IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

Civil Action No. 223 of 2022
BETWEEN:
APAMMA of Veisaru, Ba in the Republic of Fiji, domestic Duties, as the sole Executrix and Trustee of the Estate of SUBRAMANI  also known as SUBRA MANI late of Veisaru, Baa in the Republic of Fiji, Retired Salesperson, Deceased, Testate.
PLAINTIFF/APPELLANT

AND:	
SHIRI RAMLU whose last known location is Veisaru 2, Bulu, Ba.
DEFENDANT/RESPONDENT

Appearances: 		Mr. Gordon for the Plaintiff/Appellant
Ms. Liga for the Defendant/Respondent

Date of Hearing:		 15 June 2023
Date of Judgement: 	01 September 2023

R U L I N G

INTRODUCTION

1.	On 13 February 2023, Gordon & Company filed a Notice and Grounds of Appeal against an Order of the Master which was delivered on 23 January 2023. What was then before the Master was an Originating Summons filed by the plaintiff, (“Appamma”), under sections 169, 170 and 171 of the Land Transfer Act 1971. The land in question is legally described as Veisaru 2, in the Tikina of Bulu in the Province of Ba, and more fully described and contained in i-TLTB Agreement for Lease dated 29 June 1993 having i-TLTB Re No. 4/1/3702 (“property”).

2.	Appamma is the surviving widow of the late Subramani. The defendant, Shri Ramlu, is Subramani’s brother and Appamma’s brother in law. Appamma had filed the Originating Summons seeking an Order that Shri Ramlu (“Ramlu”) and his family vacate the property.

APPAMMA’S CASE 

3.	Appamma’s section 169 application was premised on the following case theory:

(i)	she (Appamma) is the sole executrix and trustee of the estate of Subramani (Probate No. 67711)
	
(ii)	on 29 June 1993, Subramani executed an Agreement for Lease over the property. Thereafter, she and Subramani lived on the property.
	
(iii)	Subramani dies on 12 October 2020. She (Appamma) then applied for Transmission By Death of the property
	
(iv)	Ramlu also lives on the property. But he is a trespasser/unlawful occupier. Appamma has asked Ramlu on many occasions to vacate the property but to no avail.	

SHIRI RAMLU’S CASE

4.	By his affidavit in opposition sworn on 11 October 2022, Ramlu deposes as follows:

(i)	their (Ramlu’s and Subramani’s) late father, Bangaraiya, was the owner of the property in question.
	
(ii)	Bangaraiya died testate on 26 December 1986.	

(iii)	
upon Bangaraiya’s death, Probate No. 22663 was granted to Subramani on 28 May 1987 (with Will annexed).
	
(iv)	the Will is dated 03 June 1982. In it, Bangaraiya makes the following bequests:

I GIVE DEVISE AND BEQUEATH all my real and personal estate and property of whatsoever wheresoever situate or being and of what nature or kindsoever including any property over which I may have a power of appointment or disposition UPON TRUST:

(a)	
Two (2) acres of land for house site out of my Native Land known as Veisaru 2, Native Land Trust Board Reference No. 4/1/3296 situate at Veisaru, Ba and more particularly my Farm Number 1297 Veisaru Sector to my son SHIU NARAYAN for his sole use and benefit and upon his death his share shall vest in the male issues of my said son Shiu Narayan;

(b)	
The rest and residue of my property including my sugar cane Contract Number 1297 to and unto my wife RAOAMMA daughter of Ram Sami of Veisaru in the district of Ba in the Dominion of Fiji occupied in domestic duties for her life and UPON her death to and unto my sons SUBRAMANI SHIRI RAMLU and SURENDRA PRASAD all of Veisaru in the district of Ba in the Dominion of Fiji into equal shares share and share alike absolutely

	
(v)	as evident in clause (b) of the Bangaraiya Will, he (Ramlu) has a beneficial interest and share in the property and is therefore entitled to be on the property. Furthermore, he (Ramlu) has contributed and shared in paying the annual rental on the property over the years. In fact, the last rental payment was made on 10 June 2021 by Ramlu himself.
	
(vi)	Ramlu has even had electricity and water connections to the property in his name. This would not have been possible if he was an illegal occupant.

MASTER’S DECISION

5.	Following the filing of the Affidavit in Opposition on 12 October 2022, the matter was called on 27 October 2022 and on 23 January 2023. On both these occasions, Appamma’s counsel had sought time to file affidavit in Reply. The Master did grant Appamma time to file an Affidavit in Reply by 24 November 2022, and then adjourned the case to 23 January 2023.

6.	On 23 January 2023, Appamma’s counsel sought further time to file an Affidavit in Reply. However, Ramlu’s counsel objected.	 The Master decided to strike out the Summons with costs in favour of Ramlu which he summarily assessed at $1,000 – 00 (one thousand dollars only). On the Court records, the Master had noted as follows:

On perusal of the supporting affidavit, it is clear that the Plaintiff is not the registered proprietor, which is the first condition to invoke the jurisdiction of the Court under section 169 of the LTA.

The Agreement for Lease issued in favour of Subramani is not even registered under any (sic)

Therefore, it is an abuse of process to invoke the jurisdiction of this Court when the information is not registered under any laws in Fiji.

I strike out the Summons with cost of $1,000 to be paid to the Defendant within 14 days.

7.	There are nine grounds of appeal filed by the appellant. These are as follows:

a.	The Learned Master erred in law and/or in fact in summarily dismissing and striking out the Plaintiff/Appellant’s Originating Summons filed on 9th August, 2022. 
	
b.	The Learned Master erred in law and/or in fact in summarily and striking out the Plaintiff/Appellant’s Originating Summons filed on 9th August 2022 when the matter was for mention only on 23rd January, 2023.
	
c.	In making and/or pronouncing the orders that he did and/or make on 23rd January, 2023 the Learned Master erred in law or in fact by breaching the Plaintiff/Appellant’s rights as enshrined in Section 15 of the Constitution of the Republic of Fiji. 
	
d.	In making and/or pronouncing the orders that he did and/or make on 23rd January, 2023 the Learned Master erred in law or in fact by breaching the Plaintiff/ Appellant’s rights as enshrined in Section 15 of the Constitution of the Republic of Fiji. 
	
e.	In making and/or pronouncing the orders that he did and/or make on 23rd January, 2023 the Learned Master erred in law or in fact in not exercising his powers and/or jurisdiction, in a judicious manner, and in accordance with well-established principles.  
	
f.	The Learned Master erred in law and/or in fact refusing an adjournment and/or in refusing to grant further time for the filling of an Affidavit in Reply by the Plaintiff/Appellant.
  	
g.	The Learned Master erred in law and/or in fact when he made orders and/or gave judgment without giving a reasonable opportunity for/to the Plaintiff/Appellant to put all the relevant and material facts before the Honorable Court as the Plaintiff /Appellant was entitled to. 
	
j.	In making and/or pronouncing the orders that he did and/or make on 23rd January, 2023 the Learned Master erred in law and/or in fact by misinterpreting and/or misconstruing and/or failing to correctly interpret and/or construe Land Transfer Act 1971 and in particular Sections 169, 170, 171 and 174.
	
i.	In summarily dismissing the Plaintiff/ Appellant’s Originating Summons filed on 9th August, 2022 the Learned Master erred in law and/or in fact by depriving the Plaintiff/Appellant from making an application under Section 174 of the Land Transfer Act 1971. 	

DOES THE MASTER HAVE JURISDICTION?

8.	In my view, the Constitutional foundation of the High Court of Fiji must be the starting point of any analysis of the question.  Section 100(1) of the 2013 Constitution provides:

The High Court consists of—

(a) the Chief Justice; 
(b) such other Judges as are appointed as Judges of the High Court; 
(c) Masters of the High Court; and
(d) Chief Registrar of the High Court. 

9.	If the High Court “consists of” inter alia the Master’s Court, it means that the Master’s Court is a component of the High Court. This then begs the question, if the Master’s Court is a component of the High Court, then where is the line drawn between what they each can do?

10.	To answer that question, one must look at the jurisdiction which the law gives each of them.

11.	Section 44(3) of the Constitution provides that the High Court has original jurisdiction as follows:

(3) The High Court has original jurisdiction— (a) to hear and determine applications under subsection (1); and (b) to determine questions that are referred to it under subsection (5), and may make such orders and give such directions as it considers appropriate.

12.	Section 100(3) of the Constitution provides that the High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings:

(3) The High Court has unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other original jurisdiction as is conferred on it under this Constitution or any written law. 

13.	In contrast, under section 100(2) of the Constitution, the Master’s Court’s jurisdiction is prescribed by written law:

 (2) The jurisdiction and powers of the Masters of the High Court … shall be prescribed by written law.

14.	The basic difference between the two, in as far as civil proceedings are concerned, is that, while any civil proceeding may be filed or instituted or begun in the High Court on the basis of the Constitution – on the other hand – as for the Master’s Court, it is only if a particular written law authorizes it so – may a particular type of legal proceeding be filed or instituted or begun in the Master’s Court.

15.	Section 163 of the Constitution defines “written law” as follows:

“written law” means an Act, Decree, Promulgation and subordinate law made under those Acts, Decrees or Promulgations.

16.	The first Act which must be consulted in this regard is the High Court Act.  Section 2 of the High Court Act defines “Court” or “High Court” as follows:

“Court” or “High Court” means the High Court established by the Constitution of the Republic of Fiji. 

(see also sections 3(2), 5(1) and section 18 of the High Court Act)

17.	Section 21A of the High Court Act provides:

Provision may be made by the Rules of Court for the jurisdiction of the Court to be exercisable, in such cases and subject to such conditions as are specified in the Rules of Court, by a Master or by the Chief Registrar as the Rules may specify.

18.	Section 21B(1) provides:

For the purposes of the exercise of jurisdiction conferred on the Masters by the Rules of Court, this Act has effect, subject to this section, as if the Court consisted of the Judges and the Master.

19.	The question which then arises is whether or not the Rules of Court qualify as a “written law” under section 163 of the Constitution and, in particular, whether the Rules of Court can be considered as “subordinate law” within the contemplation of section 163 of the Constitution.

20.	Section 163 defines “subordinate law” as follows:

“subordinate law” means any instrument made in exercise of a power to make the instrument conferred by an Act, and includes regulations, rules, orders, by-laws or declarations;

21.	The question then becomes, whether or not the Chief Justice’s power to make the High Court Rules is a power conferred by an Act of Parliament?

22.	Section 25(2) of the High Court Act gives the Chief Justice the power to make rules of court in order to carry the High Court Act into effect. In fact, it was in the exercise of the power under section 25 that the Chief Justice Sir Timoci Tuivaga made the High Court Rules 1988 which came into force on 31 March 1988 and which are still currently in use in Fiji.

(2) It shall be lawful for the Chief Justice to make rules of Court carrying this Act into effect and in particular for all or any of the following matters (that is to say)– 

(a) 	for regulating the sittings of the [High Court] for the dispatch of civil business therein and of a judge sitting in chambers; 
(b) 	for regulating the pleading, practice and procedure in the [High Court] in civil cases and in matters which in Her Majesty's High Court of Justice in England come within the jurisdiction of the Crown side of the Queen's Bench Division thereof; 
(c) 	for regulating the hours of opening and closing the offices of the Court (d) for regulating the forms to be used in the Court and for all matters connected therewith;
(e) 	for regulating the receipt of money paid into Court, or received or recovered under or by virtue of any process of execution or distress;
(f) 	for regulating the payment out of Court of all moneys to the persons entitled thereto; 
(g) 	for prescribing the books and forms of account to be kept and used in the [High Court]; 
(h) 	for prescribing fees, costs and amounts for service and execution of process which may be demanded and received by the Sheriff and officers of the Court in connexion with the practice and procedure of the [High Court]; 
(i) 	for prescribing the manner of acceptance, retention and disposal of fees and costs; 
(j) 	for providing for the taxation of the fees and costs of legal practitioners;
(k) 	generally for regulating any matters relating to the practice and procedure of the Court or to the duties of the officers thereof or the costs of proceedings therein

23.	So having said that, the question then becomes, whether, it was within the power of the Chief Justice to make Order 59 Rule 2(k) which gave the Master the power to hear uncontested applications under section 169 of the Land Transfer Act?

24.	If the answer to the above is “yes”, is it within the powers of the Chief Justice to amend Order 59 Rule 2(k) by extending the power of the Master to hear contested applications under section 169?

25.	To answer that, I return to starting point of section 100(1) of the Constitution from which I extract the following:

(i)	the High Court has unlimited original jurisdiction to determine any civil proceeding (section 100(3)).
(ii)	the Master’s Court is a component of the High Court (section 100(1)).
(iii)	although the Master’s Court is a component of the High Court, the Master’s Court does not possess the unlimited original jurisdiction which the High Court has (section 100(2))
(iv)	instead, the Master’s Court only exercises jurisdiction which is conferred upon it by written law (section 100(2)).
(v)	a fortiori – a written law which purports to confer jurisdiction upon the Master’s Court can only confer a portion of such jurisdiction which vests in the High Court. 
(vi)	there are of course some aspects of the jurisdiction of the High Court which cannot be conferred upon the Master even by a written law (e.g. appellate jurisdiction of the High Court etc)

26.	I accept that sections 169, 170 and 171 of the Land Transfer Act grant jurisdiction to the High Court Judge. The Chief Justice may, by virtue of his powers under section 21A and section 21 B of the High Court Act, make provision in the High Court Rules for the jurisdiction of the High Court to be exercisable by the Master in such cases and to such conditions as the Chief Justice may specify in the Rules and where the Chief Justice makes such provision, section 21B then takes effect deems it as if the Court “consisted of the Judges and the Master”.

27.	Hence, the reference to “judge in Chambers” and “judge” in sections 169 and 171 of the and Transfer Act, and section 2 of the Act Interpretation Act – must be read subject to all of the above.

28.	As to the Master’s decision, I am of the view that the Master was entitled to dismiss the application based on an assessment of the evidence set out in the affidavits before him. On that note, I must state here, as both counsel are no doubt aware of, that in such an application as a section 169 application, which is intended to be determined summarily on the basis of the affidavits filed, an applicant lives or dies by the founding affidavit. A crucial piece of evidence such as the registration status of a particular piece of land – must be adduced in the founding affidavit.

29.	The application before the Master was a “chamber application” in the sense that it required no viva voce evidence and the Master was entitled to make a decision based on the evidence filed in the affidavits.  As to the issue about whether or not the appellant was a “registered proprietor”, there was nothing in the affidavits filed to indicate that the Agreement to Lease in question was registered under any scheme (Registration or the Land Transfer Act or under the Agricultural Landlord & Tenant Act).  I rely on Madam Justice Wati’s judgement in Habid v Prasad [2012] FJHC 22; HBC24.2010 (17 January 2012). 

30.	The appellant will just have to file a fresh application under section 169 with clear evidence of registration.

CONCLUSION

31.	Costs to the Respondent which I summarily assess at $1,000-00 (one thousand dollars only).

……………………………..
Anare Tuilevuka
JUDGE
Lautoka

01 September 2023