Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Chute v Wati [2009] FJHC 247; HBC049.2008 (30 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL JURISDICTION
Civil Action No. HBC 49 of 2008

Between:

ALICK PATRICK CHUTE & ORS
Plaintiff

And :

KAMLA WATI
Defendant

Before: Master Anare Tuilevuka

Counsel:
Mr. Faiz Khan for the Plaintiff
In Person for the Defendant

Date of hearing : (Ruling on Affidavits of Plaintiff filed on 25th March 2008, 23rd June 2008 and on Defendants Affidavit in Reply filed on 03rd November 2008 and on written submissions filed by the Defendant on 03rd November 2008 and for the Plaintiff on 10th November 2008)

Date of Decision: 30th October 2009

RULING

Introduction

[1] This is an application under S. 169 of the Land Transfer Act (Cap. 131 – “the Act”). By the originating summon filed on 25th March 2009, the plaintiffs are seeking an order for immediate vacant possession of the property comprised in Housing Authority sub-lease number 173633.

[2] Under this summary procedure for eviction, the defendants are required to show cause as to why vacant possession should not be given.

Legislation

[3] Section 169 of the Act provides as follows: -

“The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

Background history

[4] Kamla Wati (“Wati” - Defendant in this case, Plaintiff in 113/207 and 309/06 case) is a beneficiary of the estate of one Nagessar Prasad. Nagessar Prasad was Wati’s brother. He owned one undivided half share of Housing Authority Sub-Lease No 173633 (hereinafter “sub-lease” or “property” or “land”). The other undivided half share of the property was owned by Ram Deo (“Deo”), who is also Wati’s brother. The original owner of the property was one Moti Lal (now deceased) who was their father. He had transferred the property to Deo and Nagessar in equal half shares during his lifetime.

[5] Nagessar was single all his life and left no issues when he died intestate on 27th March 1996. The only surviving beneficiaries of his estate were Wati and Deo. On 21st August 2006, some 10 years after Nagessar’s death, Deo executed a transfer of the whole property to one Alick Patrick Chute & Ors (Plaintiffs in this matter) in consideration of the sum of $55,000. Wati deposes in her Affidavit that since birth, she had resided in the property and had been paying ground rent and city council rates in respect of that property. She also deposes in her Affidavit that Deo, on the other hand, had lived on the property only up to the time he got married in 1991 when he moved out with his wife (that is, some four years before Nagessar died).

[6] Deo executed the transfer to Chute & others in his personal capacity and also in his capacity as Administrator of the estate.

[7] At some point around the time of the transfer, in order to protect her interest in the property, Wati filed an ex-parte application and obtained an interim injunction from the Lautoka High Court to stop the transfer. Finnigan J heard the application and granted various orders on 17th October 2006 restraining Deo from transferring the property to Chute & others. As it turned out, Deo had already transferred the property to Chute & Ors and the property was by then duly registered under Chute & other’s name(s) by the time Wati filed her application. This was to be noted later by Phillips J who heard the application to dissolve the injunctions by Chute & others.

[8] In her deliberations, Phillips J had duly considered Wati’s argument that the transfer by Deo to Chute & others was in fact tainted by fraud. Phillips J conceded that fraud, if established, provided an exception to the principle of indefeasibility of title. However, Phillips J said that the law is that what must be established is actual fraud and not just constructive or equitable fraud. Furthermore, she said that the fraud to be proved by Wati must be that of the registered proprietor (i.e. Chute & others) and not just Deo’s fraud. She observed that the allegations of fraud made by Wati were rather general allegations and only against Deo. Phillips J then cited the authority of Wallington –v- The Directors of the Mutual Society (1879) 5 App Cas at 697 that general allegations of fraud are insufficient even to amount to an averment of fraud of which any Court ought to take notice.

[9] Phillips J then dissolved the interim injunctive orders of Finnigan J while commenting in passing that the registered proprietors would have to institute separate proceedings for eviction.

[10] And of course, what is now before me is the registered proprietors’ proceedings for eviction under section 169 of the Land Transfer Act (Cap 131).

Plaintiffs’case

[11] The plaintiffs say that they are the registered proprietors of the property. They caused an Eviction Notice dated 29th of November 2007 to Wati to vacate the said land. The said Notice is annexed to the Affidavit of Luisa O’Connor Waqabaca (who is the third named Plaintiff) and marked “C”.

[12] Waqabaca deposes that Wati continues to neglect and/or refuses to give up vacant possession of the land and remains thereon as trespasser. She annexes to her Affidavit a copy of the Lease which memorialises hers amongst other names as the last registered proprietors thereon. She also annexes a copy of Phillips J’s Ruling. The lease title also has endorsed on it a memorandum showing a Mortgage in favour of FDB registered on 02/11/06. Waqabaca says she continues to pay mortgage repayments to FDB whilst Wati remains illegally on the property. In his submissions, counsel for the Plaintiff highlighted that there was nothing on the title of the said property prior to the registration of Wati’s caveat to suggest to Chute & others that Wati had an interest in the property.

Defendant’s contention

[13] Wati’s Affidavit again challenges the legality of the transfer of the land to the Plaintiffs. She states that she is a lawful beneficiary in respect of one fourth undivided share in the property and is the lawful sister of Deo and the late Nagessar.

[14] She deposes that Deo had applied for Letters of Administration in Nagessar’s estate without her knowledge/consent and had later sold and transferred the property to Chute & others without her consent. She deposes that when her late father Moti Lal transferred the property to Ram Deo and Nagessar jointly, Lal had expressly directed that the property should never be sold as Wati was occupying the property and paying the ground rent and rates. In paragraphs 9 to 18 of her Affidavit, Wati sets out how her father had acquired the land and built a house on it on his life savings. Her father had then transferred the house to her two brothers Deo, and Nagessar upon his retirement so they could complete the house that he had struggled to complete after retirement. Wati deposes that their father had clearly instructed Deo and Nagessar upon transferring the property to them to keep the property in the family as he had invested his entire life’s savings on it. Wati then highlights in her affidavit discrepancies in the valuation of the property and in paragraph 32 of her Affidavit, she blatantly says as follows:

“It is apparent that my brother Ram Deo and the Plaintiffs acted fraudulently in collusion and in conspiracy, in that the Plaintiffs never inspected the interior of the house before deciding to purchase the same; the obtaining of a very low valuation by the same Valuer and keeping the sale of the property a secret in order to defeat my claim” (my emphasis).

[15] Wati annexes to her Affidavit a copy of the Lease title which shows that a transfer that was earlier registered in favour of Chute & others and also the mortgage registered in favour of FDB were cancelled at one stage but were later restored.

[16] Notably, Wati did lodge a caveat, but that was well the transfer to Chute & Others and had been registered.

Determination of the issue

[17] That the plaintiffs are the registered proprietors of the property is not disputed. The defendant has to ‘show cause’ why she should not give up vacant possession.

[18] Sections 171 and 172 of the Act) provide as follows:-

“s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment.”

“s.172. 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.”

[19] I note that there is a pending action in HBC 309/06 in which Wati is suing Ram Deo alleging fraud on Deo’s part.

[20] The Plaintiffs in this action (Chute & others) are named as 2nd Defendants in that matter. There is no allegation of fraud against the Plaintiffs though in the Statement of Claim filed in that matter.

[21] I ask whether the pendency of HBC 309/06 should be a bar to this current section 169 proceedings. That issue was dealt with by the Fiji Court of Appeal case of Dinesh Jamnadas Lalji and Anor v Honson Limited F.C.A. Civ. App. 22/85 where Mishra J.A. said:

“At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act.” (emphasis added).

[22] Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

“.....that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”

Although the defendant has alleged fraud, and which is also the subject matter of the said action instituted by the defendant, there are no complicated questions of fact to be investigated. The procedure under s 169 is most appropriate here. On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

“... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straight forward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

(my emphasis)

[23] The Supreme Court in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) said as follows on the requirements of section 172:

“Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

[24] The Fiji Court of Appeal in Ajmat Ali s/o Akbar Ali and Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) further elaborated on the requirements of section 172 as follows:

“It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words “or he may make any order and impose any terms he may think fit”. These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless “cause” is immediately shown”

Indefeasibility of title

[25] Section 38 provides: (registered instrument to be conclusive evidence of title).

“No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title”.

[26] Section 39 provides:

Section 39(1)

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register constituted by the instrument of title, thereto, but absolutely free from all other encumbrances whatsoever except:-

(a) the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and so far as regards any portion of land that may be by wrong description or parcels or of boundaries be erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and any reservations, exceptions conditions and powers contained in the original grant.

(b) 39(2) Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act.” (emphasis added)

[27] Section 40 states: (purchaser not affected by notice):

“Except in the case of fraud[1], no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.”

(emphasis mine)

[28] The defendant does not really allege ‘fraud[2]’ on the part of the plaintiffs. She merely suspects it because of her belief that the property was sold undervalue[3].

[29] I note that even in the pending civil action (HBC 309/06), there is no substantive allegation of fraud against Chute & others to warrant the attention of this Court.

[30] I note that in their submissions, Wati’s former solicitors (Law Naivalu) had submitted as follows:

3.4 “The defendants new counsel is aware that the court injunction in Action No. 309 of 2006 was dissolved primarily due to the lack of particulars of fraud as pleaded by the defendant’s former solicitors. The substantive action however remains for which an early date has been assigned in 2009 for hearing.

3.5 Hence after obtaining full instructions, the defendant’s new solicitors intend to file a formal application for an amendment to the current Statement of Claim focussing inter alia on the particulars of fraud”

3.6 That prima facie the issue being one of fraud although not properly pleaded and one which the defendants new solicitors intend to address further in an amended pleading the defendant has therefore shown sufficient cause in some form of tangible evidence establishing an arguable right that she remain in possession”

[31] The issue of fraud has not been decided against Ram Deo. I am convinced though that it should not be bar to this section 169 application which can now be dealt with independently of the other case without having to await the outcome of the decision in that case. Wati’s allegations of fraud against the Plaintiffs in this case are in my view, baseless based on the material in the Affidavit before me. I say that of course without prejudice to Wati’s right to adduce further relevant material (if any) before the judge in HBC 309/06, but there is nothing before me now that convinces me that she has shown cause not to give up vacant possession.

[32] Neither am I inclined to wait and see how Wati might amend her Statement of Claim to improve her pleading of fraud against Chute & others.

[33] The following passage from the judgment of Lindley L.J. in Asset Co’s case is pertinent in the context of this case showing the strength of the plaintiffs as having a better title than that of the vendor:

“In dealing with actions between private individuals, their Lordships are unable to draw any distinction between the first registered owner and any other. A registered bona fide purchaser from a registered owner (and that is the case here) whose title might be impeached for fraud has a better title than his vendor, even if the title of the latter could be impeached by the Crown.

[34] In addition to what I have said hereabove on the subject of fraud for the purposes of the present action, I would like to quote the following extract from an article by Peter Butt on ‘Conveyancing and the Rights of Persons in Occupation’ in Volume 55 ALJ (1981) 119 at 122:

“This narrow meaning of the term “fraud” in the Real Property Act has been evident in pronouncements of the High Court also. For example, in Butler v Fairclough [1917] HCA 9; (1917, 23 CLR 78 at 97), Issacs J. said that what was contemplated by “fraud” was “actual fraud, moral turpitude (ibid at 90)”, and Griffith C.J. said that it imported “personal dishonesty or moral turpitude”. A few years later, in Wicks v. Bennett [1921] HCA 57; (1921, 30 CLR 80 at 91) Knox C.J. and Rich J. said that “fraud”, as that term was used in s.43 of the Real Property Act 1900 (N.S.W.) meant “something more than mere disregard of rights of which the person sought to be affected had notice”. In Stuart v. Kingston [1923] HCA 17; (1923, 32 CLR 309 at 359) Starke J. said: "Fraud will no longer be imputed to a proprietor registered under the Act unless some consciously dishonest act can be brought home to him. The imputation of fraud based upon the reinforcements of the doctrine of notice has gone." And the Privy Council, in a later case, expressed the view: "If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear..... The act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest (Waimiha, supra)."

Conclusion

[35] To sum up, section 169 provides a summary and expeditious method of obtaining possession. This is applicable to cases where there are no complicated questions of fact and legal inferences. The case before me is a straightforward case of the plaintiffs as registered proprietors who are entitled to apply for vacant possession.

[36] There is no imputation of fraud against the plaintiffs d on the evidence before me and on the authorities the allegation does not hold any water in so far as the present action is concerned so as to affect the plaintiffs’ title in question.

[37] If Wati has any claim, it would have be against Ram Deo. But that is for another day in another pending civil action.

[38] Wati has not ‘shown cause’ to my satisfaction why she should not give vacant possession of the property as required under section172 of the Act.

[39] In the outcome, the plaintiffs, who are the last registered proprietors of the property, for the reasons given hereabove and on the authorities, are entitled to immediate vacant possession of the same irrespective of the pendency of the said civil action against them and Ram Deo as defendants.

[40] It is therefore ordered that the defendant do give immediate vacant possession of the property to the plaintiffs within 2 months of the date of the sealing of the Order with costs to the Plaintiff which I summarily assess at $300-00 to be paid within 14 days.

[41] Meanwhile, Civil Action HBC 309/06 is to be adjourned before me on 13th November 2009 for mention to review documentation before I transfer it to the Mr. Justice Inoke for hearing.

A. Tuilevuka
Master

30th October, 2009.

^[1] “Fraud” in the context of the Torrens system was interpreted by the Privy Council in Assets Company, Limited v Mere Roihi & Others [1905] UKLawRpAC 11; [1905] A.C. 176 at 210. Lord Lindley delivering the judgment of their Lordships said as follows and this is apt in considering the allegation of fraud in the present case:

“by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead but often used, for want of a better term, to denote transaction having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Land Acts, must be brought home to the person whose registered title it impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shewn that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged has been fraudulently or improperly obtained it not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon.

^[2] In considering the ‘fraud’ aspect in this application I have borne in mind the ‘test of fraud’ as stated by Salmon J in the following passage in the New Zealand Court of Appeal case of Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1923] NZGazLawRp 32; [1923] N.Z.L.R. 1137 at p.1175:

“The true test of fraud is not whether the purchaser actually knew for a certainty the existence of the adverse right, but whether he knew enough to make it his duty as an honest man to hold his hand, and either to make further enquiries before purchasing, or to abstain from the purchase, or to purchase subject to the claimant’s rights rather than in defiance of them. If, knowing, as much as this, he proceeds without further inquiry or delay to purchase an unencumbered title with intent to disregard the claimant’s rights, if they exist, he is guilty of that wilful blindness or voluntary ignorance which, according to the authorities, is equivalent to actual knowledge, and therefore amounts to fraud ...”

^[3] Interestingly the same principles as stated in Assets Co (supra) are found in the Fiji case of Caldwell v Mongston (Action No. 2 of 1908, 2 FLR p1). There it was held that it was “not competent for the Court to go behind Certificate of Title unless obtained by fraud: or a title has been obtained by adverse possession.” There C. Major, C.J. found that there was no fraud, but he said:

“.....it has been contended for the defendant that the plaintiff was not an innocent purchaser for value he well knowing what has been called the defendant’s outstanding interest acquired by statute at the time that he purchased Solo. The contention could not be successfully maintained in that form even if the plaintiff had that knowledge for it would have to be classed as fraud on the plaintiff’s part. But it would not have been that fraud which the Lords of the Privy Council laid down is necessary to establish before a man’s Certificate of Title can be done away”.