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Nasinu Land-Purchase and Housing Co-operative Society Ltd v Occupiers of Certificate of Title No 3213 [2018] FJHC 674; HBC303.2012 (30 July 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 303 of 2012

BETWEEN: NASINU LAND-PURCHASE AND HOUSING CO-OPERATIVE SOCIETY LIMITED a co-operative society duly incorporated pursuant to the Co-operative Societies Ordinance Cap 219 and having its principal place of business at 68 Suva Street, Suva.

PLAINTIFF

AND: THE OCCUPIERS of Certificate of Title No. 3213 being Lot 1 on Deposit Plan No. 3130 Stage 9, Phase 1.

DEFENDANTS

COUNSEL: Ms Devan - for the Plaintiff
Ms Mary Chan - for the Defendant

BEFORE: Master Vishwa Datt Sharma

Date of Ruling: 30^th July, 2018 @ 9am

RULING

(Amended Originating Summons pursuant to Order 113 of the High Court Rule, 1988 and the Inherent Jurisdiction seeking an order for vacant possession.)

INTRODUCTION

1. The Plaintiff by his Originating Summons dated 01^st November, 2012 seeks the following orders-

(i) An order under Order 113 of the High Court Rules, 1988 of Fiji that the Plaintiff do recover possession of the land comprised in Certificate of Title No. 3213, being Lot 1 on Deposit No. 3130, Stage 9, Phase 1 in the Republic of Fiji having an area of 326 acres 2 roods on the ground that it is entitled to possession and that the persons in occupation are in occupation without license or consent.

(ii) Such further or other relief as this Honourable court may deem fit.

2. This application is made pursuant to Order 113 of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honourable Court.
3. The Defendants opposed the application and filed Affidavits in Opposition.
4. The Defendant’s only filed written submissions and the matter was accordingly heard for determination of the orders sought by the Plaintiff.
   

THE LAW

5. The Plaintiff has made his application pursuant to Order 113 of the High Court Rules, 1988 which deals with summary proceedings for possession of land and provides as follows-

Proceedings to be brought by originating summons (O.113, r.1)

1. 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.

PLAINTIFF’S CASE

6. That the Plaintiff is in the process of subdividing, developing and selling part of the land which the Defendants or occupiers are presently illegally occupying. The area which is being developed and illegally occupied by the Defendants/ occupiers is delineated and marked as per the approved development plan.
7. The Defendants named herein and other unnamed occupiers are currently illegally occupying the Plaintiff’s land without license, consent or authority from the Plaintiff by squatting on the land.
8. The Plaintiff is unaware of the names of the persons who are illegally occupying the land. Despite numerous enquiries to ascertain the names, the unnamed occupiers are wilfully refusing from divulging their names in order to frustrate the Plaintiff’s actions to recover its land from the occupiers.
9. Seeks for the orders accordingly.

DEFENDANT’S CASE

10. Defendant’s Counsel stated as follows-
    • Freedom from arbitrary evictions;
    • Order 113 should be applied in the instance where the matter is the clearest of the cases. This case is not clear as there is conflicting evidence of service, and serious issues of a triable nature raised in the affidavits, requiring trial;
    • HCT Order admittedly can be used to evict squatters or trespassers if no estoppel or equitable right is claimed or found;
    • The Defendants are claiming that Mr Parmanandam, then Secretary offered the land and invited to build their dwelling. Thus the Defendants cannot be classified as squatters or trespassers;
    • The later board members of the Plaintiff are refusing to honour the terms of Mr Parmanandam’s words, without a reasonable explanation, no explanation has been given in the affidavit in support. The Prime Minister’s Office has intervened and offered to buy the land from the Plaintiffs to accommodate the Defendants, and asked the Plaintiff to disclose its list of members, but the Plaintiff has refused to do so;
    • Writ of Summons is a proper way to deal with this case;
    • Defendants claiming Equitable and or Promissory Estoppel;
    • Defendants have vested interest on the land in occupation;
    • Defendant’s affidavits have raised equitable interest or promissory estoppel or legitimate expectation or constructive trust. They have raised triable issues, which the Plaintiff does not dispute;
    • Defendants are seeking for the action to be struck out.
      

ANALYSIS AND DETERMINATION

11. The issue for Court’s determination is whether the plaintiff is entitled to possession of the property comprised in Certificate of Title No. 3213, being Lot 1 on Deposit No. 3130, Stage 9, Phase 1 in the Republic of Fiji having an area of 326 acres 2 roods on the ground that it is entitled to possession and that the persons in occupation are in occupation without license or consent.
12. Reference is made to the Case of “Baiju v Kumar (1999) FJHC 20; HBC 298 J.98, wherein Justice Pathik succinctly dealt with the scope of the order as hereunder-

“The question for Court's determination is whether the plaintiff is entitled to possession under this Order. To decide this Court has to consider the scope of the Order. This aspect is covered in detail in The Su Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard: