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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 13 of 2017
BETWEEN :
AISAKE RAVUTUBANANITU of Tagitaginatua, Tavua, Businessman.
Plaintiff
AND :
BASKARAN NAIR f/n Archudan Nair of Koronisalusalu, Tavua, Driver.
Defendant
Before : Master U.L. Mohamed Azhar
Counsels : Mr. N. Nawaikula for the plaintiff
Mr. S. K. Ram for the Defendant
Date of Judgment : 27th June 2019
JUDGMENT
01. The plaintiff filed the summons for ejectment against the defendant, pursuant to Order 113 of the High Court Rules and inherent jurisdiction of this court. The plaintiff sought an order that, the defendant to deliver vacant possession of all that piece of property Agreement to Lease No. 64646 (part of) TLTB No.4/4/1953 more particularly described as Koronisalusalu Lot 2, in the Tikina of Tavua in the Province of Ba having an area of approximately 1664m2 more or less and owned by Mataqali Navusabalevu. The summons is supported by an affidavit sworn by the plaintiff and contains three annexures marked as “AR 1” to “ARP 3”. The “AR 1” is the copy of the Agreement to Lease signed by and between Native Land Trust Board and the plaintiff on 04.11.1999. The “AR 2” is the copy of the notice sent by the solicitor for the plaintiff to the defendant requesting the vacant possession of the subject property. The “AR 3” is the copy of the letter sent by the Native Land Trust Board on 08.05.2009 to the defendant to vacate the subject land within 7 days.
02. The defendant failed to appear on the summons returnable day, though the summons was duly served and the affidavit of service was filed. Therefore, on the application of the counsel for the plaintiff, the then Master granted orders in terms of the summons in the absence of the defendant. Thereafter, the defendant filed a summons before a judge seeking several orders including an order to stay of the order made in his absence. The judge granted a stay against the execution of the ex parte order pending the determination of setting aside application. Thereafter, the said ex parte order was set aside by consent and subject to an agreed cost with the leave to the defendant to file his affidavit in opposition. The affidavit in opposition sworn by the defendant contains seven annexures marked as “BN 1” to “BN 7”. The plaintiff then filed his affidavit in reply and further annexed two documents marked as “AR1” and “AR2”. The “AR 1” is the locality diagram and “AR 2” is the same letter of NLTB which he already annexed with his supporting affidavit marking as “AR 3”.
03. At the hearing of the summons, both counsels tendered their written submissions and relied on their respective affidavits. They further moved to file reply submissions and the court granted leave for the same. Thereafter both counsels filed their respective submissions in reply. The counsel for the defendant took up three preliminary issues. The first is that, the summons is defective as the plaintiff used the Format of Summons generally taken out under the section 169 of the Land Transfer Act, whereas the instant summons is taken out under the Order 113 of the High Court Rules. The second is that the supporting affidavit of the plaintiff does not show before whom it was sworn. The third is that, the land area purportedly given to the plaintiff in that Agreement to Lease is not defined through a survey. Now I turn to discuss the first two preliminary issues and the third will be discussed when considering right of the defendant to possess subject land.
04. The Order 113 of the High Court Rules allows the person claims possession of land which he alleges is occupied by a person or persons who entered into or remained in occupation without license. The Order 113 rule 2 further provides that, the summons for the purpose this Order shall be in the Form No. 3 in Appendix [1]. The said Form 3 is the General Form of originating summons. The counsel for the defendant submitted that, the plaintiff used the summons generally used in applications under section 169 of the Land Transfer Act. The reason for his argument is the wording used in this summons which states that, ‘the defendant to show cause why an order for ejectment should not be made against him’. This is the general wording of the summons filed for the purpose of the applications under the said section 169 of the Land Transfer Act. Order 113 is akin to summary procedure under section 169 of the Land Transfer Act Cap. 131 as Justice Pathik said in Baiju v Kumar [1999] FJHC 20; Hbc0298j.98s (31 March 1999). Since the order, that is made under this Order 113 too, is the same order as the one that is made under section 169 of the Land Transfer Act, I do not see any harm in using those wording. In any event, this irregularity claimed by the counsel for the defendant, is not something that can cause substantial injustice to the defendant to be a nullifying factor. The Privy Council in Austin v. Hart (1983) 2 AC. 640 held at page 647 that:
“...The modern approach is to treat an irregularity as a nullifying factor only if it causes substantial injustice: see Marsh v. Marsh (1945) A.C. 271, 284...” (Emphasis added).
05. The second issue raised by the counsel for the defendant is in relation to the supporting affidavit of the plaintiff. Though the counsel suggests that the said affidavit does not show before whom it was executed, the solicitor and the commissioner for oaths who administered the oaths confirmed it was before him and signed. Thus, I consider this wording is sufficient to treat that affidavit to be compliant to Order 41 rule 1. In any event, Order 41 rule 4 gives discretion to the court to allow any such affidavit notwithstanding any irregularity in the Form. In Chandrika Prasad v. Republic of Fiji & Attorney General (No. 6) [2001] HBC 0217/00L 17 January 2001 His Lordship the former Chief Justice Gates (as His Lordship then was) allowed 3 defective affidavits to be used in evidence notwithstanding the non-compliance with the mandatory rule of O.41, r.9 of the High Court’s Rules. In that case, the affidavits were devoid of the indorsement required under the said O.41, r.9. In Singh v Liku [2009] FJHC 365; HBC312.2009 (9 November 2009), the President Court of Appeal Justice Calanchini (as he then was) admitted an affidavit appeared to be unsworn although signed and without jurat details. It was in an application under section 169 of the Land Transfer Act. For the above reasons I overrule first two preliminary objections raised by the counsel for the defendant.
06. The purpose of the Order 113 of the High Court Rules, in its plain meaning is to provide a summary and speedy procedure for the recovery of possession of any land when it is in wrongful occupation by a person who has no consent or licence either from the applicant/plaintiff or his predecessor in title. The introduction of this rule in United Kingdom was prompted by the decision of Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch. D 420 where it was held in appeal that the court had no power to make an interlocutory order for possession. This was well explained in Dutton v Manchester Airport [1999] All ER 675 at 679 as follows:
"Order 113 was introduced in 1970 (by the Rules of the Supreme Court (Amendment No 2) 1970, SI 1970/944), shortly after the decision of this court in Manchester Corp v Connolly [1970] 1 All ER 961, [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right--that is to say, against trespassers. The order does not extend or restrict the jurisdiction of the court. In University of Essex v Djemal [1980] 2 All ER 742 at 744, [1980] 1 WLR 1301 at 1304 Buckley LJ explained the position in these terms:
'I think the order is in fact an order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession.'
07. The Order 113 rule 1 reads;
"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".
08. The scope of this rule 1 was explained by Justice Pathik in Baiju v Kumar (supra). His Lordship cited the passage from the White Book when explaining the scope and stated that:
“The question for Court's determination is whether the plaintiff is entitled to possession under this Order. To decide this, the Court has to consider the 'scope' of the Order. This aspect is covered in detail in The Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:
"This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers." (Emphasis mine)
As to the application of this Order it is further stated thus:
"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."
This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:
"this Order would normally 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 the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto." (Emphasis is original)
09. It is apparent from the decision in Dutton v Manchester Airport (supra) and the commentary in the White Book cited above that, this is the procedure to recover the possession of a land occupied by a trespasser or a squatter.
The working of RSC Ord 113 and the relevant facts can be found in the judgment of Chadwick LJ. In Wiltshire CC v Frazer (1983) 47 P & CR 69 at 76 Stephenson LJ said that for a party to avail himself of the order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. Stephenson LJ (at 77) went on to consider what the words of the rule require. They require:
‘(1) Of the Plaintiff, that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant. (2) that the defendant, whom he seeks to evict from his land [the land], should he persons who have entered into or have remained in occupation of it without his license or consent [or that of any predecessor in title of his].’
'In my judgment the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. This is the same principle as allows a licensee who is in de facto possession to evict a trespasser. There is no respectable distinction, in law or logic, between the two situations. An estate owner may seek an order whether he is in possession or not. So, in my judgment, may a licensee, if other things are equal. In both cases, the plaintiff's remedy is strictly limited to what is required to make good his legal right. The principle applies although the licensee has no right to exclude the licensor himself. Elementarily he cannot exclude any occupier who, by contract or estate, has a claim to possession equal or superior to his own. Obviously, however, that will not avail a bare trespasser'
then this agreement shall cease to have effect, whereupon the provisions of Regulation 12 (4) shall apply.
Ref: Notice to Vacate – 4/4/1953 Mr. Baskaran Nair f/n Achudan Nair: Native Land Known Koronisalusalu Lot 2 (attached)
I with the senior members of the mataqali have been approached to intervene for assistance by Mr. Baskaran Nair as referenced above.
Mr. Baskaran and family are well known and have been friends with us for a very very long time.
We have had discussion with them and agreed that on compassionate ground we allowed them to stay since their leasehold expired a few years ago until such time that they have secured a place for relocation or when the Housing Authority development earmarked for Tavua is completed.
Also the said land is not on leasehold purported to belong to Ravutubananitu and it’s located on land known by the same name but on 4/4/701 which belongs to the Trustees of Mataqali Navusabalavu and not Ravutubananitu.
The whole parcel of land including the ones claimed by Ravutubananitu to be under his name is currently under dispute as we believed Ravutubananitu obtained the lease under dubious means. This will be reported to FICAC and will be under investigation.
On this note we are also requesting your good office to consult us on any land dealings Ravutubananitu has with you as he is the main source of problems in our mataqali. This has been a topic of our very recent meeting with senior FICAC officials from Suva and Lautoka and a major investigation will be underway soon on all Ravutubananitu’s dealing using the mataqali’s name.
We ask for your consideration in allowing Mr. Nair to stay for a while until such time we find it appropriate for them to move on.
‘...in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against any one, and those who sought to turn the man in possession out must show a superior legal title to his.’
U. L. Mohamed Azhar
Master of the High Court
At Lautoka
27.06.2019
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