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Nasinu Land Purchase and Housing Co-operative Society Ltd v Talili [2011] FJHC 106; HBC74.2010 (2 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 74 OF 2010

BETWEEN:

NASINU LAND PURCHASE AND HOUSING CO-OPERATIVE SOCIETY LIMITED
PLAINITFF

AND:

ILAIJIA TALILI AND ENAMASI
DEFENDANTS

Appearances: Mr. Raman Singh for the Plaintiff.
No appearance of 1st named Defendant.
2nd named defendant in Person.
Date / Place of Judgment: Wednesday, 02nd February, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

LAND TRANSFER ACT, CAP. 131 –application under s. 169 of the Land Transfer Act for defendants to show cause why an order for immediate vacant possession should not be made against them – second named defendant raises the defence of adverse possession and his desire to buy the land – no cause shown – order for vacant possession made with liberty to defendants to liaise with plaintiff to discuss the aspect of buying the property-execution stayed for one month to enable discussion on purchase or relocation.

Legislation
Land Transfer Act, Cap. 131.

Case Background

1. The plaintiff filed a summons on the 12th day of March, 2010 with a supporting affidavit through which it is seeking an order for vacant possession of the land and premises comprised and described in the Certificate of Title No. 12468 known as Lot 1 on DP No. 3130, and the costs of bringing the application.
2. The application is opposed by the defendants.
   

Plaintiffs Grounds/Submissions

3. The plaintiff stated that it is the last registered proprietor of the property and the defendants have been occupying the same as trespassers. The defendants have on the 18th day of December, 2009 been served with a notice to vacate the said property but they have refused to comply.
   

Defendants Grounds/Submissions

4. The 2nd named defendant did not file any affidavit but raised his opposition orally. He also tendered a letter in court stating the grounds for his opposition. He stated that he is also representing his father who could not be in court because his leg was amputated due to diabetes. They had been living on the property for the past 20 years. The Methodist Church gave them permission to live on the land. They have spent a lot of money in building a house on this property and they do not wish to vacate the said land as they have all the amenities accessible from the place they live. They can buy the land they live on. They have a right to adverse possession of the said land.
   

The Issues, the Law and the Determination

5. The only issue for determination before the court is whether the named defendants have shown cause as to why an order for vacant possession should not be made against them.
   
6. The plaintiff is indisputably the last registered proprietor of the subject property and as such is entitled to bring a summary action for vacant possession under s. 169 (a) of the Land Transfer Act Cap. 131.
   
7. Section 172 of the Land Transfer Act states that " if a 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,... and he may make any order and impose any terms he may think fit: provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:..."
   
8. The defendants defence is that they were allowed by the Methodist Church to live on the property and they have built on the land and are staying on the same for the past 20 years. They wish to buy the land and they wish to retain the same by virtue of adverse possession.
   
9. There is no indication that the plaintiff allowed the defendants to stay on the property or encouraged them to live on the land and build on the same. If the defendants believe that they should occupy the land by virtue of adverse possession then they should have made an application for a vesting order of the property in their names. They have not done so and have slept on their rights if any. They cannot ask the court to continue in occupation as they have not shown any cause why they should occupy the said land. If they wish to buy the property, the matter is between the parties. They can discuss the aspect with the plaintiff.
   

Final Orders

10. The defendants must give vacant possession to the plaintiff on or before the 1st day of March, 2011.
    
11. There shall be no order for costs against the defendants.
    
12. Orders Accordingly.
    

Anjala Wati
Judge

02nd February, 2011
At Suva

To:

1. Mr. R. Singh for the Plaintiff.
2. Mr. Ilaijia Talili, 1st named Defendant.
3. Mr. Enamasi, 2nd named Defendant.
4. File: HBC 74 of 2010