IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 344 of 2020

IN THE MATTER of an application under Section 169 of the Land transfer Act 1971

BETWEEN

CHINA HUASHI ENTERPRISES CORPORATION a corporation duly registered in China and having its registered office at 95 Jiefang Lu Erduan, Chengdu, People’s Republic of China.
PLAINTIFF

AND

SOHADAT ALI of Korvisilou Village, Serua.
DEFENDANT

Counsel: Mr. E. Wainiqolo for the Plaintiff
Mr. M. Kumar for the Defendant
Date of Hearing: 30th November 2022
Date of Judgment: 08th June 2023

JUDGMENT

[1]	The Plaintiff filed this summons pursuant to section 169 of the Land transfer Act 1971 claiming vacant possession of the land described in the Certificate of Title Register volume 36 folio 3535 as Navacau in the district of Serua having an area of 150 acres. 

[2]	In support of the summons an affidavit has been deposed by Ms. Ulamila Tuituku, Principal of the law firm acting for the Plaintiff.

[3]	Ms. Tuituku states that she has received the authority from the Plaintiff company to depose an affidavit for the purpose of this case and a copy of the letter of authority provided together with the affidavit. 

[4]	The affidavit states that the Plaintiff company purchased the subject land in 1999 from China Sichuan Corporation for International Techno Economic Corporation for a consideration. In early 2019 representatives of the Plaintiff company visited Fiji and attended to the property where they found constructed dwellings and number of persons residing on the same. Plaintiff then instructed their Solicitors at that time, to have the occupants removed from the land. Accordingly Notice to Vacate had been issued on 04th November 2019. 

[5]	On 26th November 2019 the Defendant through his counsel informed the Plaintiff’s Solicitors that the Notice which was issued to his deceased father, and that the Defendant is in uninterrupted occupation of approximately three acres for upwards of sixty five years and during the period there had been improvements on the land worth approximately $200,000. 

[6]	The Plaintiff in February 2020 instructed a registered surveyor to redefine the boundaries of the land to identify the encroachments. The report states that there is an existing building occupied by some people, small garage and a water tank within the land.  

[7]	The Plaintiff company on 18th June 2020 sent another Notice to Vacate before filing this action. Plaintiff states that there has been no response to the second Notice to Vacate.

[8]	The Defendant in his affidavit in opposition takes up a preliminary objection to the affidavit deposed by Plaintiff’s Solicitor on the basis of the information provided based on hearsay. Further he states that the Plaintiff purchased the subject property with the knowledge of his interest to occupy the property. Plaintiff has served a notice to Defendant’s late father which he responded through his lawyers. Plaintiff thereafter did not take any action until 2019. Defendant states that subsequent two notices requesting to vacate the land had been issued to his late father and not on him. 

[9]	The Defendant further states that his Vesting Order application for an undivided 3 acres of the subject land is currently with the Registrar of Titles and it is in the process.      

[10]	Section 169 of the Land Transfer Act 1971 (the Act) provides:
The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-
(a)	the last registered proprietor of the land;
(b)	a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;
(c)	a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

[11]	Section 172 of the Act provides:
If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit;
Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:
Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

[12]	In the case of Attorney General of Fiji v Premium Plastics Ltd [2014] FJHC 159; HBC297.2013 (14 March 2014) it was held:
The scope of the hearing of the application under section 169 constitutes with two main limbs. The first is the onus of the Plaintiff to satisfy the court that he is the last registered proprietor or the lessor described under the section 169 (a), (b) and (c) of the Act. Once the Plaintiff satisfied it, the burden will shift on the Defendant to satisfy the court that he has a right to the possession of the land. 

[13]	In the case of Morris Headstrom Limited v Liaquat Ali C.A. No.153/87 the following observations were made by the Court of Appeal:
"Under Section 172 the person summoned may show cause why he refused to give possession of the land, if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favor. The Defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." 

[14]	The Defendant’s position is that the Plaintiff’s affidavit evidence is insufficient to seek relief under section 169 of the Land transfer Act. 

[15]	There are several legal authorities discussing on the issues of affidavits sworn by third parties to an action. In re Media Metro Ltd, [2016] FJHC 1073; Winding Up No. 33 of 2015 (25 November 2016) the Debtor Company applied for extension of time to file Affidavit in Opposition which application was supported by Affidavit of Legal Executive employed by Debtor Company’s Solicitors. The Court held that; “The swearing of affidavits by solicitor’s clerks in contested proceedings should be a rare exception and the reason why the party is unable to depose ought to be explained”. Petitioning Creditor opposed the Application for Extension of Time and Court held that it was a contested proceeding. Court also noted that no explanation was given as to why Respondent Debtor was not able to depose the Affidavit in Support.

[16]	In the recent case of Paul v Director of Lands  [2020] CBV0018 of 2019 (9 June 2020) it was held that when Third Party (including Law Clerks/Legal Executives/Litigation Clerks) depose Affidavit on behalf of a party to the proceedings then he/she:-
(i) must be authorised in writing by that party to depose such Affidavits;
(ii) must depose as to why that party and if a Company than why its director or authorized officer cannot depose the Affidavit;
(iii) must not depose Affidavits on basis of information or belief but depose facts the deponent has knowledge of those facts except where:
(a) Affidavit is in support of or in opposition to Application for Summary Judgment;
(b) Affidavit verifying facts in respect to action for specific performance pursuant to Order 86 of HCR only if directed by Court to do so;
(c) Affidavit verifying evidence of facts during trial when directed by Court to do so pursuant to Order 38 Rule 3 of HCR.
(iv) may depose Affidavits in support of or in opposition to interlocutory application but must do so on the basis of information received which they believe to be true and must disclose the source of such information or beliefs in addition facts that is within their personal knowledge.
[17]	Ms. Tuituku’s affidavit does not explain any reason as to why the Plaintiff company or a Director of the company is unable to depose an affidavit. During the hearing of this matter, Plaintiff’s counsel Mr. Wainiqolo stated that the affidavit was prepared in a time where Covid 19 related travel restrictions were in place.  I am unable to accept this proposition in the absence of any satisfactory evidence by the Plaintiff to support the same.     
 
[18]	It is clear that Plaintiff retained Ms. Tuituku’s legal services post November 2019. But according to the Defendant this dispute between his father and the Plaintiff goes back to year 2004, when the Plaintiff served a notice to his late father. Hence the events relating to this dispute between 2004 and 2019 were undoubtedly not within the personal knowledge of Ms. Tuituku. My concern is not based on any conflict of interest, it is about the credibility of such affidavits in a judicial proceedings. 

[19]	Therefore the question before the Court is whether it can safely rely on such evidence provided solely by way of an affidavit. I am unable to accept such evidence as basis for my judgment. Thus the Defendant should not be called to show cause, based on such affidavit of the Plaintiff.     

[20]	On the other hand the Defendant states that the Plaintiff knew that he has been in occupation of the property. The Defendant provides proof of the vesting order application over CT3535 that he has lodged with the Registrar of Titles on 23rd June 2020. The Defendant further states that both Notices to Vacate had been served on his deceased father and therefore they were ineffective.     

[21]	Mere fact that the Defendant has applied for a vesting order would not become a bar to have 169 proceedings against him. In Muthusami v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the view:
“...that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”   

[22]	However the fact that the Defendant has been in occupation of the property over 65 years and that he has carried out improvements worth approximately $200,000 have not been challenged by the Plaintiff as there was no reply to the affidavit of the Defendant. 

[23]	On the aspect of summary nature of 169 procedure in Ram Narayan v Moti Ram (Civ. App. No. 16/83 FCA) Gould V.P. said:
“...the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

[24]	In my view the Defendant has an arguable case here as per Morris Headstrom Limited v Liaquat Ali.

[25]	On a separate note, due to the reasons earlier mentioned about the affidavit of the Plaintiff and that there has been no response to the stance taken up by the Defendant, it would be equally difficult for the Court to consider this matter under Order 113 Rule 1 of the High Court Rules 1988. Order 113 is primarily aimed at people who come into a land as squatters or were given a licence which has been terminated and then refused to depart. The Defendant has expressed his challenge to any action to evict him for the reasons stated in his affidavit.       

[26]	Therefore the Plaintiff’s action fails. Accordingly the Court makes following orders.    

ORDERS
1.	The Plaintiff’s Summons filed on 13th November 2020 hereby dismissed.
2.	Plaintiff to pay cost of $1500 (One thousand five hundred dollars) to the Defendant within 14 days of this judgment. 

Yohan Liyanage
JUDGE
At Suva on 08th June 2023