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Fantasy Company of Fiji Ltd v Thompson [2005] FJHC 478; HBC0380J.2002L (7 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0380 OF 2002

Between:

THE FANTASY COMPANY OF FIJI LIMITED
Plaintiff

- and -

EDWARD HENRY THOMPSON
Defendant

Counsel: Mr. S. Maharaj for the Plaintiffs
Mr. J. Sharma & Mr. S. Nandan for the Defendant

Date of Hearing: 30th September, 2005
Date of Judgment: 7th October, 2005

JUDGMENT

There is a long history of dealings and disputes between the plaintiff company the Fantasy Company of Fiji Limited the defendant, Edward Thompson, shareholders and directors. There are and have been several court proceedings. Mr. Thompson and his wife occupy Lot 19 on land known as Wailoaloa Beach in the Province of Ba.

The company has brought proceedings pursuant to Section 169, 170 and 171 of the Land Transfer Act Cap. 131 and pursuant to the inherent jurisdiction of the Court. The plaintiffs say that the defendant has no right to possession of Lot 19 and request an order requiring the defendant to give immediate vacant possession.

The defendant in response says that as a previous director of the Fantasy Company he was permitted to occupy Lot 19 and now has an enforceable right to possession.

Section 169 of the Land Transfer Act gives the last registered proprietor of land the ability to summon any person in possession of the land to appear before a Judge in Chambers to shew cause why that person should not give up possession to the applicant.

Section 172 states:

“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:”

This does not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled.

I have before me the summons itself, the affidavits of Abbas Ali dated 27^th November 2002, 3^rd April 2003, 6^th April 2004, 5^th May 2004, 15^th October 2004 and 4^th February 2005 and the affidavits of Edward Thompson dated 20^th March 2003 and 27^th April 2004.

The defendant says in essence that his wife bought the house on the land. He has been in possession for several years. As a result of his dealings with the company he has the right to have transferred to him an interest in the land. This, in itself, in the circumstances of this case would be insufficient to resist the summons under section 169. However, there is an unresolved case HBC0111 of 2003 which is pending before the court. The plaintiffs in that case are two others involved in this company and Edward Thompson. The first defendant is the Fantasy Company and there are second defendants.

At paragraph 3 of the Originating Summons in that action there is a claim for “a declaration that Lot 18, Lot 19, Lot 20 and Lot 21 on ... [the land] ... known as Wailoaloa Beach are held by the 1^st defendant on trust for the 3^rd named plaintiff, Edward Henry Thompson”.

This case has not yet reached its conclusion. In effect the defendant says that to grant the order requested in this case would be to pre-empt the outcome of those proceedings.

The plaintiff responds by citing the judgment of Mr. Justice Gates in Action HBC61 of 2001 delivered on the 29^th of March 2004. Mr. Thompson was a defendant in that action. The plaintiffs, certain directors and shareholders of the company and the company itself had obtained various orders including one against Mr. Thompson preventing him from interfering with the plaintiffs’ running of the company. The plaintiffs had brought an application for committal for contempt against Edward Thompson on the grounds that he had interfered with the running of the company by lodging caveats against a number of the lots of land including Lot 19. Edward Thompson was found to have been in breach of the restraining order by the lodging of those caveats (save one).

The plaintiffs’ in this case cite the following two passages from the judgment: “There was no caveatable interest held by the accused contemnor (Mr. Thompson) in Lot 19 for he had no legal or equitable interest in that lot”, (paragraph 31). Further, they cited paragraph 38 “I conclude that the accused contemnor had no valid or caveatable interest to protect to permit him to lodge caveats against lots 19 and 21”. He was fined $1,000.00 and in default of payment to serve 30 days in prison. He was ordered to pay $2,000.00 towards the plaintiff’s costs.

Mr. Thompson did not appeal that decision within the set time limit. However, he did ask for leave to appeal out of time and this was granted by Mr. Justice Ward on 16^th February 2005 (ABU0004.2005S). He was given seven days to file his notice and grounds but failed to do so. Accordingly the appeal lapsed and the judgment of Justice Gates stands.

The plaintiffs therefore say there has already been a finding by a Judge of the High Court that this defendant has no legal or equitable interest in the land, he has no interest which can be protected by a caveat and therefore an order should be made for his immediate removal.

I have read the judgment of Justice Gates. It is pertinent to note that he did not find a contempt had been committed by the lodging of a caveat in respect of Lot 20. After considering this particular lot the Judge came to the conclusion that “whilst reasonable suspicions might be entertained about the memorandum, the question of its genuiness and whether it gives rise to a caveatable interest in Lot 20 cannot be resolved in these proceedings by affidavit. The matter will no doubt be resolved after evidence is taken in Lautoka High Court Action HBC0111 of 2003L. Accordingly I disregard the attempted lodging of a caveat against Lot 20 as evidence in favour of the movers case for contempt”.

It would appear from the reading of the judgment of Gates J. that the full arguments advanced by the defendant in respect of his claim to an interest in the land were not placed before Justice Gates. Further, whilst the finding of contempt was made on the affidavits before Justice Gates, there was no cross-examination in respect thereof and it was not a proceeding specifically directed to the determination of the rights, if any, of Mr. Thompson in respect of the lots of land.

I do not in any manner act by way of appeal or review of the determination of Justice Gates. However, the proceedings and determinations to be made and their effect which are before me are different from those before Justice Gates.

It would appear that the defendant has an arguable case for a right to possession of Lot 19 and that he is seeking to pursue that right through civil case HBC0111 of 2003L. I pass no comment upon the likelihood of its success. The proceedings envisaged by section 169 Land Transfer Act are not the kind for resolution of genuine and possibly complex arguments over rights in land. Accordingly I refuse to make an order for vacant possession of Lot 19.

It should be noted that Mr. Thompson’s wife is also apparently in possession of the land jointly with Mr. Thompson. Further, the defendants raised the question whether a properly certified copy of the lease lodged with the Registrar of Titles was before the court. The plaintiff’s counsel stated that such a certified copy was in his possession but not in court or specifically attached to any affidavit.

I have considered whether or not to give directions within the context of this case to further the resolution of the various disputes. However, I cannot see any that would assist in those resolutions. The possession of Mr. Thompson of Lot 19 is dependent upon the outcome in case HBC0111 of 2003L. Accordingly this summons is dismissed.

(R.J. Coventry)
JUDGE