IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. HBC 19 of 2016

IN THE MATTER of an application for possession of land under section 169 of the Land Transfer Act, and Order 113 of the High Court Rules.

BETWEEN	: 	CARPENTERS FIJI LIMITEDa limited liability company having its registered office at Rodwell Road, Suva.
PLAINTIFF

AND	:	BONEFASIA RAIKALOA of Nakama, Savusavu, Fiji
DEFENDANT

Appearances	:	Patel Sharma Lawyers for the Plaintiff
Defendant in person

JUDGMENT
1.	By an originating summons filed 8 June 2016, the PlaintiffCompany seeks an order for the Defendant to give immediate possession of the land comprised in Crown Grant No. CG 932, situated at Nakama (part of), in the District of Savusavu, Vanua Levu, as well as any improvements on the said property.  The application is made pursuant to ss. 131 and 169 of the Land Transfer Act, and Order 113 of the High Court Rules.  

The law
2.	Section 131 of the Land Transfer Act provides for the powers of the Registrar of Titles to enter caveats, correct errors in certificates of titles, and, with the approval of the Minister, to destroy documents.  I am of the view this section has been cited in error as it has no relevance to these proceedings.  

3.	In a section 169 application for vacant possession, the plaintiff bears the onus of satisfying the Court that it has standing to institute proceedings against the defendant.  It does this by proving it belongs to one or more of the following classes of persons under paragraphs (a) – (c) of the section:

1.	the last registered proprietor; 
2.	a lessor who has power of re-entry where the lessee is in arrears for a period stated in the lease, or, 
3.	where there is no such provision in the lease, a lessor against a lessee who is in arrears for one month, regardless of whether there is sufficient distress on the land to countervail the rent, and whether or not a demand has been made for the rent;
4.	a lessor against a lessee or tenant in a case where a legal notice to quit has been served, or the term of the lease has expired.

4.	Once the Plaintiff has established locus, the onus then shifts to the Defendant to, in accordance with section 172, show cause why he refuses to give possession of the land.  If he is able to satisfy the court that he has a right to possession, the summons shall be dismissed with costs against the proprietor, mortgagee or lessor.  Alternatively, the court may make any order and impose any terms it considers fit. 

5.	In this case, the Plaintiff also places reliance on Order 113 of the High Court Rules which provides:

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.

6.	As with applications made pursuant to section 169 of the Land Transfer Act,proceedings under Order 113 are summary in nature and must be taken only in the clearest of cases.  (Kumar v KumarCivil Action No. HBC 157 of 2008L per Inoke J)

The affidavits
7.	The affidavit in support of the application is sworn by Daniel Kingston (Kingston), Director of the Plaintiff Company.  He deposes inter alia, that the Plaintiff is the registered proprietor of the property the subject of these proceedings.  A copy of the certificate of title is annexed, confirming this.  The Defendant, it is alleged, has been in illegal and unlawful occupation of part of the property, occupying it without permission, authority, lease or licence.  

8.	On 8 May 2015, the Plaintiff’s solicitors caused a trespass notice and notice to quit to be served on the Defendant and brought to the notice of other occupants, giving them 30 days within which to vacate the premises.  Despite this, the Defendant continues to occupy the property in defiance of the said notice.  The Plaintiff intends to use the property.  

9.	After initial delays to do with the Defendant applying for legal aid assistance, the refusal of the same, and time taken to prepare his answering affidavit, the Defendant finally filed an affidavit in support on 7 December 2016.  In it, the Defendant admits thatthe Plaintiff is the registered proprietor of the property described in the originating summons.  However, he denies being in illegal occupation of the property, saying that the place where he lives does not belong to the Plaintiff.  He denies being served with a trespass notice and notice to quit.  

10.	In a supplementary affidavit filed with the leave of the Court, the Defendant further swore that the area of the Plaintiff’s land is 18 acres, not 145 acres.  He says that in 1931, Mr. Snow, the manager for Morris Hedstroms at the time, promised the Defendant’s grandparents and uncle that if they wanted their land back, for them to give 100 baskets of yams.  This was given to the said Mr. Snow in exchange of the land in the same year.  The Governor, Sir Robert Foster then created a second title, which is why the Company has two titles.  The Defendant says he has the right to ownership of the land.  The claim that the first transfer was for “harbor heights” is false since the Plaintiff had the first registered title of the land.  His grandfather was the chief of Mataqali Rara in the village of Yaroi, and owner of all the land in Savusavu Town.  He cites his Constitutional right to life saying that the Plaintiff’s attempt to evict him from the land is a violation of his right to life under the Bill of Rights which states that all iTaukei land shall remain with the customary owners and not be permanently alienated.  He prays the Court to consider the rights of the indigenous over their land, and of his entitlement to his share of the land that his family depends on for their livelihood. 

11.	The Plaintiff replies inter alia that the Defendant has not furnished any documentary evidence to show that Morris Hedstrom or Sir Robert Foster had given them permission to stay on the property; and that the Defendant has been in illegal occupation of part of the property for some time.  

Analysis
12.	The issue for the Court’s determination is whether an order for vacant possession should be made in the Plaintiff’s favour.  The Plaintiff has brought this application under section 169 of the Land Transfer Act, and under Order 113 of the High Court Rules.  In Singh v Hoit Civil Action No. 370 of 2011, Master Sharma dealt with an application for vacant possession that sought reliance on both section 169 LTA and Order 113.  Said the Master of this practice,

The Plaintiff cannot commence eviction proceedings on both provisions of the Law confined to one particular Civil Court file in terms of Order 113 and Section 169.

13.	In Singh (supra), the Master analysed the facts and found that the Plaintiff’s application fell under Order 113, not section 169 LTA. 

14.	In the instant case, the Plaintiff claims that the Defendant is unlawfully and illegally occupying part of CG 932 without permission, authority, lease or licence to do so.  

15.	For his part, the Defendant says that in 1931, a Mr. Snow who was the manager of Morris Hedstrom at the time, promised the Defendant’s grandfather, grandmother and uncle to give him 100 baskets of yams if they wanted their land back.  The same year, the yams were given in exchange for the land.  

16.	On the facts before me, I consider the application falls within the scope of Order 113 given the Plaintiff’s claim that the Defendant is occupying a part of the property without permission, authority, lease or licence to do so.  

17.	The issue for determination therefore is whether the Plaintiff is entitled to an order for vacant possession under this Order.  

18.	Consistent with the onus on it to prove the existence of a legal right to bring these proceedings, the Plaintiff has annexed to its affidavit in support a copy of the certificate of title it relies on.  The certificate of title annexed is incomplete, being cut off no doubt in the process of photocopying; is illegible, and leaves out vital details in respect of the land to which it applies, with the result that it cannot be said with any certainty that it is the title for Crown Grant CG. 932.  Notwithstanding the Defendant’s admission that the Plaintiff is the registered proprietor of the property in CG. 932, I consider that the Court must be satisfied on the evidence that this is indeed the case.  Unfortunately, the copy of the certificate of title adduced does not show that it is for CG 932, which the Plaintiff says it is the registered proprietor for.  

19.	The burden is on the Plaintiff to show it has a legal right to bring these proceedings against the Defendant.  An order for vacant possession has drastic consequences for the party against whom such an order is made, and in my opinion, requires of the Plaintiff strict compliance in proving it has a superior title.  I am not satisfied that the Plaintiff has discharged the onus on it to show a legal right to bring these proceedings.  For this reason, the onus does not shift to the Defendant for it to show a right to be in occupation.  In fact, no order for vacant possession is warranted.

20.	The Defendant must not be mistaken in taking this decision to mean he has won the case and has a right to be in occupation of the property.  Far from it.  The refusal of the application for vacant possession against him is due to the failure of the Plaintiff to discharge the onus on it to adduce evidence to show it has a legal right to bring these proceedings.  

21.	Order
1.	The application for vacant possession is dismissed.
2.	Costs for the Defendant, summarily assessed in the sum of $800.

Dated at Labasa this 19th day of September, 2017.

S.F. Bull
Acting Master