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Maharaj v Vunirova [2012] FJHC 984; HBC350.2011 (23 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 350 of 2011

BETWEEN:

PRANEEL PRAKASH MAHARAJ

of Nadawa, Nasinu, Fiji, Research Fellow.

APPLICANT

AND:

JONE VUNIROVA (Junior) and
JONE VUNIROVA (Senior)
Lot 8 IBO Road, Nadawa, Nasinu, Fiji, Prison Officer and Retired.

DEFENDANTS

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Nand M. for the Plaintiff (applicant)
Mr. Vakaloma for the Defendants

Date of Hearing : 16th February, 2012

Date of Ruling : 23rd March, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff is the last registered proprietor of the property in issue. The Defendants who are father and son were the previous registered proprietors of the property. It was subjected to a mortgage and when the Defendants defaulted the payments the Plaintiff through a private sale obtained from the Defendants. The transfer document was executed, but now the father who is the second named Defendant in his affidavit state that he forged the signature of his son, who is the first named Defendant. So, the 2nd named Defendant, is alleging fraud, and state that 1st named Defendant was unaware of the sale and since he forged the signature of his son, the said transfer is illegal and both Defendants should remain in possession of the premises. No allegation of fraud against the Plaintiff and if at all, it is clear that the Plaintiff who was not tainted with any fraud or deceit should not be penalized for any alleged act of the father (2nd named Defendant) against the son (1st named Defendant). The indefeasibility of the title is not vitiated by the actions of the 2nd named Defendant, and in any event both of them are residing in the premises and represented by one solicitor and clearly acting in collusion, and this has deprived the Plaintiff the enjoyment of fruits of the property. No, indication of fraud established from the conduct of the Defendants.
   

2. FACTS
   

2. The Plaintiff has filed Originating Summons dated 15th November 2011 supported by an Affidavit sworn by the Plaintiff on 14th November 2011 seeking for an Order under Section 169 of the Land Transfer Act seeking vacant possession of the property comprised in Housing Authority Lease No: 439932, Lot 8 on DP 7622 to the Plaintiff.
   
3. The 1st and 2nd Defendants have both filed Affidavits in Opposition sworn on 16th March 2012 after failing to comply with the directions of the court to file affidavits in opposition.
   
4. The Plaintiff has filed a response to the Affidavits of the 1st and 2nd named Defendants which was filed on 20th March 2012.
   
5. On or about 11th July 2011, the 2nd named Defendant entered into an Agreement to sell the property to the Plaintiff and his wife for the sum of $75,000.00. The property was subjected to a mortgage and they were on the property in pursuant to a lease hold rights that derived from the lease agreement with the Housing Authority.
   
6. The property in issue is a residential premises, and the Defendants have obtained a mortgage from the BSP Bank and there were charges on the property by the FNPF. At the time of the purchase from the Defendants the said obligations have not been met by the Defendants.
   
7. The lessees (the Defendants) had signed a transfer of lease and the said transfer document dated 17th day of August, 2011 is attested by solicitors.
   
8. That after the settlement was executed the Defendants failed to honour clause 6 of the said Sales and Purchase Agreement and were subsequently served with notice to vacate dated 8th October 2011.
   
9. That on the 18th day of October 2011 a Notice to Quit to be served on the Defendants requesting them to vacate the property within 7 days and the Defendants failed to vacate the land despite the aforesaid Notice.
   

100. ANALYSIS
     

10. The Defendants are opposing the application. However the 2nd named Defendant admits that he signed the Sale and Purchase Agreement. He also admits signing the transfer document but as far as the signature of his son (the 1st Defendant) is concerned he says he was coerced into duplicating his son's signature on the Transfer document but it is important to note that the Plaintiff was not implicated in that action of the 2nd Named Defendant's forgery.
    
11. The main contention of the Defendants is that the transfer document was not signed by 1st Named Defendant. 2nd Named Defendant, who is the father of the 1st Named Defendant state that he forged the signature of his son, but strangely not even a police statement was made and the son has not even tried to secure his rights through a caveat. At the moment the Defendants are residing in the same premises, preventing the Plaintiff from obtaining the vacant possession and both Defendants are also represented by one solicitor and their affidavits will indicate that the same affidavit is being used for both, even without changing the averments in to first person, as normally done in affidavits.
    
12. The 1st Defendant in his Affidavit in Response says he was not aware of the sale of the property and that he has never executed any sale and purchase agreement. He says that only one undivided half share of the property has been sold to the Plaintiff by his father but both father and son are represented by the same solicitor and both are in possession of the property and none has taken steps to secure their rights and the allegation of fraud is nothing but a 'sham' considering the facts and circumstances of the case.
    
13. If one closely examines the two affidavits filed by the two defendants are alleging identical facts and even the two affidavits have not made necessary changes and the same allegation in one affidavit has been used in the other affidavit and has not converted it to first person as required, this clearly indicate Defendants acting very closely to each other and is not the normal behaviour of a person whose property rights are deprived by a fraudulent act.
    
14. The 1st Named Defendant is alleging that he was unaware of the sale and his share of the property was transferred without his consent, by his father. Strangely, the 2nd Named Defendant, who is the father of the 1st Named Defendant, admitted that he forged his son's signature, but both the Defendants are represented by one solicitor and there is no animosity between the Defendants and both are seeking to stall the proceedings for eviction of both of them. This indicate collusion between the Defendants to deprive the Plaintiff, the possession of the property.
    
15. The affidavit in opposition of the 1st Named Defendant is verbatim reproduction of the averments contained in the affidavit in opposition filed by the 2nd Defendant, and this indicate a very close behaviour of the two defendants even now, after the alleged fraud committed by the 2nd Named Defendant to 1st Named Defendant.
    
16. The 2nd Named Defendant state that he had forged the son's signature in the transfer document, but there were various other communications which both the Defendants have placed their signatures. So, whether all the documents were forged or not is not clear and taking the affidavit evidence in toto it clearly indicate a collusion between the Defendants as they are in possession of the property and also represented by one solicitor and seeking identical relief.
    
17. The 1st Defendant says further that during the alleged time of execution of the transfer document his signature had been forged and he denies that he has met the witnessing Officer; Henry Mechael Rabuku for the purpose of executing any transfer document. If what is stated in the affidavits in opposition is correct there should be at least a complaint against the lawyer, but there is none and all the allegations are only confined to the affidavits and conduct of the parties do not corroborate or substantiate the serious allegations made in the affidavits in opposition.
    
18. The 1st Defendant says that he had no intention to dispose or sell of his property to any body and that he has been meeting its loan service ability with Colonial National Bank. In that event why he did not complain to the police has not been explained. The 1st Named Defendant has not even lodged a caveat on the property and this conduct clearly establish that the Defendants are acting in consort to deprive the Plaintiff of his proprietary rights and or delay possession of the property, which under the circumstance is inevitable consequence, to the Defendants.
    
19. The application by the Plaintiff has been made under Section 169 of the Land Transfer Act, Cap 131 which 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.

20. If the Defendants oppose the application and files the Affidavit in opposition then under Section 172 of the Land Transfer Act it provides that;
    

"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...."

21. In the case of SHAH – v- FIFTA (2004) FJHC 299, HBC 0392J. 2003S (23RD June 2004) where the Court took into consideration Section 38, 39 and 40 of the Land Transfer Act Cap 131.
    
22. Under Section 38 of the Lands Transfer Act Cap 131 it states that;
    

"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".

23. Furthermore as per Section 39 (1) of the Land Transfer Act Cap 131, Pathik J in this case; SHAH –v- FIFITA (supra) was of the view that a registered instrument is conclusive evidence of Title.
    

Pathik J further emphasised on section 40 of the Land Transfer Act Cap 131 as follows:

"Except in the case of fraud, 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".

24. In this matter, the Plaintiff and his wife's names are on the registered instrument hence it is evidence enough that the Plaintiff and his wife are the last registered proprietors on the Title.
    
25. In the case; Chute-v- Wati (2009) FJHC 247; HBC 049.2008 which was also an application under Section 169 of the Land Transfer Act, there were 2 owners having one undivided half share each. One of the owners namely Deo in his capacity as administrator of the estate and in his personal capacity executed the Transfer of the property to one Alick Chute and Others. Later one of the beneficiaries of the estate, Wati filed action claiming that the transfer by Deo to Chute and Others was in fact tainted by fraud. Philips J. conceded that fraud, if established, provided an exception to the principle of indefeasibility of Title. However, Philips 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 fraud to be proved by Wati must be that of the registered proprietor (i.e. Chute and 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. Philips J then cited the authority of Wallington-v-The Directors of the Mutual Society (1879) 5 App Case 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.
    
26. Santa Wati –v- Ambika Prasad, High Court Civil Action No: 44 of 1992 in which fraud in a registered land transaction was described by Justice Pathik as follows:
    

"Mere Knowledge on the part of the Plaintiffs of Defendants occupation is insufficient to constitute fraud in them (but fraud is not alleged against them but against Charan")

27. In EngMee Young and Others (1980) Ac 331 in which Lord Diplock stated that:
    

"The Torrens system of land registration and conveyancing as applied in Malaya by the National Land Code, has as one of its principle objects to give certainty to land and registrable interests in land. Since the instant case is concerned with Title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By S.340 the title of any person to land of which he is registered as proprietor is indefeasible except in cases of fraud, forgery or illegality, and even in such cases a bond fide purchase for value can safely deal with the registered proprietor and will acquire from him on indefensible registered title".

28. In the absence of any fraud on the part of the Plaintiff, the 2nd Defendants allegations cannot be considered having any merit. If there is any fraud, that fraud is by the 2nd Defendant against the 1st Defendant, and parties to the fraud should not be benefited from the said fraud. If I dismiss this application for eviction the Defendants will remain possession and this will be advantageous to all the Defendants who are being represented by one solicitor and acting in consort and has virtually filed identical affidavits in opposition indicating clear collusion on their part. In the analysis of the evidence before me it is clear that this behaviour cannot be considered as normal behaviour of a person whose proprietary rights have been deprived through fraud. Even on this summons for eviction, the Defendants did not filed their affidavits in opposition in time and that delay also indicate the seriousness of the parties in this eviction procedure.
    
29. The Plaintiff state that the Transfer document was executed before a qualified witnessing Officer and refers to the attestation clause of the Transfer document, which reads as follows;
    

"The Signature of JONE VUNIROVA (Junior) and JONE VUNIROVA (Senior) were made in my presence and I verily believe that such signatures are of the property handwritings of the persons described as JONE VUNIROVA (Junior) and JONE VUNIROVA (Senior) both of Lot IBO Road, Nadawa, Fiji Prison Officer, and Retired, the Transferors, and I certify that I read over and explained the contents hereof to them in the English/Hindustani Language and they appeared fully to understand the meaning and effect thereof.

SGD: HENRY MICHAEL RABUKU

SOLICITOR, VALELEVU, FIJI

30. The 1st Defendant allegations therefore that he did not sign the Transfer does not have merits as apart from his statement there is no evidence submitted to support that the signature on the Transfer document is not his and furthermore the allegation of fraud is not made against the Plaintiff. The 1st Defendant has not disclosed evidence that suggests that the Plaintiff had any actual knowledge of any fraud by anyone when he dealt with the 2nd Defendant and Messrs Sheik Shah lawyers who were involved in the preparation of the Transfer, arranging execution and attending to settlement.
    

4. CONCLUSION
   

31. The Plaintiff has purchased the property and the Registrar of Titles office has registered the transfer. In the Case; Breskver – v- Wall (1971) HCA 70; (1971) 126 CLR 376 which said case was referred in the case; Savusavu Airports Heights Ltd – v- Fong (Supra) it was held that "under the Torrens system; Title rests upon the act of the Registrar of Titles in registering instrument rather than upon the acts of the party executing the instrument." The conduct of the Defendants does not show any indication of fraud and their conduct indicate collusion between the Defendants to remain in possession of the property in detriment to the Plaintiff's legal right to possession.
    

5. FINAL ORDERS
   

1. The summons for eviction of the Defendants is allowed.
2. The Plaintiff (applicant) is granted possession of the property situated at lot 8 on DP 7622 Housing Authority Sub-Lease N 439932 immediately.

100. The Plaintiff is also granted a cost of $500 assessed summarily for this application.
     

Dated at Suva this 23rd day of March, 2012.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva