Narayan v Ramlu [2006] FJCA 16; ABU0069J.2004 (24 March 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

Civil Appeal No. ABU0069.2004
(High Court Civil Action No. HBC0316.2002L)

BETWEEN:

JOSEPH JASWANT NARAYAN
(f/n Joel Narayan Sami)
First Appellant

AND

GOVINDAMMA NARAYAN
(f/n Challappa)
Second Appellant

AND

SHRI RAMLU
(f/n Sukhwa)
Respondent

Coram: Scott, JA
Stein, JA
Ford, JA

Date of Hearing: Wednesday 15 March 2006

Counsel: Ms. T. Draunidalo for the Appellant
Mr. E. Moapa for the Respondent

Date of Judgment: Friday 24 March 2006

JUDGMENT OF THE COURT

THE PARTIES

[1] This second Appellant is the widow of Joel Narayan Sami. Their son Joseph Jaswant Narayan is the first Appellant.

[2] Joel Narayan Sami, who died on 20 January 2000 was the brother of the Plaintiff. Their mother was Chandramma (f/n Venkanna) who died on 5 April 1999.

[3] At the time of her death Chandramma was the owner of a substantial piece of land in Nadi, Native Lease No. 16739, upon which is erected a block of six flats together with five shops. The registered owner of the land is now the Respondent. The Appellants live in one of the flats.

BACKGROUND

[4] On 22 January 1987 Chandramma made a will. She left all her property to her two sons Joel Narayan Sami and the Respondent in equal shares.

[5] On 31 March 1999 Chandramma apparently revoked the 1987 will. She made a second will in which she left her property to the Respondent alone upon condition that he 'provide accommodation to Joel Narayan Sami for his lifetime'. She died six days later.

[6] On 1 June 1996 probate in Chandramma’s estate was granted to the Respondent. No claim was made by the Appellants when the application for probate was advertised and no caveat was lodged.

[7] On 11 November 1999 Joel Narayan Sami commenced proceedings challenging the will dated 31 March 1999 and alternatively seeking provision under the Inheritance (Family Provision) Act (Cap. 61). As required by RHC O 76 r 2 (1) the writ was issued out of the probate registry in Suva. The Respondent filed his Defence on 7 December 1999.

[8] It appears that the Respondent obtained an order for the transfer of the proceedings to the High Court at Lautoka. Apparently this Order has never been sealed. The only further step which has been taken in the proceedings has been to obtain an Order for the substitution of the second Appellant as Plaintiff in the place of Joel Narayan Sami who had died.

SECTION 169 PROCEEDINGS IN THE HIGH COURT

[9] On 1 October 2002 the Respondent commenced summary proceedings for possession of the flat, now solely occupied by his widowed sister in law, the second Appellant, and his nephew, the first Appellant. He filed a rather sparse affidavit in support of his summons which made no mention either of the fact that this was a family dispute or that contested probate proceedings were pending in the High Court.

[10] On 31 October 2002 the Appellants filed an affidavit in answer. After setting out the background they claimed to be beneficially interested in Chandramma’s property and stated that they were unaware that the land had been transferred into the Respondent’s name. The first Appellant deposed that his mother had suffered a stroke and was 'partly paralysed, very sickly, old and infirm'. The Appellants sought dismissal of the Section 169 proceedings, alternatively that they be stayed pending the outcome of the probate action.

[11] On 25 February 2004 the High Court at Lautoka (Connors J) granted the Respondent an order for possession stayed for 3 months. On 25 May 2004 after further evidence was filed the possession order was stayed until further order.

DISCUSSION

[12] It is not in dispute that the Respondent’s application complied with the threshold requirements of Section 169 of the Land Transfer Act (Cap. 131). He was the last registered proprietor of the property occupied by the Appellants and therefore, in the absence of their being able to discharge the onus placed upon them by Section 172 he was prima facie entitled to an order for possession. The central question in this appeal however is whether the pending probate action afforded grounds for adjourning the Section 169 proceedings until the probate action had been disposed of.

[13] The Appellants referred to two authorities Azmat Ali v. Mohammed Jalil 28 FLR 31 and Dharam Lingam Reddy v. Pon Sami 28 FLR 69 where Section 169 proceedings had been adjourned on appeal in support of the proposition that consideration should be given to staying Section 169 proceedings where a Defendant is able to show that he has at least arguable pending proceedings before another tribunal, the outcome of which might affect his entitlement to remain on the property (but see also Vinesh Gir v. Roshni Devi FCA B/V 89/91).

[14] The judge rejected this proposition and held that the only question before him was whether the Appellants presently had a right to possession. In his judgment he wrote:

'there is nothing sufficient in [the] evidence to satisfy me that the Defendant is in fact entitled or has a right to possession of the land. It might that the Defendant in fact has some claim in the future but that is not a matter for consideration of the Court (at) this time'.

With respect, we disagree.

[15] In Azmat Ali (supra 36 – C) the Court of Appeal said:

'Counsel’s argument was that under the section the onus was upon the Appellant to show cause why he refuses to give up possession and he must prove to the satisfaction of the judge a present right to possession. 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. There is accordingly nothing in Section 172 which requires an automatic order for possession unless 'cause' is immediately shown'.

[16] In Dharam Lingam Reddy (supra 80 – H) the Court of Appeal said:

'Counsel for (the) Respondent submitted that all the Appellant had was a mere 'hope' that he might obtain possession and that unless Appellant could immediately show 'cause' an automatic order for possession should follow. We do not agree. Section 172 includes the words 'or he may make any order and impose any terms he may think fit'. These words are of wide application and would enable the judge to make any order which the dictates of justice so required.'

[17] This general approach to the provisions of Section 172 was also more recently followed by this Court in Hardeo Prasad v. Abdul Hamid ([2004] FJCA 10 ABU0059.2003 – FCA B/V 04/46) where it was explained that what the Defendant had to adduce:

'was not final or incontrovertible proof of a right to remain in possession (rather) some tangible evidence establishing a right or supporting an arguable case for such a right’.

[18] Mr. Moapa emphasized that in declining to stay the possession proceedings the judge had been exercising his discretion. In principle, the exercise of discretion will not be interfered with unless the decision in question is plainly wrong (see K.R. Latchan Bros Ltd v. Transport Control Board [1994] FJCA 24 Civ App 12/94 – FCA B/V 94/306). In the absence of obvious error the decision of the High Court on this occasion should be left undisturbed.

[19] Both in Asmat Ali and in Dharam Lingam Reddy the Court of Appeal recognized the correctness of the principle upon which Mr. Moapa relied. At 28 FLR 81 however it pointed out that:

'where the exercise of such discretion may result in substantial injustice to any party then it is clear that the appellate court can and should review the exercise of that discretion: Maxwell v. Keun [1928] 1 KB 645'.

[20] In Lotam v. Douglas Garrick & Anr (Civ App 45/84 – FCA B/V 84/340) (another case involving an application for a stay until the disposal of pending proceedings) the Court stated:

'... before a judge can entertain the possibility that there is a cause for refusing to give up possession because of the pendency of an ALTA application, the occupant must point to some evidence worthy of evaluation by an Agricultural Tribunal. This is the threshold question. To hold otherwise would be to allow sham defences for the purposes of delay. Although the discretion of the Court will usually be exercised to allow a bona fide claim to be examined by the tribunal most conveniently suited to such a task, the Court must still have the power in a given case to decide that there is no material fit to be so assessed.'

In our view the principle is exactly the same whether or not the proceedings are pending in a specialist tribunal or elsewhere in the High Court.

[21] In the present case Chandramma’s property was substantial. It appears that the Appellants had lived in part of that property for many years. Under an earlier will Chandramma had left her property in equal share to her two sons. Under the 1999 will, made just 6 days before she died, the elder son’s share was reduced to what turned out to be just a brief life tenancy of only a very small part of the estate. His dependents received nothing. While the probate action had apparently stalled, the immediate reason for the lack of progress was the Respondent’s failure to seal the Order transferring the action to the Western Division in which the parties reside. The Respondent did not apply to the Court for the action to be struck out for want of prosecution. In all these circumstances we are satisfied that the threshold question must be answered in favour of the Appellants.

[22] In Chandra Wati v. Gurdin (Civ. App. 34/80 – FCA B/V 80/86) this Court allowed an appeal against the refusal to adjourn Section 169 proceedings pending disposal of an application by another Defendant to the Agricultural Tribunal. The Court accepted that the Appellant had been:

'not only vacillating, but also dilatory in prosecuting her former application to the Agricultural Tribunal'.

but ordered the Appellant to proceed with all due diligence with her earlier application and meanwhile stayed the Section 169 proceedings.

[23] In the present case we are satisfied that the dictates of justice require the Appellants to remain in their home pending the disposal of the probate action. In view of the delay which has occurred, the Master of the High Court should bring the matter up before him for directions to enable an early trial to be held.

RESULT

1. Appeal allowed; Order for possession stayed.

2. Appellants to have their costs which are fixed at $1,000.00.

Scott J.A.
Stein J.A.
Ford J.A.

Solicitors

Messrs. Patel & Sharma for the Appellants
Messrs. Babu Singh & Associates for the Respondent.