and 14th May, 2009 was personally served on the defendants’ solicitor on the 13th and the 14th day of May, 2009. The notices were served on the defendants’ solicitor because the solicitor had through a telephone conversation with the plaintiffs solicitor on the 13th day of May, 2009 agreed to accept the notices on behalf of the defendants.

b. On 9th April, 2009 the defendants’ solicitor wrote to the plaintiffs solicitor advising him that the defendants would not vacate the property unless court orders for eviction were obtained against them. The defendants continue to occupy the property wrongfully and unlawfully.

c. The same property had been occupied by one Marika Vosawale Mara and Catherine McGoon Mara. The High Court had on the 28th day of March, 2008 in High Court Civil Action No. HBC 106 of 2004 granted an order for eviction against these two persons.

d. The said land is mortgaged under Bank of Baroda and the plaintiff is making repayments for the loan without being able to generate any income from the land because of the continued occupation of the property by the defendants.

Defendants Affidavit Evidence

11. The defendants have deposed the following to justify why an order for vacant possession should not be made against them:-

a. That the property occupied by the defendants is a part of a greater piece of land known as Naivoco. From the time of the defendants’ occupation the piece of land has been known as Naivitavaya settlement. The land Naivoco was originally owned by Mataqali Nawavatu of Yavusa Matanikorovatu of Kalabu, Naitasiri. The head of Yavusa Matanikorovatu at the material time, Ratu Ifereimi Kubukawa gave the land known as Naivitayava Settlement to Ratu Kolinio Mara a.k.a Ratu Kolinio Osekula to occupy with his family and blood relatives. The land was given under a Deed of Land Cession signed on the 4th day of November, 1967.

b. The defendants have since 1967 occupied this Land known as Naivitavaya settlement. The occupation was since the Laucala Beach Estate was developed and when the settlement land was literally on an island. The defendants have occupied the land for various years. Due to the development of Laucala Beach Estate and the movement of soil by the machines, the island became adjoined to the main land and was included with the Laucala Beach Estate Development by the surveyors. It was then when Naivitavaya settlement purportedly became part of Laucala Beach Estate and they became classified as squatters. The defendants deny that they are squatters on the property.

c. Naivitavaya Settlement, when it was first occupied, was only accessible by boat from current RFMF firing range at Vatuwaqa to Naivitavaya.

d. All the defendants are still in occupation of the Naivitavaya Settlement and their occupation is not wrongful or unlawful.

e. The land Naivitavaya settlement is now purportedly part of Certificate of Title number 14761 being Lot 1. A new certificate of title was issued for the said Lot 1, the title being CT 19755 and having an area of 3 acres, 3 roods, and 37.6 perches.

f. CT 14761 was part of Native Grant No. 8 A and Crown Grant No. 617 and known as Naivoco (part of). Crown Grant No. 617 was owned by Sophie Williams.

g. By Request N. 132552, the land derived from N. G 8 A and C. G. 617 was registered in the name of American Investment Limited.

h. The land comprised in CT 14761 was then subdivided. Various partial transfers were made. One of these partial transfer was partial transfer No. 174974 which was registered on 19.02.80. This partial transfer was in favour of Hidalgo Plantation Limited and a new title number C.T. 19755 was issued in Hidalgo Plantations Limited’s name.

i. Hidalgo Plantations Limited was a company purportedly having its registered office at Port Vila in the New Hebrides in 1980. A search carried out at the companies Office in Port Vila disclosed that a company named Hidalgo Plantations Limited was incorporated in Port Vila in 1974 and was struck-off the Register of companies in 1976.

j. From Hidalgo Plantations Limited the land was transferred to Merit Timber Products Limited. From Merit Timber the property was transferred to Burgess (Fiji) Limited then to Vivrass Holdings Limited and finally to Jims Enterprises Limited. The period and length of ownership is purported to be as follows:-

- Mrs Sophie Williams/American Investments – October, 1881-April, 1974 - ( 93 years)

- American Investments/Hidalgo Plantations – April, 1974 – February, 1980 - (6 years)

- Hidalgo Plantations Limited/ Merit Timber Products – February, 1980 – October, 1982 - (2 years)

- Merit Timber Products/Burgess Fiji Limited – October, 1982 – August, 1994 - (12 years)

- Burgess Fiji Limited/ Vivrass Holdings limited – August, 1994 – July, 2003 - (9 years)

- Vivrass Holdings Limited/Jims Enterprises – July, 2003 – December, 2003 - (5 months)

k. Burgess (Fiji) Limited sold and transferred the property while it was under liquidation.

l. The occupation of the land began in 1967. At that time the piece of land was an island separated from the main land by water and mangrove swamps. To make the piece of land more habitable it was filled up, some swamp and mangroves were buried and the area was dried.

m. The defendants have occupied the property for a number of years. They are therefore entitled to apply to the Registrar of Titles for a vesting order in their favour. The defendants have a right to continue in occupation since they have all occupied the property for more than 20 years(except for the 10th defendant) and they also have a right for vesting orders to be made in their favour.

n. There is fraud in the transfers from Hidalgo Plantations Limited to the subsequent owners in that Hidalgo Plantations Limited had ceased to exist as a company when it transferred the property to Merit Timber Products. The transfer was done by Power of Attorney and as such that transfer and subsequent ones are invalidated. The power of attorney in favour of Mr. Benefield was not signed by Hidalgo Plantations Limited whether by its directors and/or secretary. It was also not stamped by the company seal. There is also fraud when Burgess (Fiji) Limited transferred the property while under liquidation.

o. The defendants have an equitable right over the property.

p. The plaintiff and its predecessors knew that the defendants were in occupation of the property and still went ahead and purchased the same. There was wilful blindness and voluntary ignorance on the plaintiffs and its predecessor’s part and their action also amounts to fraud.

q. The defendants have built their dwelling house on the property, a church has been built as well, and electricity and water has been connected to the property.

r. None of the predecessors have attempted to remove the defendants from the property. There was one attempt by Hidalgo Plantations Limited to make Ratu Kolinio Mara to give up vacant possession vide Civil Action No. 694 of 1982 between Hidalgo Plantation Limited v. Koli Mara but that attempt was unsuccessful.

s. Plaintiff must be stopped from evicting the defendants from the property. The balance of the property can be developed for the trucking business.

t. Justice Jitoko had in Civil Action No. HBC 106 of 2004 between Jims Enterprises Limited v. Marika Vosawale Mara & Catherine McGoon Mara had said the following:-

"In light of the claims of development and reclamation work undertaken by the inhabitants of ‘Naivitavaya’ settlement over the years, it would be advisable, before the plaintiff decides to take further action against others on the land, that a re-survey be done to ascertain the exact boundary of Lot 1 DP 4533 vis a vis the homes of the settlers"

The plaintiff has failed to carry out a survey as per the above directions.

Plaintiffs Affidavit in Response

12. The plaintiff responded to the affidavit filed on behalf of the defendants. The following were raised:-

a. The issues raised in the affidavit filed on behalf of the defendants have already been canvassed and decided upon by his lordship Justice Jitoko in Civil Action Number HBC 106 of 2004.

b. The plaintiff is the legitimate owner of the subject land. The fraud raised against the previous owners shall not affect the plaintiffs legitimate title.

c. Transfers of the various properties were proper.

d. Hidalgo Plantations Limited had also filed an action for ejectment in 1982 and obtained an order for ejectment.

e. The issue of power attorney is not proper as the power of attorney was registered and valid.

f. As soon as the plaintiff became the registered proprietor, eviction action was filed in 2004.

g.Application for vesting order is not lodged as yet with the Registrar of Titles. The defendants have been in illegal occupation for so long as there was already an order for eviction against them. They cannot rely on their illegal occupation for so long to justify their stay.

h. Plaintiff is a bona fide purchaser for value and they have also carried out a survey in 2008 showing the structures of the land.

The Submissions

13. The plaintiffs counsel Mr. G. O’ Driscoll submitted that the plaintiff is the registered proprietor of the land in question and as such the right to bring an action for vacant possession under section 169 of the Land Transfer Act.

14. An order for vacant possession was made in respect of the same land against Marika Mara and Catherine Mara in High Court Civil Action No. 106 of 2004.

15. The issues in this matter have been previously canvassed in action number 106 of 2004 and the 1982 action. The only new issue is that of fraudulent transfer of the land. However there is no fraud alleged on the current plaintiff. The plaintiff is a bona fide purchaser for good value.

16. The eviction orders were made against many of the current defendants by consent. The consent orders are as good as orders pronounced after hearing.

17. In Civil Action 694 of 1982 order for vacant possession was made against all the defendants and Writs of Possession were issued against all the squatters as well. The defendants have very conveniently forgotten about the orders made against them. The action for eviction was issued by a different entity but the substance of the case does not differ. The defendants are raising the same argument.

18. The plaintiff has identified the portion of the land occupied by the defendants. There is no need to carry out the survey as claimed by the defendant.

19. Estoppel cannot be pleaded against the current plaintiff.

20. Gifts cannot create legal rights. At best the rights would be equitable but it cannot defeat the rights of the registered proprietor. Such rights cannot be greater than the person creating the rights. The defendants have shown no evidence as to what these rights are or may be. The defendants have also not shown that the plaintiff had knowledge, actual or constructive, of the existence of their alleged interests in the property. There is nothing in the title document which point to the defendants or their predecessors as having any interest or rights in respect of the said property.

21. There are bare allegations of fraud. There is no evidence to support the allegations. No complicated questions of fact therefore arise. The application for 169 is therefore appropriate.

22. Even if the defendants have any rights pursuant to their allegations of fraud then their right lies against some other people and not against the current plaintiff.

23. The notice of trust or unregistered interest in existence does not of itself connote fraud upon the party obtaining interest.

24. The plaintiff has an indefeasible title in that it is the registered proprietor of the piece of land, because no fraud has been established, the defendants are not claiming an estate or interest under a prior instrument registered under the Land Transfer Act, this is not a case of wrong description of land or boundaries, there are no reservations, exceptions, conditions or powers under the original grant in favour of the defendants, and the defendants have not taken any steps to avail themselves of the provisions of the Land Transfer Act.

25. The defendants are just attempting to create complicated questions of fact when none exist. They seem to imply that they are not wholly in occupation of the plaintiffs property. In this case there is no controversy that the plaintiff is the registered proprietor. There is also no controversy that the defendants are in occupation of the plaintiffs land.

26. If the defendants have lived on the property for so long then why have they not availed themselves to a vesting order in their favour under the Land Transfer Act.

27. The defendants counsel also made submissions on behalf of the defendants.

28. It was submitted that except for the 10th defendant, all the other defendants have occupied the land in question for more than 20 years. No attempts have been made by the consecutive registered proprietors to have the defendants removed from the property. There were actions taken against Kolinio Mara and Marika Vosawale Mara and Catherine Mara. The particulars of the case are:-

- Supreme Court of Fiji Action No. 698 of 1982 between Hidalgo Plantations Limited v. Ratu Koli Mara.

- High Court of Fiji Action No. 106 of 2004 between Jims Enterprises Limited v. Marika Vosawale Mara & Catherine McGoon Mara.

29. The plaintiff is the first registered proprietor to take this ejectment action against the defendants in respect of CT. 19755. Due to the length of time of occupation and the failure by the registered proprietors to remove them from the land, the defendants have a right to occupy the said property.

30. The defendants also have the right to apply for the vesting order. A right to apply for the vesting order is equivalent to the right to possession of the land.

31. Due to fraud on part of the plaintiff his title is defeasable. The plaintiff saw the defendants in occupation of the property yet it went ahead to purchase the same. The plaintiff is guilty of wilful blindness and voluntary ignorance and thus guilty of fraud.

32. The defendants have an equitable right over the property. The defendants have built on the property, had water and electricity connected to the property. They have spent time and money on the property. The proprietors did not interfere then. The plaintiff is bound by the actions of the proprietors as well since the property was bought when the defendants were is occupation.

33. Lot of conflict has been raised in this case on issues of fact and law and the 169 application is therefore not suitable.

The Determination

34. At the outset I must say that the plaintiff has vide Civil Action Number HBC 106 of 2004 obtained an order for vacant possession in the matter. The issues raised in that case are similar to the issues raised in this case.

35. I am of the view that the issues have been thoroughly canvassed by his Lordship Justice Jitoko in Civil Action Number HBC 106 of 2004. I fully concur with the decision of his Lordship Justice Jitoko.

36. His Lordship had in fact suggested that survey plans be carried out before further filing of similar proceedings against the other defendants. That suggestion did not form part of the order and I do not think that the suggestion was or is a pre-requisite to the plaintiff filing the application against the remainder of the defendants on the property. In any event a survey plan carried out in the year 2008 does indicate the structure of the land in dispute. The survey plan is attached to the affidavit in response filed on behalf of the plaintiff.

37. I must briefly say that the issue of fraud has not been established against the plaintiff to make the title indefeasible. The plaintiff is a bona fide purchaser for value and all these issues on fraud against other proprietors will not assist the defendants.

38. The predecessors and the plaintiff cannot be held to have committed fraud by allowing the defendants to stay on the property. There is enough evidence that there were previous actions to remove the defendants from the property. Orders for vacant possession were granted as well. This should have been enough to warn the defendants that they are treated as illegal occupants and not wanted on the property. To stay on the property despite knowing the intention of the registered proprietors and then blaming the owners for letting them stay cannot assist the defendants. If they stayed for so long with the knowledge that they were not wanted and they honestly believed that they had a right to apply for a vesting order, then why did they remain inactive for so long.

39. I do not agree that the defendant’s right to apply for a vesting order in this matter can be classed as a right to occupy the property. The court had already declared that the defendants did not have a right to be in possession of the property. The defendants stayed on the property in breach of the orders. Now they want the court to legalise their stay after they have successfully breached the orders of the court. I do not accept that the defendants can succeed in this manner.

40. On the aspect of wilful blindness on the part of the plaintiff I must say that because the plaintiff purchased the property with the existing occupants, but his actions cannot be classed as wilful blindness leading to fraud. The plaintiffs immediate action to file vacant possession in 2004 indicates that the property was bought and the intention was always there to remove the defendants. There was never any intention on the part of the plaintiff to let the defendants continue occupation. If then the plaintiff would not have filed eviction proceedings immediately.

41. I do not need to discuss the other issues that have been raised as his Lordship Justice Jitoko has fully and adequately dealt with them. His Lordships judgment and in particular the following excerpts now form part of my judgment.

"...the plaintiff is a bona fide purchase for value of the land, having obtained a good title in December, 2003. The defendant appeared to infer fraud, which is the only way the plaintiffs indefeasible title could be defeated. The court is however satisfied that the defendant’s have not relied on this argument to support their claim. In any case, there is no evidence before me to support such claim against the plaintiff, as would bring section 40 of the Act into play.

Court’s Consideration

The defendants under section 172, have to show to the satisfaction of the Court of "a right to the possession of the land". Obviously it has to be a right recognised by law, be it legal or equitable.

In his two affidavits before the Court, Marika Mara claims that he and his family have been in continuous occupation of the land since 1967. Their claim and legal occupation to the land, he argues, arise from the "deed of cession" entered into between his father Ratu Kolinio, and Ratu Ifereimi Kubukawa, of Yavusa Matanikorovatu, Kalabu. This Fijian traditional agreement was for valuable consideration in the form of "tabuas" presented to Yavusa Matanikorovatu on two (2) separate occasions. The "deed" identified the land as "Naivitavaya" and including the areas along the bank and mouth of the Samabual river "along the high water mark at high tide". This particular piece of land now comes under Lot 1 DP 4533 in the 1977 Harrison & Grierson sub-division.

The defendants added that not only have they been in continuous occupation for now over 40 years, they have also reclaimed swamp lands, built extensively on the piece of land, including substantial permanent dwelling houses and community centres including a church. Given the history of their occupation and their efforts in developing the land, the defendants claim that they have inherited a proprietary interest in the land. This in turn creates proprietary estoppel which acts as a bar to the plaintiff from evicting the defendants from the land.

The doctrine of proprietary estoppel is applicable where, according to Handbury and Mandsley Modern Equity (11th Ed) pp 736 – 737:

"One party knowingly encourages another to act, or acquiesces in the other’s action, to his detriment and in infringement of the first party’s rights. He will be unable to complain later about the infringement, and may indeed be required to make good the expectation which he encouraged the other party to rely on. Unlike other estoppels therefore, this doctrine may, in some circumstances, create a claim and an entitlement to positive proprietary rights; in others, it can operate negatively, or can produce a compromise situation appropriate to the particular circumstances".

Snell’s Equity (13th Ed), at para 39 – 12 states that:

"Proprietary estoppel is one of the qualification to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".

Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, at p.638.

"There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity".

Megarry J in In re Vendervell’s Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,

"... the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call A) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A’s mistake, and nevertheless dishonestly remained willfully passive in order to profit by the mistake".

In this case, neither the plaintiff nor this Court can argue or find against the fact that the defendants had incurred expenditure in the development of the land at"Naivitavaya". Since the land was first "ceded" in 1967, the defendants have built a village settlement on the land and would have expended resources to build and improve the land. There, no doubt, was also the existence of the defendants’ mistaken belief that the land was controlled by Yavusa Matanikorovatu. As it turned out, this was not the case. The land had been sub-divided in 1977 and owned by a succession of Companies ending with the present registered proprietor which acquired it at the end of 2003.

Was there conscious silence on the part of the registered proprietor in allowing the defendants to continue with their occupation while at the same time improving the property? While the plaintiff could be said to be implicated, willful passivity may in fact apply to him through its predecessors in title (Hopgood v. Brown [1955] EWCA Civ 7; [1955] 1 WLR 213; Jones (A.E.) v. Jone (F.W.) [1977] 1 WLR 438). The evidence before me suggests otherwise.

It is apparent that following the sub-division of 1977 and the subsequent transfer of the land known as Lot 1 on DP 4533 to Hidalgo Plantations Limited, strenuous efforts were made by the Company, the registered proprietor, to evict the defendants from the property. Civil Action No. 694 of 1982, against the first defendant; was one of the multiple S. 169 actions filed against the alleged illegal settlers on the land. It was agreed by the parties that one application was to proceed and be representative of all other actions, and the result to bind others. CA 694/82 was decided in the registered proprietor’s favour on 25 January 1983. It is important to emphasise that the decision of the court was with the consent of the 1st defendant, Marika Mara. It states:

"UPON READING the Summons of Ejectment dated the 27th day of July, 1982 and the affidavit of David Lee Briggs of Suva, Company Director, and the affidavit of Finau Rakai of Suva, Surveyor, sworn on the 25th day of June, 1982 and 8th day of October, 1982 respectively filed herein, AND UPON HEARING Mr. J.G. Singh of Counsel for the Plaintiff and Mr. S. Matawalu of Counsel for the Defendant, IT IS ORDERED by consent that the Defendant do give to the Plaintiff vacant possession of all that piece of land known as Lot 1 on DP 4533 and being the whole of the land comprised in Certificate of Title No. 19755 not later than 31st day of March 1983".

Writ of Possession against the 1st Defendant was subsequently issued out of the Court on 22 June 1983. According to the evidence before me, the registered proprietor was prevented from proceeding further by the intervention of the Ministry of Fijian Affairs and Rural Development, acting on behalf of the defendants. There was also lobby groups for the settlers who approached the landlord solicitors pleading the defendants’ case. All of these interventions, as far as the Court can ascertain from the evidence before it, were premised on the clearest of understanding that the defendants did not possess any legal rights to remain on the property. Proposals for them to be allotted their own piece of land under lease from the landlord were to be prepared by the defendants and put to the landowner. This however did not eventuate, and in the meantime, the land has changed ownership three times.

In the circumstances the Court has outlined above, it surely cannot be said that the registered proprietor was guilty of willful passivity and/or conscious silence in allowing the defendants to continue their occupation of the land unchallenged. It had successfully obtained a Court Order for vacant possession by 31 March 1983. That this was not enforced because of intervention of third parties, including Government, cannot by any stretch of imagination, be interpreted as amounting to willful passive conduct by the registered proprietor. It had made it known, by bringing the action for vacant possession, that it objected to the defendants’ presence and development of the property. The defendants in this case, have failed the test of showing "strong cogent evidence" that the registered proprietor knowingly encouraged them to stay on the land and build on it.

Similarly the defendants’ claim that they had continuously resided uninterrupted on the land for over 37 years, is legally incorrect. The 1982 section 169 proceedings decided that the defendants were illegal tenants on the land and ordered them to vacate it. Their continuing physical presence on the land, following the Court’s Order, does not grant them the same legal status as would extend to one whose occupation is not interrupted by successful legal challenge to their presence, as happened in this case. The Court finds no merit in this claim. In the end I do not think that the contention by the defendant is made out. There is no representation by the defendant or its predecessors of an existing fact sufficient to raise the case for proprietary estoppel. In my view the claim given the facts of this case has no merit and must fail.

The Court having found no case for the defence of proprietary estoppel, it follows that the "cause" relied upon by the defendants under section 172, as ground for their claim of remaining on the land, cannot be sustained. In other words the defendants have failed to show cause to the satisfaction of this Court, why their refusal to give up the "Naivitavaya" property to the plaintiff is legally defensible.

I turn to the preliminary issues and/or objections raised by the defendants in their submissions. First on whether the plaintiffs affidavits had complied with Order 41 rule 9 (2) of the High Court Rules specifically relating to a company. It is sufficient for the Court that the deponent swears to his directorship of the company and the authority that flows therefrom. It is for the defendants to prove otherwise. Second, the defendants argued that section 169 proceedings can only be brought against an identifiable person. While this maybe so in a situation where the individuals are easily identified, the Court may exercise its discretion where there are settlements populated by over a hundred adults and the registered proprietor is prevented from finding individual’s personal details. In any case, there are only two defendants in this proceedings. Any attempts to remove the remainder of the occupiers, can only be by separate and further proceedings.

As to the argument that there has not been any evidence to show that the defendants are illegally occupying the land, plaintiffs Counsel had correctly referred to the "Consent Order" of the Court of 25 January 1983 which effectively decided, and conceded to by the defendants, that they were residing illegally on the land. There is also the evidence of Finau Rakai, surveyor, who deposed in his affidavit, that the defendants’ residence is located within the plaintiffs land. Contrary to the defendants’ arguments, proceedings under section 169 is by way of Summons, not by Notice to Quit. Both defendants appeared through Counsel after service of Summons. Lastly, restrictive covenant No. 174914 only applied to those who held legal titles over Lots 1 to 30 DP 4056. This does not include the defendants.

Finally, the Court notes that almost three-quarters of the outer perimeter of the land borders on the Samabula river and the sea. In the light of the claims of development and reclamation work undertaken by the inhabitants of "Naivitavaya" settlement over the years, it would be advisable, before the plaintiff decides to take any further action against others on the land, that a re-survey be done to ascertain the exact boundary of Lot 1 DP 4533 vis a vis the homes of the settlers".

Final Orders

42. For the above reasons there shall be an order for vacant possession against all the defendants. Execution must be stayed until 30th day of January, 2010 to allow the defendants to relocate themselves.

43. I order costs to the plaintiff to be taxed if not agreed.

44. Orders Accordingly.

ANJALA WATI
Acting Judge
05.02.2010