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Matawalu v Tamanisau [2011] FJHC 316; HBC220.2010L (2 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 220 of 2010L

BETWEEN:

ETUATE MATAWALU
Plaintiff

AND

NEMANI TAMANISAU
1st Defendant

AND

SAKARAIA BARI
2nd Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr A Patel (Plaintiff)

Second Defendant by his rep Mrs Blake

Solicitors: S B Patel & Co (Plaintiff)

Second Defendant self represented

Date of Hearing: 5 April 2011

Date of Judgment: 2 June 2011

INTRODUCTION

[1] On 28 January 2011, Master Tuilevuka ordered that the Defendants vacate a Housing Authority lease registered in the Plaintiff's name. The order was made pursuant to s 169 of the Land Transfer Act [Cap 132]. The judgment is reported in Matawalu v Tamanisau [2011] FJHC 27; HBC220.2010 (28 January 2011).

[2] Since the order was made, the First Defendant has left but the Second Defendant has remained in occupation. This is his appeal against the Master's order.

REPRESENTATION OF THE SECOND DEFENDANT

[3] The Second Defendant is not legally represented. However, I gave Mrs Blake leave to represent the Second Defendant even though she is not a legal practitioner, she having appeared in this Court on previous occasions and assisted unrepresented clients quite competently.

THE BACKGROUND

[4] The facts as appear from the Master's judgment were that the land and house in question was previously registered to the Defendants' brother, Sitiveni. Sitiveni migrated to New Zealand in 2002 and left his brothers and their families occupy his house. The property was mortgaged to the Housing Authority. Default in repayments having occurred, the Housing Authority advertised the property for mortgagee sale in August 2008. The Plaintiff tendered successfully and on 19 April 2010 became the registered proprietor.

THE MASTER'S JUDGMENT

[5] The Master's reasoning is contained in the following paragraphs of the judgment:

[4]. Once it is shown that the plaintiff is the last registered proprietor, the onus then shifts to the defendants to show cause as to why vacant possession should not be given (see section 172 of the Land Transfer Act). In discharging that burden, the defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169.

[5]. This does not mean that he has to prove conclusively a right to remain in possession. On the contrary, it is enough to show some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

[9]. The plaintiff is the last registered proprietor. He has a clear title. There is nothing in the defendants' affidavit that alleges that the plaintiff might have secured his title through his own fraud.

[10]. Hence, as a bona fide purchaser for value who is now the registered proprietor, the plaintiff's title is protected more or less beyond impeachment by virtue of sections 38, 39 and 40 of the Land Transfer Act (Cap 132).

[13]. In this case, the defendants have not even made any general allegation of fraud against the plaintiff.

[14]. Furthermore, the fraud to be proved by the defendant must be that of the registered proprietor (i.e. the plaintiffs) and not just Housing Authority of Fiji.

[15]. I have traversed the defendants' affidavit in detail. They depose that they were the ones that constructed the dwelling house and made payments on it. They also extended the house. They explained how they were ready, willing and able to settle the amount on the Demand Notice from their FNPF funds and had started talking to the Housing Authority about it. They claim to have a vested interest over the property and despite all this, the Housing Authority went ahead and sold the house to the plaintiff. They say the Housing Authority did not act properly and did not fully explain to them the situation about the accounts at a time. They make suggestions on how Sitiveni's account might be restructured and how "the unfortunate "new buyer" would of course get his money back, and the transaction be declared void".

[16]. To do that would of course offend the principle of indefeasibility espoused under section 40 (see above).

[17]. All the defendants' gripes are against the Housing Authority. They can of course pursue a separate common law claim against the Housing Authority if they are adamant about their cause. If they were to – the remedies open to them would be limited to compensation for damages. Undoing the plaintiff's title would then still be out of the question because of section 40.

THE CURRENT APPLICATION

[6] On 2 March 2011, the Second Defendant filed a Summons for leave to appeal out of time, stay of execution and leave to join the Housing Authority as third party.

[7] As to the last order, joinder of the Housing Authority at this stage is clearly not possible at law and is therefore refused.

[8] The application was supported by the Second Defendant's affidavit which went into detail as to why he says the foreclosure and mortgagee sale by the Housing Authority was improper. The same allegations were made in his affidavit that was put before the Master.

CONSIDERATION OF THE APPLICATION

[9] The Master's judgment was delivered on 28 January 2011 and the order sealed on 2 February 2011. Order 59 Rule 9(a) of the High Court Rules 1988 (HCR) provides that the appeal must be filed within 21 days from the date of the delivery of the order or judgment. The appeal period therefore ended on 18 February 2011.
[10] Order 59 Rule 10(1) of the HCR allows the appellant to apply to a Judge for an extension of time after the time set for appeal had expired. The application is to be by way of inter-parte summons supported by affidavit [O 59, R 10(2) HCR]. The appellant may also apply for a stay in the same way [O 59, R 16 HCR].

[11] Mr Justice Byrne AP, said in Silver Beach Properties Ltd v Jawan [2009] FJCA 40; Miscellaneous Action 08.2009 (2 December 2009) that:

The principles on which extension of time are granted by the Courts are well settled. The court has an unfettered discretion which has to be judicially exercised. However as stated by Tomkins, J.A. in BDO SPICES AUCKLAND TRUSTEE COMPANY LTD v. NLTB and ORS (2003) FJCA 67 at paragraph 35 the test is not simply that an applicant for an extension of time to appeal must have a good arguable case but rather that he has a good arguable appeal.

[12] Does the Second Defendant have a good arguable appeal? Section 172 of the Land Transfer Act provides:

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;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

...

(my emphasis)

[13] It seems to me that the learned Master was unduly swayed by the indefeasibility of title provisions of the Act. He has cited the law correctly but has erred in limiting his consideration of the Defendant's right to occupation as between the parties to the application. There is not doubt that he recognised that there was a real possibility of impropriety by the Housing Authority. That is clear from paragraphs 14 – 17 of his judgment which I quoted above.

[14] Section 172 of the Act, as emphasised above, in my opinion, does not limit proof of a right to possession as against the registered proprietor. Once the defendant has shown a right to possession, by "some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2)", whether it be against the proprietor or some other person, he has shown sufficient cause and "the judge shall dismiss the summons with costs against the proprietor or he may make any order and impose any terms he may think fit". This construction is fortified by the proviso which allows the proprietor to take other proceedings. What must always be borne in mind is the summary nature of an application under s 169.

[15] It is true that at the end of the day, the Second Defendant's claim may be just compensation against the Housing Authority. But it is equally as true that the Plaintiff may find his claim to be simply compensation payable by the Housing Authority, not because he may have done something wrong, but because he had acquired his title through the impropriety of the Authority against the Second Defendant in circumstances which equity may not allow his legal title to take precedence. I use the word "impropriety" as a general term as I am conscious of the possibility that other proceedings may follow and I do not wish to limit or foreshadow the causes of action open to them. But, whatever the alleged impropriety or those circumstances were, should be left to be determined in a full trial. It would be quite inappropriate in my view for them to be decided in a summary procedure.

[16] I therefore come to the view that the Second Defendant's appeal has good prospects of success and therefore grant leave to extend the time to appeal.

SHOULD THE APPEAL BE ALLOWED?

[17] Should I grant the appeal now? All the material that is to be considered on appeal, both affidavits and submissions, is now before the Court. I do not think any party will be prejudiced by my considering the appeal proper now. Besides, considerable time and expense would be saved. I therefore go on to consider it.

[18] For the reasons given above, I am of the opinion that the appeal would be successful and therefore allow it. I think the Master should have refused the Plaintiff's s 169 application and left the parties to take whatever other proceedings they considered necessary.

[19] It is not necessary to make any orders to stay the Master's order.

COSTS

[20] The Second Defendant is not legally represented so I therefore make no order as to costs.

ORDERS

[21] The orders are therefore as follows:

1. Leave to extend time to appeal is granted.
   
2. Appeal is allowed.
   
3. The order for eviction and costs made by Master Tuilevuka on 28 January 2011 is set aside as against the Second Defendant.
   
4. There is no order as to costs.
   

............................................................
Sosefo Inoke
Judge
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