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Standring v Railoa [2015] FJHC 912; HBC94.2015 (20 November 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 94 of 2015

IN THE MATTER of an application under Section 169 of the Land Transfer Act.

BETWEEN:

DENIS STANDRING of 14 Blythfield Place, Taradale, Napier 4112, New Zealand, Businessman and RONALD RITESH SINGH of Namaka, Nadi Fiji Driver as Executors and Trustee in the Estate of Donald William Standing, Landlord.
PLAINTIFFS

AND:

KELERA RAILOA and all occupants of Lot 42, McElwrath Crescent, Mountain View Estate, Martintar, Nadi, Tenant.
DEFENDANTS

Mr. Ashneel Amit Nand for the Plaintiffs
Mr. Eroni Maopa for the Defendants

Date of Hearing: - 01st October 2015
Date of Ruling : - 20th November 2015

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Plaintiff's Originating Summons dated 23rd June 2015, made Pursuant to Section 169 of the "Land Transfer Act", Cap 131, for an Order for Vacant Possession against the Defendants.

(2) The Defendants are summoned to appear before the Court to show cause why they should not give up vacant possession of the Plaintiff's property comprised in Certificate of Title No: 19128, known as "Waqadra" (Part of), being Lot 47 on DP No. 4509 containing an area of 27.4 perches.

(3) The application for eviction is supported by an Affidavit sworn by the Plaintiffs on 07thApril, 2015.

(4) The application for eviction is strongly resisted by the Defendants.

(5) The Defendants filed an Affidavit in Opposition opposing the application for eviction followed by an Affidavit in reply thereto.

(6) The Plaintiffs and the Defendants were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Plaintiffs filed a careful and comprehensive written submission, for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What are the circumstances that give rise to this present application?

(2) To give the whole picture of the action, I can do no better than set out hereunder the main averments/assertions of the pleadings/affidavits.

(3) The Plaintiffs in their Affidavit in Support depose inter alia (so far as relevant);

Para 1. THAT we are the Executors and Trustees of the estate of Donald William Standring by virtue of Probate No. 55825 is attached hereto and marked with letter "A".

2. THAT the deceased Donald William Standring is the registered proprietor of Certificate of Titile No. 19128 known as "Waqadra" (part of) being Lot 47 on DP No. 4509 containing an area of 27.4 perches. A copy of the said C.T. No. 19128 is attached hereto and marked with letter "B" (hereinafter referred to as the said property).

3. THAT the Defendants have been occupying the said building (hereinafter referred to as "the demised premises") as a licensee.

4. THAT we instructed our Solicitors to issue notice of eviction to the defendant and all the occupants on 6th day of January, 2015 and the same was served on the 8th day of January, 2015. Copy of the said Notice is annexed hereto and marked with letters "C".

5. THE said Notice was duly served on the Defendants by our bailiff.

6. THAT the Defendants have not vacated the property as to date and are occupying the said property illegally.

7. THAT the Defendants do not have any defence in this action and the defendants refuse or neglect to vacate despite the notice given to them.

(4) The Defendants for their part in seeking to show cause against the Summons, filed an Affidavit in Opposition, which is substantially as follows; (so far as relevant)

Para 3. As to paragraph 1 of the said affidavit, I admit that the Plaintiffs are the executors and trustees of the estate of Donald William Standring as per Probate No. 55825. However I am disputing the Will executed on 4th July 2012.

4. As to paragraph 2 of the said affidavit, I admit the contents.

5. As to paragraph 3 of the said affidavit, I state that I live on the property.

6. The late Donald Standring and I got married on the 1st December 2010. I annexed herein a copy of Marriage Certificate marked as annexure KR1.

7. As to paragraph 4 and 5 of the said affidavit, I admit receiving eviction notices.

8. As to paragraph 6 of the said affidavit, I deny the contents and state that I am legally staying on the property as I was married to the late Donald Strandring. That since 1980, I was living with Mr. Sandring in de facto relationship until we got married on 1st December 2010.

9. As to paragraph 7 and 8 of the said affidavit, I state that I have a valid defence. The late Donald Standring made his last Will and Testament in 2006 at Messers Hari Ram, Lawyers, Nadi where he gave his property situated at Lot 47 Mountain View to me with other properties/assets and shares to me. I annexed herein a copy of the said Will marked as KR2.

10. However the current WILL as mentioned by the Plaintiffs which was executed in New Zealand in 2012 is suspicious and challengeable.

11. That my late husband used to visit New Zealand every 6 months for medical checkup and returned to Fiji. He was suffering from Asthmatic disease.

12. When he went for medical checkup in 2012, he never returned and I was never informed of the news that he passed away but a friend asked and informed me that my husband died in New Zealand.

13. Also the information given to the Registrar of Death in New Zealand was false where is stated "Relationship Permanently separated from marriage" to spouse/partner Kelera Railoa". I annexed herein a copy of Death Certificate marked as annexure KR3.

14. Further upon examination of signature of the Testator in his Will executed in 2012, it is different from the 2006 WILL which was witnessed in front of Mr. Hari Ram, Solicitor. The content of the 2 Wills are similar but only the names were changed from the Defendant, Kelera Railoa to the Plaintiff as Executor and Trustees of the Estate.

15. That I lived in de facto relationship with the deceased since 1989. We jointly managed the Melanesian Hotel and later we sold the said business in 1995.

16. In 2004, the late Donald Standring and I bought the property at Mountain View Estate in Nadi where we moved in. That we shared the funds to purchase such property from sugar cane proceeds. However I lost all documents during the flood in 2012.

17. I was informed by my Solicitor and verily believed that I have equitable interest to live on the property. The Plaintiffs do not have any legal standing to evict me from the property.

18. During our relationship, I was taking good care of my late husband but I was baffled when I went to take out the probate, I was informed by Mr. Hari Ram that there was a recent Will appointing the Plaintiffs as Executors and Trustees of the Estate,

19. That I instructed my solicitor to institute legal proceedings against the Plaintiff seeking a declaration that the last Will and Testament of Mr. Donald Standring executed on 4th July 2012 is null and void.

(5) The Plaintiffs filed an Affidavit in rebuttal deposing inter alia; (so far as relevant)

Para 4 As to paragraph 3 of the said Affidavit I say as follows;

(a) Donald William Standring late of 19 Coniston Avenue, TeAtatu South, Auckland, New Zealand, Retired person, deceased, testate died on the 25th day of October, 2012 at North Shore Public Hospital Shakepeare Road, Takapuna. Hereinafter referred to "the deceased".

(b) That I have caused an advertisement to be inserted in the Fiji Sun on the 7th day of March, 2014 giving notice to creditors to lodge their claims.

(c) That the Defendant had ample time to place a caveat on the Estate and bring the matter before a Court challenging the last Will & Testament of the said deceased dated 4th day of July, 2012 which the Defendant had failed to do so.

(d) That on the 3rd day of December, 2014 Probate was issued into our names by the High Court Probate Registry in the Estate of the said deceased.

(e) The Defendant only raised an issue with respect to challenging the Last Will and Testament of the said deceased when an Application for eviction was served onto her.

(f) That the Defendant took no step in challenging the Last Will and Testament of the said deceased since an application of Probate was being made by us.

5. As to paragraph 5 of the said affidavit I say that as per the Last Will and Testament of the said deceased the property of which vacant possession is sought has been devised to Jacqueline Jane Singh as such no clause has been made in favor of the Defendant with respect to the said property in which she is required to be given possession.

6. That I admit paragraphs 6 and 7 of the said affidavit.

7. With respect to paragraph 8 of the said affidavit I say as follows;

(a) The Defendant has been staying with the deceased for about 20 years before they got married.

(b) The fact that the deceased died testate and Probate being granted to the Executors & Trustees of the Estate, it is the responsibility of the trustees to fulfill the wishes of the deceased as per his last Will and Testament.

(c) The decease did not bequeathed and or devised anything to the Defendant except as provided under clause 5.2 of his last will and testament in which the Defendant has been granted a motor vehicle registration number EF 415 being a Nissan.

(d) That since the property on which the Defendant is residing at was not devised to her under the last will and testament she is required to give possession of the property.

8. With respect to paragraph 9 and 10 of the said Affidavit I say as follows;

(a) The Defendant has not taken any steps so far to challenge the validity of the last will and testament of the deceased.

(b) The property in question belonged to the deceased who died on the 25th day of October, 2012 by which he had bequeathed all his real and personal property except for the motor vehicle registration number EF 415 to his daughter Jacqueline Jane Singh.

(c) This Will was proved by the Plaintiff in the High Court on 3rd day of December, 2014 without objection from anybody.

(d) The notice given to the Defendant by our solicitors by letter dated 6th January, 2015 is valid and binding as at that date defendant's occupation of the premises had become unauthorized. No rent was being made she was at best a licensee.

(C) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and Judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiffs now seek.

(2) Rather than refer in detail to the various authorities, I propose to set out, with only limited citations, what I take to be the principles of the play.

(3) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.

Section 169 states;

"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) .....;

(c) ...

Section 170 states;

"The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons."

Section 171 states;

"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.

Section 172 states;

"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, mortgage 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:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.
[Emphasis provided]

(4) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively 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 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, mortgagee or lessor or he may make any order and impose any terms he may think fit."

It is for the defendant to 'show cause.'

(5) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) as follows and it is pertinent:

"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."

(6) The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Azmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:

"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.

(D) ANALYSIS

(1) This is an application brought under Section 169 of the Land Transfer Act, [Cap 131].

Under Section 169, certain persons may summon a person in possession of land before a judge in chambers to show cause as to why that person should not be ordered to surrender possession of the land to the Claimant.

For the sake of completeness, Section 169 of the Land Transfer Act is reproduced below;

169. 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.

(2) In all applications under Section 169 of the Land Transfer Act, the Plaintiff/Applicant must first comply with the requirement of the law.

The first requirement of Section 169 of the Land Transfer Act is that the Plaintiff must be the "lastregistered proprietor" or a "lessor with power to re-enter where the lessee or tenant is in arrears" or a "lessor against the lessee or tenant where a legal Notice has been given or the term of the lease has expired."

I ask myself, under which limb of Section 169 is the application being made?

This is the threshold question.

As far as Section 169 (b) and (c) are concerned they apply where there is a landlord and tenant relationship.

Section 169 (b) and (c) do not apply in the case before me since the Defendants are not the Plaintiff's Tenant who are in arrears and/or the term of the lease has expired.

Therefore, in this instant case, the first limb of Section 169 applies.

Under Section 169 (a), the Plaintiffs must be "the last registered proprietors" of the land in question. The Defendants raised a number of objections as to why an order should not be made. One preliminary legal point was raised at the outset.

It is argued for the Defendants that the Plaintiffs in the case before me have no locus standior legal standing to bring this action under Section 169 of the Land Transfer Act.

Therefore, have the Plaintiffs proved that they are the last registered proprietors of the land in question?

This is the pivotal question that awaits the determination by this Court.

The term "proprietor" is defined in the Land Transfer Act as "the registered proprietor of land, or of any estate or interest therein".

The term "registered" is defined in the Interpretation Act, Cap 7, as "registered used with reference to a document or the title to any immovable property means registered under the provisions of any written law for the time being applicable to the registration of such document or title".

The Plaintiffs say that they are the Executors and Trustees of the estate of deceased "Donald William Standring".

The annexure "B" clearly shows that the deceased "Donald William Standring" is the "last registered proprietor" of the land comprised in Certificate of Title No: 19128.

It is worth mentioning that the Plaintiffs do not have a registered interest. In the title that has been produced, no registration of Plaintiffs interest is found in the memorials.

The interpretation of the words contained in the Property Law is found in Section 2 and according to the said interpretation the word registered is defined as follows:

"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and the 'the register' and 'registration' have corresponding meaning.

(Emphasis added)

Section 93(1) of the Land Transfer Act goes directly to the issue in point.

The registration of an interest by "Transmission" is contained in the Part XIV of the Land Transfer Act and Section 93 of the Land Transfer Act. I should quote Section 93 which provides;

93. –(1)"Any person claiming to be entitled to any estate or interest in land subject to the provisions of this Act by virtue of any transmission, whether as the result of the death of the registered proprietor of such estate or interest or otherwise, may make application in the prescribed form to the Registrar to be registered as the proprietor of such estate or interest.

(2) Every application made under the provisions of subsection (1) shall be signed by the applicant and attested by a qualified witness and shall accurately define the estate or interest claimed by the applicant, and shall state that he is entitled to the estate or interest in respect of which he is applying to be registered as proprietor; and the statements in such application shall be supported by the production to the Registrar of the original certified true copies of all documents under which the applicant claims to be entitled to such estate or interest.

(3) If on any application made under the provisions of subsection (1), and upon the evidence adduced in support thereof, the Registrar is satisfied that the applicant is entitled to the estate or interest claimed, the Registrar shall register the applicant as the proprietor thereof, and the person so registered shall hold such estate or interest subject to all equities affecting the same, but for the purpose of any dealing therewith shall be deemed to be the absolute proprietor thereof.

(4) The title of every personal representative of a deceased proprietor registered under the provisions of this section shall relate back to and take effect from the date of death of the deceased proprietor."
(Emphasis added)

The Plaintiffs in this case do nothold a registered title since the transmission has not been registered under Section 93 of the Land Transfer Act.

To be more precise, the Plaintiffs are not competent to bring the action for possession as Executors and Trustees of the Estate of late "Donald William Standring" since the transmission has not been registered in terms of Section 93 of the Land Transfer Act.

Without the proof of registered interest the Plaintiffs cannot succeed.

The provisions of Section 169 of the Land Transfer Act are mandatory and there is no discretion given to the Court as to the persons who might commence proceedings pursuant to that Section.

On the whole of the material disclosed in this case, it seems to me perfectly plain that the Plaintiffs have no legal standing to bring this action. It is not competent for the Plaintiffs to bring this action for vacant possession because the Plaintiffs are not the registered proprietorsof the land in question, a condition precedent for proceedings brought under Section 169 (a) of the Land Transfer Act.

Accordingly, I have no alternate but to dismiss the Originating Summons.

I cannot see any other just way to finish the matter than to follow the law.

In view of the approach I have adopted, I do not consider it necessary for me to express my views on the merits of the Defendants arguments relating to their right to possession. It will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the Defendants arguments relating to their right to possession.

(E) FINAL ORDERS

(1) The preliminary objection regarding the locus standi of the Plaintiffs is upheld.

(2) The Originating Summons is dismissed.

(3) The Plaintiffs are ordered to pay costs of $1000.00 to the Defendants which is to be paid within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
20th November 2015