The High Court in Suva has dismissed an application by a company seeking an order to remove 800 occupants residing at the Veidogo Settlement in Vatuwaqa, Suva, so they can properly develop their land.
K Bhindhi Bros Pte Ltd (Plantiff), the registered owner of the land, claims the land had been trespassed by a substantial number of people that have no legal right or interest in the land.
The court records of this civil action shows there are several hundred residents living on the property. On it are 139 households, 155 dwellings and 798 individuals, including 295 children.
According to the occupiers, the settlement has been in existence for at least 60 to 80 years and is not just a home to 800 occupiers, it has become a community.
They say the original inhabitants cut mangroves to build her houses, and over the years, from at least the 1960s, there had been a considerable amount of land used to keep the sea out.
The stories provided by 20 occupiers as per the judgment are quite different but shared some common strands which showed the occupation occurred largely in one of two ways.
The original inhabitants, who appear to have been mainly iTaukei, moved onto the land between the 1940s and the 1960s living among themselves, believing these were the fishing grounds of the local mataqali. While most of this group were iTaukei there were also Indo-Fijian inhabitants as well.
The families remained in the settlement and generational descendants are now living there while most have no dealing with the plaintiff. Their occupation of this land could not have been easy since it was (and possibly still is) swampy land.
Justice Dane Tuiqereqere in his judgement delivered on May 21 noted the occupiers for many years did not have electricity or running water.
The court also heard a second group moved to the settlement since their families had previously been in a settlement situated on another of the plaintiff’s parcels of land. The plaintiff moved them to the Veidogo settlement in 1995.
The occupiers claim they were given promises by the plaintiff which have not been fulfilled.
Others claim traditional customary rights on the basis that the land is on the foreshore, and they have permission from the custody owners.
They claim a right to possession from the traditional owner of the fishing grounds upon which mangroves are growing.
For this reason alone, Justice Tuiqereqere said the occupier’s rights and interest in the land were not clear or straightforward.
The deponents also attached a writ of summons for a 1998 civil proceeding brought by Ratu Mosese Tuisawau against the Registrar of Titles, the Attorney-General and the plaintiff in the present proceedings.
The occupiers claim the previous proceedings lent some weight to their assertion that the land they occupy is part of the foreshore.
They also annexed a newspaper article published on October 25, 2018. According to the article, an agreement had been reached between the Government and the plaintiff to relocate families at Veidogo to Makoi in Nasinu.
The agreement being that once relocated, the inhabitants would receive blocks of land with lease titles and the plaintiff had agreed to contribute $1000 to each family for the relocation costs.
But the plaintiff denied many of the assertions made by the occupiers, arguing the welfare of the occupiers was the responsibility of the state and not the landowners.
Justice Tuiqereqere said he was of the view that this was not a clear case warranting the use of summary jurisdiction to make orders under Order 113.
He said after carefully considering the evidence produced by the parties, there were too many questions regarding the occupiers’ rights to possession of the land which they were occupying.
The judge acknowledged that the plaintiff was the registered owner of the Vatuwaqa property but “that unfortunately is where any clarity ends”.
Justice Tuiqereqere said the following questions remain unclear: Is the Vatuwaqa property on mangrove land? If so, is it part of the foreshore? Was it part of the foreshore when the original inhabitants commenced living on it? And if so, has landfill played a role in pushing out the sea edge?
The plaintiff addressed potential defences for the occupiers, such as adverse possession, proprietary estoppel, and promissory estoppel, and while the plaintiff argued that the occupiers do not qualify under any of these heads, Justice Tuiqereqere was “not so convinced”.
Justice Tuiqereqere said the plaintiff had produced a re-issued Certificate of Title from 2016, but the plaintiff does not provide details when it became the registered owner and provides inadequate details to support its vague assertion that the occupiers were “trespassers and/or illegal squatters.
“It is difficult to consider the occupiers to be trespassers when they have been permitted by the plaintiff either expressly or implicitly through inaction to reside on the land for several decades and for generation after generation,” stated Justice Tuiqereqere.
“There is no evidence that the plaintiff sought over that time to remove the occupiers or their ancestors. I am satisfied that the occupiers have raised a serious question regarding their right or interest to possession of the land they occupy on the Vatuwaqa property.
“A summary proceeding is not an appropriate process to determine the plaintiff’s right to recover possession and effectively remove 800 inhabitants of the subject land. The matter is more suitably determined by a way of a writ of summons.”
The judge has not referred to the arguments from the Human Rights & Anti-Discrimination Commission, a party in this proceeding but the evidence produced, and the submissions offered were helpful and provide a practical pathway.
The commission submitted for the plaintiff to develop a comprehensive housing relocation plan for the defendants and put it into operation after extensive consultations with the Government agencies such as Housing Assistance Relief Trust (HART) Fiji.
“Given the consequences of eviction on the considerable number of families living on the land, it would be in the interests of all parties for the plaintiff to enter into some discourse with the occupiers and other interested parties to find a workable solution,” Justice Tuiqereqere concluded.
The 184 occupiers in this civil proceedings are represented by lawyer Jagath Karunaratne from Karunaratne Lawyers.
