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Macuata Tikina Holdings Ltd v Kumar [2016] FJHC 14; HBC65.2014 (21 January 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 65 OF 2014

BETWEEN :

MACUATA TIKINA HOLDINGS LIMITED a limited liability company having its registered office at Ground Floor, Ratu Raobe Building, Nanuku Street, Labasa
PLAINTIFF

AND :

DALIP KUMAR by himself, his family and other occupants of Tuatua, Labasa, occupation unknown
DEFENDANT

Appearances: Mr. S Valenitabua of Toganivalu Valenitabua for the Plaintiff;

: Mr. Sharma of Samusamuvodre Sharma for the Defendant.

Date of Hearing: 30 October 2015
Date of Ruling: 21 January 2016

RULING

Introduction

1. The plaintiff by an originating summons issued on the 9 October 2014 makes an application for vacant possession against the defendant from the property known as Tuatua Lot 1 on M2229 with an area of 0 .7427 hectares. The application is made under Order 113 of the High Court Rules.
   
2. The application is supported by an affidavit of Ratu Williame Ratumaivalili Katonivere, the Managing Director of the plaintiff company. The defendant opposes the application and files an affidavit in opposition sworn on the 18 December 2014. I must add that both affidavits did not comply with Order 41 rule 9 in that both were not indorsed with a note showing in whose behalf it was filed and the dates of swearing and filing. The said order also states that such an affidavit may not be used without leave of the Court.
3. I have taken this defect into consideration and for the purposes of determining the matter quickly I have accepted the affidavits and will take their evidence into account.
   

Determination

4. Order 113 states rule 1 states:-
   

"Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order."

5. The claim for possession under the above rule is therefore directed to those who occupy land who entered into or remained in occupation without licence or consent or the consent of any predecessor in title. In short it applies to a trespasser. If the defendant is a trespasser then the plaintiff has a right of possession if he can prove that he/she is entitled to possession. The plaintiff's right to possession or their legal right to the land is by an agreement to lease granted to it by the iTaukei Land Trust Board on the 23 September 2011. The lease is classified as a "Special Development Lease". The said agreement to lease bears the stamp from the Commissioner of Stamp Duties but is not registered as it is subject to further development.
   
6. The procedural steps to be taken by the plaintiff in an application under Order 113 are:-
   

(i) Issue originating Summons in the prescribed form supported by an affidavit;

(ii) Limit the claim of possession to the specified land;

(iii) Effect due service of the originating summons with the supporting affidavit;

(iv) Attend to hearing before the Master in Chambers;

(v) Obtain the order for possession; and

(vi) Issue a writ of possession.

7. The service of the summons for possession of land under the order depends on whether the person in possession can be identified, in this matter the person in possession can be easily identified and he was thereafter personally served. Although there is no affidavit of service on the file the defendant filed an acknowledgement of service and thereafter filed an affidavit in opposition opposing the application. The other modes of service where the trespasser could not be identified are by leaving the summons and the affidavit in the premises of which recovery is sought or by sending the documents to every defendant at such address.
   
8. The writ of possession obtained under the Order is effectively an order in rem and empowers the sheriff's officers to clear the premises. The evidence needed to prove the rights of each party is obtained summarily and in this regard is similar to a Section 169 application and further in both cases it would apply where there is no reasonable doubt as to the claim of the plaintiff to recover possession. In a section 169 application however, the applicant/plaintiff must be the last registered proprietor.
   
9. The plaintiff did not provide a written submission but relied on the summons and the affidavit in support and oral submission as the basis of their claim to possession.
   
10. I have considered all the affidavit evidence adduced in this case including the oral and written submission from both counsels.
    
11. As distinct from an application under section 169 of the Land Transfer Act the plaintiff's right of possession here does not have to be as the last registered proprietor of the land. The threshold is less stringent but it still has to be a right better than the defendant's. The plaintiff in its affidavit evidence provides a copy of an Agreement to Lease granted it by the iTLTB on the 23 September 2011. This agreement to lease is for Special (Development Lease) Purpose and bears the Commissioner of Stamp Duties Seal. It is an agreement to lease the land for development purposes and after development a lease which could be registered be given to the plaintiff. The lease is only for ten years during which time the plaintiff is to develop the land and that the defendant's reluctance to vacate appears to be a hindrance to this end. In my view the agreement to lease granted to the plaintiff gives him a right to bring the action under this Order.
    
12. It appears that the defendant had applied for a portion of land from the iTaukei Land Trust Board (hereinafter referred to as iTLTB) sometimes in 25 June 2010. On paragraph 10 of his affidavit he annexes a copy of a receipt from iTLTB which is a receipt for a lease application fee. Contrary to the sworn statement in his affidavit the receipt described the fee as a "lease application fee" to an undefined portion of land. A little over twelve months later the defendant received a letter from iTLTB acknowledging receipt of the application fee and requested a further sum of $1,150 from him as a processing fee for lease of iTaukei land. The letter does not describe the land which is considered by them to be leased to the defendant. This fee was not paid by the defendant although he states in his affidavit that they refused to accept the processing fee. Unfortunately in my view the above does not give a right of possession.
    
13. The defendant further swears in paragraph 13 of his affidavit that " i-Taukei Land Trust Board was fully versed that I have constructed a dwelling house on this subject property and I was assured by the i-Taukei Land Trust Board that the parcel of land will be allocated to me with the valid lease. The i-Taukei Land Trust Board also wrote a letter to the secretary to the Macuata Rural Local Authority advising their office that the defendant will be allocated the piece of land he was occupying after the formalities of subdivision."
    
14. The letter annexed to the affidavit marked "c" did not identify the land but only said that it would be allocated to him. This letter was written on the 15 May 2000 some 10 years before he paid for the application fee referred to in paragraph 10. In other words the defendant had been a trespasser on this land long before any attempt was made by him to regularise or legalise his status on the land. He is in my view a trespasser or squatter on this portion of land for at least 10 years. In Baiju –v- Jai Kumar (1999) FLR 74 Justice Pathik stated at page 76 that:-
    

"The application of this Order is narrowly confined to the particular circumstances described in r.1. i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; (1974) 1 All E.R. 593. And further that this order

" ... would nly ally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to thim of the plaintiff to recover possession of the land or asor as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto."

15. A trespasser is defined in Department of Environment –v- James & others ( 1972) 3 All E.R. 629 as:
    

"he is one who, without any colour of right, enters on an unoccupied house or land intending to stay there as long as he can............"

16. A trespasser is further defined as a person who has neither right nor permission to enter on premises. Lord Morris of Borth-Y-Gest in British Railways Board –v- Herrington [1972] UKHL 1; (1972) A.C. 877 at 904 said that:-
    

The term trespasser is a comprehensive word; it covers the wicked and the innocent; ...the arrogant invader of another's land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child- all may be dubbed as trespassers"

17. The defendant response to the plaintiff's being given the lease to the subject land is that the plaintiff colluded with the iTLTB to have the lease granted to it and provides under paragraph 13 particulars of fraud. The paragraphs referred do not in my view provide any evidence of fraud actual or otherwise. The paragraphs refer mostly to the defendants attempt to obtain a lease from the iTLTB and states that the plaintiff was aware of his right of possession. As stated earlier he had no right of possession from the very beginning and having squatted on the piece of land for over ten years now claim to have a right of possession inferred from his occupation of it.
    
18. The defendant in its submission relies on the fact that the iTLTB as predecessor in title has knowledge of the defendant's right of possession when it granted the lease to the plaintiff and therefore under Order 113 this right should be considered and therefore upon consideration the Court should order that the application be by writ. This perception in my view is misconceived; the iTLTB was not at any stage a predecessor in title to this piece of land. There was never at any stage of the defendant's occupation of it that the iTLTB was the landlord, the title to the held was still held by the Mataqali Tuatua as native land before alienation and thereafter development. The defendant's affidavit in opposition confirms that this was a new sub-division and that only after the issuance of a lease on a newly sub-divided land could iTLTB become a predecessor in title. During this time the defendant trespassed on the land and built on it.
    
19. In an Order 113 applications, where the plaintiff has proved his/her right to possession and the defendant is found to be a trespasser the Court would invariably grant an immediate order for possession.
    

Conclusion

20. I am satisfied from the above that the plaintiff has proved that it has a right of possession to the property known as Tuatua Lot 1 on M2229 with an area of 0 .7427 hectares. That I further conclude from the affidavit evidence that the defendant is a trespasser and therefore I will grant the application for immediate vacant possession. As is prayed for in the application I further order that the defendant pay the plaintiff's cost summarily assessed at $1,000:00.
    

21. I therefore make the following orders in keeping with an application under Order 113 of the High Court Rules:-

(1) That the defendant forthwith gives immediate vacant possession to the plaintiff;

(ii) That the Sherriff of the Court and help the plaintiff in the obtaining vacant possession upon the issuance of the writ of possession.

(iii) That the defendant to pay the plaintiff's cost summarily assessed at $1,000:00.

H A Robinson
Master, High Court
LABASA
21 January 2016