IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 131 OF 2003S

Between:

VIDYA VINODHINI
Plaintiff

and

JAGDISH PRASAD (f/n Kampta Prasad)
Defendant

Ms. R. Morris for the Plaintiff
V. Nathan for the Defendant

JUDGMENT

These are summary proceedings for possession brought by the registered owner of a Crown grant, Lot 9 on DP 2410, CT 10861 under the provisions of Section 169 (a) of the Land Transfer Act (Cap 131- the Act).

Under Section 172 of the Act the onus rests on the Defendant to satisfy the Court that he has a right to the continued possession of the land.

In his affidavit in answer the Defendant avers that he is a lawful tenant by virtue of a three year tenancy agreement entered into between himself and one Tika Ram Prasad on 31 March 2001. A copy of the tenancy agreement is Exhibit A to his affidavit. The Defendant also exhibits what he avers to be a copy of a receipt given to him by Mr. Tika Ram Prasad for the sum of $5,200 stated in the receipt to be advance payment of rent for the period August 2002 to August 2004. The receipt is undated. The figure of $5,200 does not appear to correspond with the sum of $480 per month specified by paragraph 2 of the tenancy agreement to be the monthly rent since 24 x 480 = $11,520 and not $5,200.

The principal difficulty facing the Defendant is that the agreement was not made with the previous owner of the property (who from the Certificate of Title exhibited to the supporting affidavit was one Indra Pati) and was apparently not registered.

In the absence of any evidence one can only speculate as to the relationship between Tika Ram Prasad and Indra Pati. There is certainly no basis on which any form of agency relationship between the two can be advanced. The effect of Section 37 of the Act on the unregistered agreement is however entirely clear:

“No instrument until registered in accordance with the provisions of this Act shall be effectual to create [an] interest or encumbrance in, on or over any land subject to the provisions of this Act.”

Furthermore, under Section 39 (1):

“… the registered proprietor of any land subject to the provisions of this Act … shall … except in the case of fraud hold the same subject to such encumbrances as may be notified on the folio of the register, constituted by the instrument of title thereto but absolutely free from all other encumbrances whatsoever except (subparagraphs (a), (b) and (c) which have no application to the facts of this case).”

Even if it was suggested (which it is not) that the Plaintiff had known of the existence of the agreement upon which the Defendant relies then Section 40 of the Act would have afforded the Plaintiff protection.

Mr. Nathan suggested that the Defendant’s affidavit not having been answered, I should take its contents as proved. He also suggested that the Plaintiff’s solicitors had impliedly accepted that the Defendant at least had a monthly tenancy since they purported to give him one month’s notice to quit. While ingenious, I do not find either of these arguments assists the Defendant to discharge the onus imposed upon him by Section 172. As it happens, the Defendant has remained in occupation of the Plaintiff’s house rent free for the more than 9 months which have elapsed since the notice to quit was served upon him.

I am not satisfied that the Defendant has shown a right to the continued possession of these premises. There will be an order for possession in favour of the Plaintiff forthwith.

M.D. Scott
Judge

24 July 2003