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Lok v Goundar [2011] FJHC 17; HBC203.2010 (26 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 203 of 2010

IN THE MATTER of
Section 169 of the Land Transfer Act, Cap. 131

AND

IN THE MATTER of
an Application for vacant possession by CHANDRA LOK

BETWEEN

CHANDAR LOK
(father’s name Ballaiya)) of
7 Royal Palm Road, Navutu, Lautoka.
Retired Businessman.
PLAINTIFF

AND

MUNIAPPA GOUNDAR
(father’s name unknown to the Plaintiff) of Toko,
Tavua, Fiji.
FIRST DEFENDANT

AND

DEWANAMMA
(father’s name unknown to the Plaintiff) of Toko, Tavua, Fiji.
SECOND DEFENDANT

Before : Master Anare Tuilevuka

Counsel : Messrs Mishra Prakash & Associates for the Plaintiff
Messrs Haroon Ali Shah for the e Defendant

Date of Hearing : 15th December 2010.
Date of Ruling: 26th January 2011

RULING

[1]. Before me is the plaintiff’s application under section 169 of the Land Transfer Act (Cap 132) against the defendants to show cause why they should not vacate and give immediate vacant possession of Lot 1 on Plan No. 1700 “Toko” (part of) in the District of Tavua in the island of Viti Levu.

[2]. The land contains an area of 25 acres of 2 Rods 08 perches and is described in Lease No. 44656. A copy of Lease No. 44656 is annexed to the plaintiff’s affidavit and marked “A”. I gather that it is an NLTB lease.

[3]. If I may say so – this copy is not an ideal one. Firstly, the notations in most of the memorials thereon are illegible. Secondly – a line has been drawn diagonally through and then across the bottom half of the page where the two relevant memorials[1] appear. Anyone unfamiliar with how a cancellation is recorded on a title could be misled into thinking that these lines denote the cancelling out and the invalidation of the memorials thereon the bottom half of the page in question – which – incidentally includes the memorial recording the transfer of the lease title to the plaintiff. In any event, seeing that the defendants take no issue with this – I shall conclude that the plaintiff is indeed the last registered proprietor of the leasehold in question.

[4]. The affidavit in opposition sworn by the second defendant on 22nd of November 2010 deposes that the land in question (formerly Lease No. 26573), was originally vested in one Ballaiya father’s name Chinsaiya of Toko, Tavua.

[5]. In 1982, conscious that he was then advancing in years, and driven by a desire to leave a legacy for his five sons, the said Chinsaiya entered into a Deed of Family Arrangement whereby, in consideration of Natural Love and Affection – he allocated a lot each to his five sons.

[6]. The Lease Title does not show that the land was ever formally subdivided in the sense of going through the requisite regulatory approvals and consequent issuing of separate titles for each lot. Nonetheless - the defendant’s affidavit annexes a plan of the land in question which marks out the purported allocations.

[7]. Also allocated a lot was one Balram who is one of the plaintiff’s four brothers. Balram in fact stayed on and farmed the entire land (not just his allocation) for some years. The defendants allege that they have been staying on Balram’s land on Balram’s permission.

[8]. This is confirmed by Balram who has sworn and filed an affidavit dated 24th of November 2010. Balram further deposes that his brother - the plaintiff - did transfer the lease to his same by fraud and without the consent of the NLTB.

[9]. On this, I note that there is in fact a memorial on the Lease Title which notates the registration of a Court Order on 11th June 2004 directing the Registrar of Titles to register the Transfer and to issue a provisional lease in favour of the plaintiff.

[10]. Dewanamma deposes that there is in fact a pending High Court civil action in Lautoka (HBC 320 of 2007) instituted by Balram seeking to challenge the plaintiff’s title over the land in question. That action – I gather is premised on the purported Deed of Family Arrangement (see above).

[11]. Section 169 of the Act 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.”

[12]. Sections 171 and 172 of the 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]. Under the section 169 summary eviction procedure, once it is shown that the defendants are the last registered proprietors of the property, the onus shifts immediately to the defendant to show cause as to why vacant possession should not be given.

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

“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.”

[15]. The question then is whether or not the defendant has discharged that burden?

[16]. It appears that the right to possession that the defendants claim rests ultimately on whether or not the plaintiff’s title will be defeated in Balram’s pending action in HBC 320 of 2007. I gather that this case has been marked for hearing from the 23rd to the 25th of May 2011 before Wickramasinghe J.

[17]. The question I ask is whether or not the pendency of that action is enough to sustain a right to possession for the time being in the defendants.

[18]. That issue was dealt with by the Fiji Court of Appeal case of Dinesh Jamnadas Lalji and Anor v Honson Limited F.C.A. Civ. App. 22/85 where Mishra J.A. said:

“At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act.” (emphasis added).

[19]. Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

“.....that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”

Although the defendant has alleged fraud, and which is also the subject matter of the said action instituted by the defendant, there are no complicated questions of fact to be investigated. The procedure under s 169 is most appropriate here. On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

“... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straight forward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

(my emphasis)

[20]. Clearly, from these authorities, the pendency of related Writ proceedings is not – by itself – sufficient to shut out a section 169 claim. In my view, the pendency of a related civil action would be immaterial to a section 169 application in a situation where it is clear that the plaintiff’s (i.e. plaintiff in the section 169 application) title is secure beyond impeachment. One such instance would be – where the section 169 application has been instituted by A who is a bona fide purchaser for value and the pending civil action is based on an allegation of fraud of the B who sold the land to A (see for example Chute v Wati [2009] FJHC 247; HBC008 (308 (30 October 2009)).

[21]. However, in cases such as the present – where the nature of the allegations in the pending HBC 320 of 200711; if proved – may well see the plaintiff’s ti;s title being defeated – and where some evidence tending to support those allegations (in this case, the Deed of Family Arrangement) is adduced in the defendant’s affidavit opposing the section 169 application – a summary eviction order should be refused.

[22]. If in this case before me now, an order for vacant possession would immediately set in motion a train of events beginning with the dismantling of the defendant’s house and relocating to an alternative site – only to return if HBC 320 of 2007 was to be decided against the Chandra Lok (plaintiff in this case) – assuming Balram recommits to an arrangement similar to the existing one.

[23]. It is not clear to me how exactly one might classify the basis of the defendant’s claim to possession – whether they had been paying some sort of rent to Balram pursuant to an “informal” tenancy arrangement, whether they are licensees – and so on and so forth. What is clear though is that the authority that Balram had given to the defendants purportedly gave them a right to occupy that portion of land that Balram thought belonged to him.

[24]. Whether or not Balram had that authority to give – will have to emerge from HBC 320 of 2007. However, it also rests on whether or not the NLTB had consented to that arrangement.

[25]. In reviewing the evidence before me - I was initially of the view that the defendants had shown sufficient evidence to remain in possession for the time being pending the outcome of HBC 320 of 2007.

[26]. However, as alluded to above, there is one slight glitch in their case that changed my mind. That is the fact that there is no evidence before me that the Native Lands Trust Board ever consented to their occupation.

[27]. In Khan v Prasad [1996] FJHC 85; Hbc0480j.96s (23 December 1996), Mr. Justice Pathik expressed the view that where the Director of Lands consent was not obtained on the defendant’s occupation of a crown protected lease, the defendant’s occupation was therefore unlawful which means that the defendant cannot justify remaining in possession. Interestingly, the defendant in that case had submitted that because there was no consent of the Director of Lands he cannot be evicted.

[28]. Pathik J said that the defendant cannot in the circumstances be regarded as a lawful tenant of the plaintiffs.

The defendant's assertion will not stand as in MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded." (quoting from RAM KALI below).

Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-

"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. .... While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case". (underlining mine)

[29]. The above case was concerned with the issue of whether or not the defendant/tenant had some arguable right of possession pursuant to a landlord-tenant arrangement over a Crown protected lease where the Director of Lands’ consent to the arrangement had not been sought let alone obtained. There is no reason why the same principles cannot be applied here. If, in the event Balram is to win his case in HBC 320 of 2007, and decides to bring defendants back in, then he will just have to then regularize his arrangement with the defendants by seeking and obtain prior consent from NLTB.

[30]. Accordingly, I grant order in terms of the plaintiff’s application. The defendants are to vacate the land in question (described in Lease No. 44656) within four weeks of the date of this ruling. I also order costs against the defendant which I summarily assess at $250-00 to be paid in 28 days.

Anare Tuilevuka
Master

At Lautoka
26th January 2011.

^[1] The first of these two memorials notates Transfer No. 360347 dated 10^th of June 1994 at 12.30pm in favour of the plaintiff. The second of these memorials notates the registration of a Court Order on 11^th June 2004 directing the Registrar of Titles to register the Transfer and to issue a provisional lease in favour of the plaintiff.