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Macdonald v Sovanivalu [2011] FJHC 664; HBC189.2011 (21 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

No. HBC 189 of 2011

IN THE MATTER of part XXIV of the Land Transfer Act Cap. 131

BETWEEN:

RYAN RICHARD MACDONALD on behalf of Andres Lehestiko pursuant to a Power of Attorney No. 51329 granted on 11 May 2010.
PLAINTIFF

AND:

ANARE TOGA EDWARDS SOVANIVALU of Pacific Harbour, Deuba in Fiji, Bank Officer.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Singh K. of Jamnadas & Associates for the Plaintiff
Mr. Vasaro of Mamlakah Lawyers for the Defendant.

Date of Hearing: 23rd September, 2011
Date of Ruling: 21st October, 2011.

RULING

1. INTRODUCTION
   

1. The Plaintiff has filed this action as the power of attorney holder of one Andres Lehesitiko, who is the registered proprietor of the property, for eviction of the Defendant from the premises. There was a sale and purchase agreement between the parties and a part payment was also made in pursuant to the said agreement. The Plaintiff has allowed the Defendant to occupy the premises and to make improvements to it,till finalization of the transfer, but has withdrawn from the said agreement to sell the premises. Said Andres Lehesitiko has written a letter through his lawyers who represented him at that time to the Defendant on 20th April, 2010 and has granted an ultimatum of 7 days to settle the remaining sum, but allegedly the title was retrieved by said Andres long before this ultimatum and did not allow the transfer to be completed and the mortgage document with the bank could not be endorsed in the absence of the title being available. So the parties are at variance as to who breached the agreement and whether there was a time period for settlement in the absence of express provision and who should be liable for damages etc. The Defendants also claims improvements to the property and also states that due to the acts of Plaintiff, the bank that approved the mortgage facility in order to purchase the property has requested additional charges to make available the said loan for further period of time.
   

2. FACTS
   

2. The registered proprietor of the land in issue is Mr. Andres Lehesitiko, a foreigner, and this action is instituted by his power of attorney.
   
3. Said Mr. Andres Lehestik had approached the Defendant to purchase the land comprised and described in Certificate of Title No 16357 being all that portion of the freehold land described more particularly as Lot 11 of Deposit Plan No. 4042 known as Deuba (part of) and containing an area of 1 road 7.1 perches and dwelling house and other improvements therein.
   
4. The Parties have agreed to a sale price of $85,000 which the Defendant had to pay to Andres Lehestik in consideration of the Property and the Defendant stated that he had organized a bank loan with Colonial National Bank in order to facilitate the purchase of the Property.
   
5. Sales and purchase agreement had been signed by the parties and that agreement is dated 6th of November 2009.A copy of it is annexed and marked as AS1 and the parties have admitted the signing of sale and purchase agreement though the Plaintiff now denies what was signed as a sale and purchase agreement.
   
6. Admittedly a deposit of $3,000 was paid to Andres Lehestik with the remainder to be paid through a loan that the Defendant was organizing with his Bank.
   
7. That on the 19th of November 2009, the loan was approved in order to purchase the property.
   
8. The Defendant allege that in the month of December 2009 when Andres Lehestik was to come and sign the transfer documents and instead of signing the transfer documents already prepared, uplifted the Title and left the office without coming back.
   
9. The Plaintiff state that the transfer and payment was to be effected within two weeks from the signing of sale and purchase agreement, but there is no indication of such time of settlement in the sale and purchase agreement annexed AS1.
   

100. LAW AND ANALYSIS
     

Preliminary objection of locus standi of the Plaintiff

10. At the outset the Defendant objected to Plaintiff instituting this action as the power of attorney holder, in terms of Section 169 of the Land Transfer Act. There was no express provision of law prohibiting any power of attorney holder from instituting action in terms of Section 169 of the Land Transfer Act. The power of attorney is annexed to this application by way of originating summons and in clause 16 of the said document grants the Plaintiff inter alia to do any acts that Mr. Andres could do. So, this authority granted in the power of attorney enables him to institute action on behalf of the registered proprietor in the absence of express prohibition in law. The lawyer for the Defendant was unable to produce such provision and the preliminary objection for locus standi is overruled. At the same time I would like to state that though an action can be filed by the power of attorney holder when there is express provision in the power of attorney to that effect, it is desirable that the power of attorney holder substantiate the evidence of facts in the affidavit through the registered proprietor if he cannot swear as to those facts involve in the issue.
    
11. Section 172 of the Land Transfer Act states that "if a 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 and 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 persons summoned to which he may be otherwise entitled." The burden is shifted to the Defendant to satisfy the court that he has a right to possession of the land in dispute. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision.
    
12. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
    

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land 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." (emphasis is mine)

13. In this case the Mr. Andres and Defendant has signed a sale and purchase agreement that was annexed as AS1 to the affidavit in opposition. This document was revealed by the Defendant and though the Plaintiff has admitted signing of the document, he states that it does not constitute a sale and purchase agreement but in contrary to this position taken by the Plaintiff the said admitted document marked AS1 state as follows
    

'This "Sale and Purchase Agreement" will be fully executed by both of us by signing hereunder and a witness to finally seal it.......'

It is clear that the said contract is a sale and purchase agreement, and the counsel for the Plaintiff was unable to show why it should not be considered as a sale and purchase agreement when all the intent and deeds of the parties proves otherwise, and parties have acted on it and a part payment was also made and Defendant entered in to possession of the premises and allegedly made improvements.

14. It is also noteworthy that there is no time period for the execution of the transfer and payments to be effected. In the circumstances a reasonable time period should be allowed. Defendant state that with in one month he was able to obtain a mortgage from Bank, but couldn't finalize as the title was not available with the lawyers.
    
15. In the affidavit in reply to the affidavit in opposition filed on 22nd September, 2011 at paragraph 5 stated that the sale was conditional and the Defendant was to settle the payments within 3 weeks, but in contrary to this a letter written by Mr. Andres on 2nd December, 2009 stated as follows
    

'I refer to your letter of 6th November, 2009 which was executed by me on the understanding that payment was to be made within 2 weeks.'

16. So, the position taken in December 2009 was that only 2 weeks were granted for full settlement of the loan, but in this application the Plaintiff is indicting that 3 weeks were granted for the Defendant to settle the full amount. In contrary to any of the said contradictory positions, there is no indication of time for settlement of the said sale and purchase. In the absence of such express provision a reasonable time should be granted.
    
17. The letter addressed to the Defendant by the lawyers for the vendor on 20th April, 2010 has granted 7 days from that date to settle the full amount, but by that time the title has been uplifted and Defendant could not have secured a mortgage by that time. So, it is clear that the registered proprietor has changed his position from time to time and even in this action taken contradictory positions on the said transaction.
    
18. The Defendant sate that the delay in the sealing of this sale and purchase of the Property was engineered and orchestrated by Andres Lehestik himself when he took the title away from the office of Neel Shivam Lawyers deliberately as without the document, the transfer could not be effected.
    
19. The Defendant further state Andres Lehestik moved from his given address at Great Habour Drive, No 952, Pacific Habour, Deuba and he was not able to trace or contact him so that he could bring the Title and honour the agreement; and state that said Andres continued to avoid him and all his effort to contact him was to no avail.
    
20. The Defendant has instructed his Solicitors to write a letter to Andres Lehestik dated 7th of April 2010 informing him that he had a sales and purchase agreement to honour.
    
21. Defendant's Solicitors received a letter dated 14th of April 2010 in response to their letter above suggesting that another person by the name of Avin Prakash held a Power of Attorney of Andres Lehestik and has also stated that Defendant would be compensated for the improvements to the property if the receipts for improvements were submitted, but categorically stated that Mr. Andres did not wish to proceed with the sale. Said letter of the lawyers for Mr. Andres is annexed AS6. From that letter it is clear that the Defendant has done improvements to the property with the knowledge of the proprietor and Mr. Andres did not want to proceed with the sale.
    
22. Again through another solicitor Mr. Andres wrote another letter of 20th of April 2010 giving me 7 days further to make good the Agreement. The said letter is annexed and marked as AS7.
    
23. The Defendant state that the Mortgage Documents of the Bank had already been prepared for the signature but it was not able to be endorsed since the Title of the Property had been retrieved by Andres Lehestik deliberately so as to never allow the transfer to be completed and at the same time.
    
24. It is clear that under the circumstances the Defendant has shown more than a right to stay in possession of the land. The registered proprietor has withdrawn from the sale relying on an alleged 'unwritten condition' that the sale price has to be paid within 2 weeks. This is again not clear whether is 2 weeks or 3 weeks, but again he had contradicted both time periods by a letter dated 20th April, 2010, more than 5 months after the agreement was signed, which allowed further 7 days.
    
25. It was clear that though a letter was written on 20th April, 2010 giving an ultimatum that was not followed up and no opportunity was given to fulfill the said condition and the said offer made on 20th April, 2010 was not genuine effort to allow the Defendant to purchase the property. This is clear as letter dated 14th April, 2010 expressly indicated that Mr. Andres 'wished to withdraw from the deal'. So, within 7 days why he changed his mind cannot be understood easily as no explanation is given.
    

4. CONCLUSION
   

26. In the circumstances it is clear that Defendant has shown 'tangible evidence establishing a right or supporting an arguable case' for such a right to remain in the property as held in Morris Hedstrom Ltd (supra). The Defendant has admittedly done some repairs and the proprietor has indicated his desire to compensate if receipts were produced. So this summons for eviction should be dismissed with cost assessed summarily at $750 to be paid within 21 days.
    

5. THE FINAL ORDERS
   

1. The summons for vacant possession filed on 1st July, 2011 is dismissed and struck off.
   
2. The Plaintiff to pay a cost of $750 within 21 days to the Defendant assessed summarily.
   

Dated at Suva this 21st day of October, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva