IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA 9 OF 2018

IN THE MATTER of an Appeal from the decision of the Ba Magistrate’s Court, in Civil Action No. 01 of 2015	

BETWEEN               

MEHMOOD KHAN of Vunisamaloa, Ba, Fiji, Farmer.
	
APPELLANT (ORIGINAL PLAINTIFF)
	
A N D                        

PAULIASI RATU of Vunisamaloa, Ba, Fiji.
	
RESPONDENT (ORIGINAL DEFENDANT)	

Appearances		: Mr N. Padarath for the plaintiff/appellant
			: Ms J. Singh (L/A) for the defendant/respondent
Date of Hearing	: 30 July 2019
Date of Judgment	: 24 September 2019

J U D G M E N T

Introduction 

[01]	This is an appeal from the Magistrates Court sitting at Ba against the ruling of the learned Magistrate (‘the Magistrate’) dated 25 April 2018, where he dismissed the appellant’s claim for ejectment on the ground of trespass to the land on the basis that the Magistrates Court has no jurisdiction to hear and determine the claim as title to the land is disputed.

Background 

[02]	Mehmood Khan, the plaintiff (‘the appellant’ in these proceedings), as the registered proprietor of state land without title comprised on Lot 1 BDSW 474B Rarawai & Vunisamaloa (Part of) being L/D Ref 4/1/1506 and registration number 26128 (‘the land in dispute’), brought an action by way of writ of summons in the Magistrate’s Court against Pauliasi Ratu, the defendant (‘the respondent’ in these proceedings) seeking for among other things vacant possession of the land in dispute and damages. The appellant’s claim was on the basis that the respondent is a trespasser to the land.

[03]	At the trial, the respondent appeared in person, the copy record does to reveal whether he filed a statement of claim, gave sworn evidence and stated that he has been staying in the house with his family  for more than 45 years and the appellant’s mother (predecessor in title) promised that she will give 2 acres of land as he got married her daughter who was sick and no one was willing to get married to her (appellant’s sister).

[04]	Upon the conclusion of the trial the Magistrate who heard both parties’ evidence, ordered the appellant to file his closing submission within 28 days. However, the Magistrate could not deliver his judgment as he presumably left the bench.

[05]	The current Magistrate heard the matter afresh. Both parties gave evidence before him. He handed down a reserved ruling on 25 April 2018 dismissing the appellant’s claim with summarily assessed costs of $500.00 payable by the appellant to the respondent. The appellant appeals to this court.

The decision in the Court below

[06]	The Magistrate, after a full trial, found that the Magistrate’s Court lacks jurisdiction to deal with the matter. He has relied on section 16 (2) (a) of the Magistrates Court Act on the case of Sukhia v Pratap [1967] Fiji Law Report 38; [1967] 13 FLR 19 (20 February 1967).

[07]	The findings of the Magistrate can be seen at paras from 11 to 14 in the law and analysis section of his ruling: 

“11.	I accept that the Plaintiff filed a cause of action in relation to trespass to land. I further accept that the Plaintiff had testified and tendered material documents to establish that he is the last registered proprietor of the subject land in dispute.

12.	The Defendant on the other hand claims that the land in issue that he currently occupies with his family was given to them to occupy by Plaintiff’s mother who was registered owner then.

13.	According to my reading of the pleadings notably the statement of defence and all the evidence adduced in Court, it seems Defendant is claiming that he and his family are not trespasses [sic] and they also have equitable and possessory rights over the land they currently occupy being the subject of dispute.

14. Having considered the pleadings, the evidence adduced together and the documents tendered, I find that right of ownership over the subject land will be an important issue to be resolved.”

Ground of appeal

[08]	The appeal is launched on the following grounds:

1.	That the Learned Magistrate erred in law at paragraph 9 and 10 of the Judgment, when it held that Section 16 (2) of Magistrate Court Act (Amendment) Promulgation 2007 applied to restrict the jurisdiction of the Court in matters to trespass to land when the provision does not limit nor expressly states title to land.

2.	That the Learned Magistrate erred in law in relying on the authority of Sukhia v Pratap Fiji Law report 38 (1967) 13 FLR 19 (20 February 1967) when the High Court In Murari Lal and anor v Santu, Civil Appeal no. 9 of 1977 held that the Magistrate court has jurisdiction to adjudicate actions involving trespass to land or recovery of land, irrespective of its value, and irrespective whether there is dispute to title.

3.	That the Learned Magistrate erred in law and in fact at paragraph 13 by not identifying which evidence the defendant had led to establish that a claim of equitable and possessory right arose against the plaintiff after finding that the plaintiff was the last registered proprietor at paragraph 11.

4.	That the Learned Magistrate erred in law and in fact by not ordering vacant possession when:

4.1	The plaintiff had established its right of ownership.
4.2	There was no evidence by the defendant to establish any right of possession or ownership contrary to that of the plaintiff.

5.	The Learned Magistrate erred in law and in fact in ordering costs against the appellant.

The Law

[09]	Dealing with the jurisdiction of the Magistrates Court in civil cases, section 16 (1) of the Magistrates Court Act, as amended (‘MCA’) says:

“Jurisdiction of Magistrates in civil causes

16 (1) Without prejudice to the jurisdiction of a Magistrate under this Act or other written law, A resident Magistrate shall have and exercise jurisdiction in the following causes- 

(a)  …;
(b) …;
(c) …;
(d) in all suits involving trespass to land or for the recovery of land (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof);
…” (Emphasis provided)

[10]	Section 16 (2) of the MCA states:

	      “(2) A Magistrate Court shall not exercise the following jurisdiction-
		
(a)	in suit wherein the title to any right, duty or office in question; or
(b)	…
(c)	…
(d)	…
(e)	…” (Emphasis supplied)

[11]	Magistrates Court Rules, O 37, R 18 and 19, provide:
			
“General powers of appellate court

18 The appellate court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its finding on any question which the appellate court thinks fit to determine before final judgment in the appeal, and, generally, shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole case, or may remit it to the court below to be reheard, or to be otherwise dealt with as the appellate court directs.
Power of appellate court to give any decision or make any order

19 The appellate court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other orders as the case may require, including any order as to costs. These powers may be exercised by the appellate court, notwithstanding that the appellant may have asked that part of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

The issue
[12]	The issue on appeal was whether the Magistrate erred in law in dismissing the appellant’s claim after trial on the basis that he lacked jurisdiction to deal with the matter when he in fact had jurisdiction to hear and determine the claim.
Submissions
	Appellant
[13] On behalf of the appellant Mr Padarath contends that: the appellant is the registered proprietor of the land. The respondent is occupying and unlawfully staying on the land without any right whatsoever. He does not have permission or licence of the appellant. He is a trespasser.
	Respondent
[14]	Ms Singh appearing for the respondent on the other hand submits that: he is not a trespasser. He is married to the appellant’s sister. He is staying on the property with his family. He has an interest to stay on the property because he is married to the appellant’s sister. He is staying on the house that was built by the appellant’s mother (the respondent’s mother-in-law). The appellant states that there is a transfer document which he claims was by way of administration, the transfer document was signed in 1987, he kept the document with him, and he did not effect the transfer. It is surprising to note that the document was only given to the Lands Department after the lease was expired when he had applied for a new lease. Prior to this the respondent was in occupation of the land. He was never a trespasser as he clearly stated that his mother in law gave the land to him. 
Discussion
[15]	The appellant appeals the Magistrate’s ruling dismissing the action he brought against the respondent for vacant possession on the basis that the respondent is a trespasser to the land.
[16]	Interestingly, the Magistrate dismissed the appellant’s action after a full trial of the substantive issues saying that he has no jurisdiction to deal with the matter.  The respondent was an unrepresented litigant. He was only present at the trial and gave evidence on his behalf. The respondent did not raise the jurisdictional issue. It was the Magistrate who, on his own motion, decided that he lacked jurisdiction to deal with the matter. The parties did not know that the Magistrate is going to dismiss the action for want of jurisdiction until he pronounced his ruling on 25 April 2018. At least, the Magistrate should have called for submissions from the parties on the jurisdictional issue as he was doubtful about his jurisdiction. Moreover, the jurisdictional issue should have been decided as a preliminary issue before dealing with the substantive claim. 
[17]	Mr Padarath of counsel for the appellant referred me to my recent judgment in Were v Vaurasi [2019] FJHC 643; HBA03.2019 (26 June 2019) where I said [at paras 25 and 26]:
“[25] Undoubtedly, the MCA, section 16 (1) (b) (ii) confer jurisdiction to hear and adjudicate on all suits involving trespass to land or for the recovery of lands (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof). The question arises whether this jurisdiction is limited by subsection (2) (a), which states a Magistrates Court, shall not exercise the jurisdiction in suits wherein the title to any right, duty or office is in question.
[26] The subsection (2) (a) clearly says a Magistrates Court must not exercise the jurisdiction in suits wherein the title to any right, duty or office is in question. It does not say the title to the land, but only the title to any right, duty or office is in question.”
[18]	In view of the above judgment, Ms Singh counsel appearing for the respondent did not dispute appeal grounds 1 and 2. She conceded that the Magistrate had jurisdiction in this matter.
[19]	It is important to emphasise that the Magistrates Court has jurisdiction to hear and determine all suits involving trespass to land or for the recovery of lands (including any building or part thereof) irrespective of its value, where no relationship of landlord and tenant has at any time existed between any of the parties to the suit in respect of the land or any part of the land (including any building or part thereof) (see: MCA, 16 (1) (d)) , and the prohibition in s. 16 (2) (a) of MCA that a Magistrates Court shall not exercise the jurisdiction in suits wherein the title to any right, duty or office is in question has no application in a suit where title to the land is in question.
[20]	In the matter at hand, the appellant brought the action for the recovery of vacant possession of the land from the respondent on the basis that he (respondent) is a trespasser, and there was no relationship of landlord and tenant ever existed between the appellant and the respondent. In the circumstances, the Magistrate had jurisdiction to hear and determine the matter on its merits.
[21]	Unfortunately, the Magistrate had fallen into error when dismissing the appellant’s claim after a full trial on the basis that he lacked jurisdiction to deal with the matter when he in fact had jurisdiction to hear and determine the claim. 
[22]	I, therefore, set aside the Magistrate’s decision that he lacked jurisdiction to deal with the matter at hand.
Considering the merits of the case
[23]	I now proceed to consider the merits of the appellant’s case.
[24]	On appeal, the appellate court has wider jurisdiction. The appellate has as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the appellate court as a court of first instance, and may rehear the whole case, or may remit it to the court below to be reheard (see: MCR, O 37, R 18).
[25]	I will deal with the appellant’s claim as if it had been instituted and prosecuted in this court.
[26]	Common grounds in this case are that:
1.	The respondent is married to the appellant’s sister.
2.	The appellant’s mother (respondent’s mother in law) was the owner of the land in dispute.
3.	The respondent has been occupying and staying on the land for well over 45 years.
[27]	The issue that arises for determination in this case is whether or not the respondent is a trespasser to the land.

Who is a trespasser to land?
[28]	Generally, a trespasser is a person entering someone's land or property without permission.
[29]	The definition of trespass is given in Halsbury’s Law of England (4th ed, Vol. 45) as follows: 
 
“(ii) Wrongs to Property
A.	TRESPASS TO LAND

(A)	   What Constitutes Trespass to Land
1384. Unlawful entry. Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own land onto another’s land.” (Emphasis added)

[30]	Pathik J, in Baiju v Kumar [1999] FJLawRp 23; [1999] 45 FLR 74 (31 March 1999) has cited useful case that dealt with the definition of trespassers, where he said:

In Department of Environment v James and others [1972] 3 All E.R. 629 squatters and trespassers are defined 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 .....”      

There Goulding J. said that:
 
“.....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession.....”
 
Another definition of “trespasser” is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:
 
“A trespasser is a person who has neither right nor permission to enter on premises”.
 
Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] A.C. 877 at 904:
 
“The term `trespasser’ is a comprehensive word; it covers the wicked and the innocent; the burglar, 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”.
 
I agree with Mr. Muaror that the defendants father and his children gained possession of the land only after the plaintiff had given his consent in or about 1970 and for that matter, the physical fact of the defendant’s occupation is that of acquiescence on the land. I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson (1840) 12 Ad. & El 624 where he said:
 
“..... A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner....”
 
The evidence
	Appellant
[31]	At the trial, the appellant gave evidence and tendered his bundle of documents. His evidence was that: the respondent lives in one of the houses on the land. The land was under his father’s name then it was transferred to his mother then to him. It was transferred to him in 1987. The lease expired. He applied for renewal of lease, and the Lands Department approved (‘PEx 5’). The lease document is in Suva, pending registration. The respondent is married to my sister. He told his mother (appellant’s mother) that he will stay in the land for some time. He did not ask his permission when he (respondent) came into possession of the land.
[32]	Under cross examination, the appellant admitted that the respondent is legally married to his (appellant’s) sister. When the respondent suggested that some portion of land was given to him (respondent), the appellant said: ‘I didn’t give land to him’.
	Respondent
[33]	The respondent’s evidence was that: ‘they came to see me if I could marry their older sister. The appellant’s elder brother came. Their sister was sickly. The reason they told me to marry their sister was because no one wanted to marry her. That was in 1976. They said for me to marry their sister and they will give me 2 acres to stay there and look after their sister. I told them I wanted to take her to the village and they told me to stay there and live at 2 acres of land. If I pass away I ask that my children live on that land as I have children with my wife. The appellant was small and we used to live together and we looked after him. I am still living at the land given to me by his mother’.
[34]	During the cross-examination, he confirmed that the appellant’ mother had asked him to come onto the land, and it was a verbal discussion. He said he was not aware of whether the discussion was relayed to Lands Department. 
Determination
[35]	Admittedly, the respondent has been occupying and staying on the land since the time he got married to the appellant’s sister, i.e. he has been in such possession for well over 45 years with the permission of the appellant’s mother, the predecessor in title.
[36]	It will be noted that the respondent’s entry to the land was trespass, he was invited to stay there as a family member after the marriage. According to the respondent, his mother in law asked him to come and occupy the house on the land and promised that 2 acres of the land would be given to him. I have no reason to reject his evidence. His evidence remains unshaken by the cross-examination.
[37]	A trespasser is a person entering someone’s land or property without permission. Halsbury’s (above) says that every unlawful entry by one person on land in the possession of another is a trespass.
[38]	In Department of Environment v James and others (above) ‘squatters and trespassers’ were defined 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’.
[39]	The respondent did not come to an unoccupied house or land without any colour of right. He came to occupy the house or the land with permission and approval of the then owner of the house or the land. At that time, the appellant was not the owner of the property. Therefore, the respondent was not obliged to get permission from the appellant. The appellant was a small boy at that time.
[40]	The respondent’s occupation of the property was a family arrangement. Therefore, consent of the head lessor to occupy the property was not an issue. Consent would be required at the time when the property is transferred to the respondent.
[41]	It was not in dispute that the respondent is staying on the property for over 45 years.
[42]	There is no evidence before the court that the respondent came into possession unlawfully or forcefully. His entry to the property was lawful. 
[43]	A person who entered into or remained in occupation with the licence or consent of the person making the claim or that of any predecessor in title of his or her is not a trespasser.
[44]	In any sense, the respondent does not fall into the category of trespasser to land.
Conclusion
[45]	For all these reasons, I conclude that the respondent entered into and remains in occupation of the property with the consent of the predecessor in title of the appellant, his mother. The respondent has been in such occupation for more than 45 years. He was given permission by the appellant’s mother, the then owner to occupy the property in consideration of her daughter’s marriage with the respondent. The respondent who came to occupy with the consent of the predecessor in title and who is in such occupation for 45 years cannot be labeled as a trespasser. The respondent, in my opinion, is not a trespasser. He has an equitable right to occupy the property. The appellant’s action brought against the respondent seeking vacant possession of the land in dispute on the basis that the respondent is a trespasser fails. I accordingly dismiss the appellant’s action with summarily assessed costs of $1000.00, payable to the respondent by the appellant for the costs incurred here and in court below.
	
The result
1.	Appeal allowed.
2.	Magistrate’s order dated 25 April 2018 is set aside.
3.	Appellant’s action filed in the Magistrates Court is dismissed.
4.	Appellant shall pay summarily assessed costs of $1000.00 to the respondent.

DATED THIS 24TH DAY OF SEPTEMBER 2019 AT LAUTOKA.

……………………………..
M. H. Mohamed Ajmeer
JUDGE

Solicitors:
Samuel K Ram, Barristers & Solicitors for the appellant
Legal Aid Commission for the respondent