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Kumar v Sharma [2014] FJHC 591; Appeal 26.2013 (13 August 2014)

IN THE HIGH COURT OF FIJI AT LAUTOKA
[WESTERN DIVISION]
Appeal No. 26 of 2013
ON APPEALfrom decision of Master MH Ajmeer in the High Court of Fiji at Lautoka in Civil Action No. 68 of 2013

BETWEEN:

RAJESH KUMAR of Saweni, Lautoka
APPELLANT

AND:

NAWIN PRASAD SHARMA of VudaLautoka, Unemployed
RESPONDENT

Appearances:Mrs Patel V for Appellant
Mr Singh R for Respondent

Date of Hearing: 28/5/2014

Judgement

1. This appeal is concerned with a decision of the Honourable Master dated 9th October 2013, grating vacant possession of the property comprised in Native Lease No 29367 to the Respondent on an application under Section 169 of the Land Transfer Act.
   
2. The Appellant filed notice and grounds of appeal on 29th October 2013 against the decision on the following grounds of appeal;
   

(i) (a) The Appellant had some right to possession since TLTB had made an officer to him which he has accepted by paying the consideration to lease the said area on which his house is built.

(b) TLTB had requested the Respondent to surrender his lease so that two separate leases could be issued on the said land – one to the Plaintiff and the other to the Defendant.

(c) TLTB is another stakeholder in this dispute. It is not a party to the action for summary possession and it would be presumptive of this Court to grant vacant possession summarily on the facts as presented without hearing evidence on oath.

(d) This was a matter which should have been instituted by way of a Writ of Summons rather than by way of summary proceedings under section 169 of Land Transfer Act.

(ii) THAT this Honourable Court erred in fact and in law in accepting title to the said land by the Respondent when he had not tendered the duplicate registered Lease or a certified true copy of the said Lease duly certified by the Registrar of Titles to prove that he was the registered proprietor of the said land.

3. At the hearing of this matter counsel for the Respondent tendered written submissions in open court and both counsels made oral submissions as well. The counsel for the appellant filed written submissions in response to the written submission of the respondent after the hearing was concluded and the counsel for the respondent filed submissions in reply.
   

Grounds of Appeal

4. The first ground of Appeal is that the master erred in law and in fact in finding that the appellant had not shown cause why he should not give vacant possession of the land to the Respondent without considering that the appellant had some right of possession since TLTB had made an offer which he has accepted by paying the consideration to lease the said area on which his house is built.
   
5. In considering the said ground of appeal I find that the letter of the TLTB dated 15/4/2013 is a letter issued after the appellant was given one months notice to vacate by the Respondents solicitors. Notice to vacate is dated 12th March 2013. It is evident from this letter that the appellant had slept over his rights for 9 years since he made an application to get a lease and approached the TLTB after he was served with the notice to vacate for the purpose of getting some document to defend an action which will be filed against him.
   
6. Furthermore, I hold that the offer letter of the TLTB and the payment made by the appellant to the TLTB accepting the offer does not confer any legal right for the appellant to stay on the land.
   

The prerogative to grant a lease is with the TLTB and an application to TLTB does not constitute a lease being granted to the appellant. Therefore, no legal right to the land devolves on the appellant till a lease is granted to him.

The cancellation of the lease given to the respondent and granting a lease for the part of the land to the appellant on the said offer letter are matters that would be determined in future and any legal obligation by the offer letter will only bind the appellant and the TLTB.

7. In the case of Morris Headstrom V Liaquat Ali (Action No 153/87) the Supreme Court at P2 sated that " ...................some tangible evidence establishing a right or supporting an arguable case for such right must be adduced..............." by a defendant in Section 169 applications to defend it.
   
8. In considering the evidence placed by the appellant before the master, I find that he has failed to adduce tangible evidence establishing a right or supporting an arguable case for such a right He has only adduced evidence to prove that he has got an offer letter from the TLTB and that he paid a sum of $5272.00 to the TLTB. The offer letter issued by the TLTB subsequent to the appellant receiving the notice to vacate cannot be considered as tangible evidence establishing a right of the appellant.
   
9. The Master has considered the appellants application for renewal of the lease which had not been followed up or insisted by the appellant for 9 years. Due to the facts stated on the above paragraphs I find that the Master has not erred in law and in fact by not considering the offer letter issued by the TLTB to the appellant. Therefore, I hold that the Master is correct in disregarding the offer letter and the payment of money to the TLTB by the appellant at the proceedings before him.
   
10. In ground 1 (c) and (d) of the appeal it is stated that the TLTB is another stake holder in this dispute and it is not a party to the action for summary possession and it would be presumptive of this court to grant vacant passion summarily on the facts as presented without hearing evidence on oath and that this matter should have been instituted by way of writ of summons rather then by way of summary proceedings under section 169 of the Land Transfer Act.
    
11. The appellants counsel referring to the affidavits filed by the appellant at the proceedings before the Master submitted to court that there is an allegation of fraud and misrepresentation against the Respondent in obtaining the leases which are triable issues and therefore Master should have dismissed the action as the procedure authorised by section 169 of the Land Transfer Act, was not appropriate.
    
12. In Dharshan Singh V Pulan Singh [1987] 33 FLR 63the Fiji Court ofAppeal held

"The dictumof Gould, V P did not mean that a bare allegation of fraud would necessarily amount to a complicated question of fact. To demonstrate the summary S.169 procedure was not appropriate there must be evidence indicating to the Court the need for a more complete investigation. There is assertion of payment and denial thereof. There was no reference to any further evidence that might assist in establishing fraud at a full hearing. The learned trial Judge was correct in accepting that S.169 as appropriate and making the order sought"

13. The Master has dealt with the issue in his Ruling and come to a finding that the allegation of false representation raised by the defendant cannot be accepted. In paragraph 18 of the ruling he has stated as follows: - "In the supplementary affidavit sworn and filed on 17th July 2013 the defendant states that the plaintiff has obtained new Native Lease No 29367 falsely representing that he (defendant) had already passed away (para 7 of supplementary affidavit). He has belatedly taken this false representation only in his supplementary affidavit. He did not make any sort of such allegation in his affidavit in reply. If the plaintiff had told to the TLTB that the defendant had already died, then the TLTB would have requested a copy of the death certificate before the proceeding to renew the lease in favour of the plaintiff. There is no evidence placed before me to show that the plaintiff falsely represented that the defendant had already died in order to get a new lease in favourof the plaintiff. Therefore, the allegation of false representation raised by the defendant cannot be accepted."
    
14. In considering the Ruling of the Master I find that he has dealt with the evidence before him, and come to a finding. The duty to establish that there is a dispute which required further investigation rested with the appellant and he had failed to discharge that duty before the Master.
    
15. In Abdul Hamid V Hardeo Prasad CIVIL ACTION NO HBC 31 OF 2002the High Court held wild any general allegation fraud cannot be considered against a registered proprietor holding a registered lease over a land.
    
16. Therefore, I am of the view that the Master has not fallen into any error in reaching his conclusion that there is no evidence before him to show that the plaintiff falsely represented facts to the TLTB in obtaining the lease. I find that the appellant had only made a wild and general allegation in his supplementary affidavit sworn on 17th July 2013 which he has failed to prove by adducing evidence before the Master. As such there was no need for the Master to make any order to join TLTB as a party to the proceedings.
    
17. The ground 2 of the appeal is that the Court erred in fact and in law in accepting title to the said land by the Respondent when he has not tendered the duplicate registered lease or a certified true copy of the said lease duly certified by the Registrar of titles to prove that he was the registered proprietor of the said land.
    
18. The Appellant counsel has referred to the provisions of section 169 of the Land Transfer Act Cap. 131 and to the decision of Conors J in Ratna WatiSharma V Veer Mati&VijendraDutt Sharma HBC 425 of 2003L in support of her argument.
    
19. The appellant had not opposed that the lease to the land was issued in favour of the Respondent at the proceedings before the Master. The appellant has conceded that the lease for the land was issued to the respondent by his supplementary affidavit sworn on 17th July 2013. He had not demanded the respondent to submit a certified true copy of the lease at the hearing.
    

In paragraph 17 of the ruling Master has determined that the plaintiff is the last registered proprietor of land on the evidence placed before him as the photo copy of the lease was not challenged at the hearing.

20. Considering the above circumstances I am of the view that the appellant has not raised the objection of a photocopy of the lease being produced at the appropriate time before the Masterand that it is too late for him to raise this issue now at the appeal.
    

Orders

21. I accordingly dismiss grounds of appeal raised on behalf of the appellant in this matter and dismiss the appellants appeal with costs summarily assessed in a sum of $1500.00 payable by the appellant to the Respondent within 21 days of this judgement.
    

Lal.S.Abeygunaratne
Judge

13/08/2014