Fiji Law Reports

“Where a person claims possession of whicalleges is occupiccupied solely by a person or persons (not (not being a tenant or tenants holding over after the termination of the cy) who entered into or remained in occupation without his 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.”

The questio Court’#8217;s determination is whether the plaintiff is entitled to possession under this Order. To decide this the Court o consider the scope of the Order. This aspect is covered in detail in The Supreme reme Courttiractice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:

&#82is Order does noes not prov new remedy, but rather a new procedure for the recovery ofry of possession of land which is in wrongful occupation by trespassers.&#

As to the applicati thif this Order it isit is further stated thus:

&#8he application oion 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 occupolely by a person or persons who entered into or remain in n 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 Ordenarrowly conficonfined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:

I carefully considered ered all the affidavit evidence adduced in this case and the written and oral legal submissions from both counsel.

The facts as I hound thnd them are that the defendant came on to the land with his father as a child and has lived there continuously for thirty years and made improvement to the house he is occupying. He has paid the “penal rent rent” for the plaintiff (see Annexure J to Plaintiffs affidavit of 8.7.98). Now after so many years of him occupying the land as a licensee (term used by plaintiff), he is being evicted under Order 113 which as already stated is applicable inter alia, to a trespasser.

The factsot reveal that that the defendant is a trespasser on the land. He continued living there as a licensee even after his father’s death in 1995. The notice to quit dated 30 April 1998 whichgiven to him does not statestate that he is a trespasser; it says “your father has since passed away and you had become a nuisance in my land, and that you without any approval decided to allocate yourself a block of my land”.

The defenhas vigorouslyously opposed the application to evict him under Order 113. I agree with the Mr. Muaror, the learned counsel for tfendant, that the defendant and his father entered upon the land in 1970 with the plaintiffntiff’s consent and has lived there all along ever since. It was, agreed between them that the defendant’s father will pay the penal rent which he did followed by payment by the defendant after the death of his father.

On the facts of this ctse, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.

Order 113 is effectivppy applied with regard to ion of squatters or trespassers. In [1972] 3E.R. 629 squatter tter trespassers are defined as:

&;he is e is one whne who, without any colour of right, enters on an unoccupied house or lantending to stay there as long as he can .....” &160; ـn

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There GoulJ. said that:that:

“A trespassea is a person whoneither right nor permissioission to enter on premises”.

Also as aid by Lord Mord Morris of-Borth-Y-Gest in BriRailwoard v. Hetoingtoington [1972] A.C. 87904::

&#822 term `trespasespasser’ is a comprehensive it c the wicked and tand the innocent; the burglar, the arrogant invader of another’s lans land, the walker blindly unaware that he is sng where he has no right toht to walk, or the wandering child - all may be dubbed as trespassers”.

I agree with Mrror that that the defendants father and his children gained possession of the land only after the plaintiff had given his consenor about 1970 and for that matter, the physical fact of the defendant’s occupation ison is that of acquiescence on the land. I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson (182 Ad. & El 624 wherewhere he said:

“..... spassepasser may in any case be turned off land before he has gained possession, and hs not possession until there has been something like aike acquiecquiescence in the physical fact of his occupation on the part of the rightful owner....”

Thendant’s counseounsel has raised one other point and that is that the plaintiff is not the sole lessee of the said land and therefore it is improper to issue notice to quit on his own accord without the endorsement of the other joint owner or his legal representative.

I agrth this contentionntion of counsel for it was held by Hammett PJ in Kanji Jogia and Others v Bhagwandas Hargovind and Others 12 FLR 180 that: &#8220tice to quit giit given by only two of the three lessors waffective to determine the lease”.

I woul would say thatr rder 113 is akin summary procedure under s169 of the&#160ref="http://www.paclii.org/.org/fj/legis/consol_act/lta141/">Land Transfer Act Cap. 131. It is anctive ande and speedy relieproperty owners in cases whes where tenants or other persons have no right to continue to stay in possession.

As can be from vidence ence before this Court that the defendant main maintains that he has the right to stay on the land whereas the plaintiffutes it. There are triable issues and these cannot be resolved in a summary manner by affidaffidavit alone. The following statements from the Court of Appeal case of Ambika Prasad f/n Ram P yare v. Santa Wati f/n Kali Charan, Bissun Deo f/n Jag Deo App. No. 38/9538/95s - FCA Reps. 98/130) which concerned s169 are apt to suit the circumstances of this case:

To ude, for these reasoreasons particularly because of the dispute as to possession between the parties it is not possible to make the order sought in the summons without going to trial.
&#160In these circumstances I co I could either make an order dismissing the Summons or order that this action be entered for trial like a writ action. Before making an order in this regard I would like both counsel to address me on this. The costs of this action is to be borne by the plaintiff to be taxed if not agreed.

(Order for possession refused.)