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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CIVIL APPEAL NO. ABU 0005 of 2012
(High Court Civil Action No. HBC 320 of2007)
BETWEEN:
CHANDAR LOK
Appellant
AND:
1. BAL RAM
2. THE REGISTRAR OF TITLES
3. THE ATTORNEY GENERAL OF FIJI
Respondents
Coram : Calanchini AP
Chandra JA
Kotigalage JA
Counsel : Mr V Mishra for the Appellant
Mr A Singh and Ms P Mataika for the 1st Respondent
Mr R Green and Mr J Pickering for the 2nd and 3rd Respondents
Date of Hearing : 9 November 2012
Date of Judgment : 30 November 2012
JUDGMENT
Calanchini AP
Chandra JA
"(c) that the 1st Defendant could not have transferred Native Lease No. 44656 by virtue of any alleged Power of Attorney that he may have been granted as being against the spirit of the grant;
(d) that the 2nd Defendant was should not have and was negligent in consenting to the Orders referred to in paragraph 18 above;
(f) that the actions of the 1st Defendant were improper and/or unlawful and and/or fraudulent."
and concluded that the 2nd Respondent was negligent in registering the transfer without the consent of the Native Land Trust Board and that such registration was invalid and unlawful.
8. The Appellant in his notice of Appeal set out the following grounds of appeal:
"1. The learned Judge erred in law and in fact in holding that the 1st Defendant (should be 1st Respondent/Plaintiff) had locus standi in bringing this action even though the Plaintiff lacked any interest in allowing the action to stand and making orders and/or declarations thereon when the basis of the First Respondent's action against the Appellant was a Deed of September 1982 which was unenforceable and/or void and/or uncertain.
2. The learned Judge fell into error when he failed to take into account the following:-
(a) The First Respondent had no cause of action against the Appellant and that he only had a cause of action against the Estate of Ballaiya.
(b) He had taken an action against the late Ballaiya both in the Lautoka High Court being Civil Action No.188 of 1994 and the Agricultural Tribunal in respect of his alleged entitlement during the life time of Ballaiya which were both struck out and/or dismissed.
(c) There was res judicata and/or estoppels against the First Respondent no appeal against both and it constitutes to estoppels.
3. The learned Judge erred in law and/or in fact in holding that the transfer of Lease No.360347 to the Appellant and its registration is invalid and failed to apply the principle of indefeasibility of title.
4. The learned Judge erred in law and/or in fact in holding that:-
(a) that the transfer or lease by the Appellant using his Power of Attorney was not bona-fide when there was a lack of evidence amounting to fraud as required under the Land Transfer Act.
(b) That the Appellant in effect had to produce evidence as to what compelled the late Ballaiya to appoint the Appellant as his Attorney to act in respect of his properties in Fiji and in effect reversed the onus of proof of fraud on the First Respondent when the late Ballaiya had never cancelled the Attorney or objected to the transfer and had not objected during the five years he survived after the transfer.
(c) That the complaint of fraud had been proved and defeated the plea of time bar under the Limitation Act.
(d) That the onus of proof of fraud had been met by the First Respondent and failed to properly assess the evidence adduced by the First Respondent.
5. The learned Judge erred in law and/or in fact in holding that:-
(a) the doctrine of indefeasibility of title only applied to safeguard the title of a bona-fide purchaser against a predecessor in title and fell into error when considering the principles and issues involved in the present case.
(b) in not upholding the principle that even void (or defective) instrument effectively passes property or interest upon registration.
6. The learned Judge erred in holding that there was n o proper consideration, that the 'fundamentals of a sale' were absent and that the transfer of the lease to the Appellant was legally flawed and of no legal force.
7. The learned Judged erred in law and/or in fact in holding that the payments made by the First Defendant to the late Ballaiya could not have constituted valuable consideration in view of the evidence of the Appellant was corroborated by the evidence of Chandra Wati.
8. The learned Judge erred in law and/or in fact in holding that the use of the Power of Attorney to transfer the subject lease improper when:-
(a) there was no evidence of any complaint by the late Ballaiya against the Appellant and when there was evidence he had survived for five years after the Power of Attorney had been exercised and when there was unchallenged evidence by Chandra Wati who was not cross examined and gave her evidence by way of affidavit pursuant to a court order for affidavit evidence and who was questioned by the Court.
(b) The Power of Attorney was done by another law firm other than the one which handled the Transfer.
9. The learned Judge erred in making the declarations that he did when the First Respondent had not pleaded the lack of consent of I Taukei Land Trust Board against the Appellant."
9. Counsel for the Appellant filed exhaustive written submissions to support the above grounds of appeal and at the hearing made oral submissions in respect of same.
10. The 1st and 2nd Respondents made oral submissions at the hearing. It is to be noted that before the High Court, the 2nd Respondent sought to justify the actions of the Registrar in registering the impugned deed (probably because there were allegations of corruption and improper conduct alleged against the Registrar by the 1st Respondent/Plaintiff) while stating that all transfer dealings after 1st January 1950 were without the consent of the Itaukei Land Trust Board and therefore all such dealings would be invalid and it would mean that the transfer from the Official Receiver to the late Ballaiya to the Appellant is invalid or unlawful (vide Written submissions of the 2nd Respondent filed in the high Court at page 182 in Volume 1 of the Record at paragraph 6.6). At the hearing the 2nd Respondent's submissions were on the basis that there could not have been a lease granted for such a long period as would appear to have been given to the late Ballaiya and that in any event no consent had been given by the Itaukei Land Trust Board to any of the transfers after 1950 in respect of the said native land.
11. In order to deal with the specific arguments of the parties it is necessary to consider the background relating to the subject matter, the particular native land particularly in relation to the conduct of the Appellant and the 1st Respondent (who are sons of Ballaiya) up to the time that the action had been instituted. Although the 2nd Respondent has posed questions relating to transfers relating to the land since 1950 the documents in the record show that Ballaiya had been granted a lease in 1978, No.44656 and that would be a convenient starting point for the purposes of the present appeal.
12. Ballaiya who for the purposes of the present appeal would be considered as the original Lessee had eight children, sons and daughters and had according to the 1st Respondent drawn up a Family Deed of Settlement in September 1982 (without specifying a particular date) by which he had sought to effect a settlement regarding the said native land among five of his children which included the 1st Respondent and the Appellant. The Appellant denied the existence of this document and stated that although his name was there, he had not signed it and that his signature had been forged. The sub-divisioning of the said land was to be subject to the consent of the Native Land Trust Board which consent had never been obtained.
13. The 1st Respondent had lodged a Caveat (No.319371) with the Registrar of Titles against his father Ballaiya on 14th April 1992 against any future dealings and the same had been registered at the Office of the Registrar of Titles on the Native Lease No.44656 on 30 April 1992.The basis on which the '1st Respondent had lodged the Caveat was his reliance on the Family Deed of Settlement under which he was to be entitled to a portion of the native land.
14. Ballaiya had filed an application for removal of the 1st Respondent's caveat on 22nd April 1994 and the 2nd Respondent by notice dated 11th May 1994 had given notice of the application of Ballaiya for removal of the caveat of the 1st Respondent. The 1st Respondent was also informed by such notice that the caveat would be removed after twenty one days from the date of the receipt of the notice.
15. The 1st Respondent claimed that he had received notice of the application for removal of his caveat only on 29 June 1994 and he had got an order for extension of the caveat on 21 July 1994 in pursuance of his application dated 15 July 1994 in High Court Lautoka Case No.188/94 citing Ballaiya as the Defendant. However this action had been struck out on 4 August 2006 as the 1st Respondent had not appeared nor was represented when the case had been called.
16. The 1st Respondent had also filed action against his father Ballaiya before the Agricultural Tribunal on 7 July 1994 again on the basis of his entitlements under the Family settlement Deed. This case too had been struck out on 20 January 1998 on which date the 1st Respondent had not appeared nor was represented when the case had been called.
17. While the above actions were taken by the 1st Respondent, Ballaiya and the Appellant had also taken certain steps regarding themselves and the said native land. Ballaiya had executed a Power of Attorney No.16019 dated 16 June 1988 appointing the Appellant as his Attorney for the purposes set out therein which is in the main to act as his agent in general terms.
18. Ballaiya had also executed a Last Will dated 13th May 1992 naming the Appellant and another brother of his, Raj Dewan as Executors and Trustees and named as beneficiaries Raj Dewan, the Appellant and another brother Ram Chandar in equal shares. This Last Will had been executed revoking an earlier will which had been executed on 25 January 1982 wherein the 1st Respondent was also a beneficiary.
19. The Appellant using the Power of Attorney given to him by his father Ballaiya had transferred to himself the entirety of the native land by signing as the transferor in the Transfer of Lease No.360347 on 25 March 1994, which he had stated was done on the advice of his Solicitors even though his father had been present on the occasion of the signing of the transfer deed. This is the Deed that is being impugned by the 1st Respondent where it is also stated that a consideration of $20,000 had been paid. The said Deed in favour of the Appellant had been registered in the Register of Titles on 30 June 1994.
20. Ballaiya died on 3rd April 1999 and the Appellant had applied for Probate and was granted Probate on 13th July 2006 wherein it has been stated that the power was reserved to another Executor and Trustee namely Raj Dewan to apply for the like grant.
21. The Appellant had filed an originating summon dated 19 April 2004 (Case No.HBC106 of 2004) against the Registrar of Titles and the Attorney General and obtained a consent order dated 4th June 2004, to note the transfer number 360347 in respect of lease No.44656 in his favour on the Registrar of Titles copy of Lease Number 44656 and to have a new and/or Provisional Lease No 44656 issued to him.
22. The main grounds urged by the Appellant in this appeal are the questions of locus standi of the 1st Respondent, Res Judicata, the effect of the Limitations Act, indefeasibility of title under the Torrens system, Consent of the Native Land Trust Board.
Locus Standi
"(73) Moreover, the first defendant also challenged the plaintiff's action on the basis of the absence of locus standi. The plaintiff claimed relief on the basis of the DFS, which elated to the native lease insofar as the distribution of proprietorship is concerned among several children including the plaintiff and the first defendant. The DFS suffered from the same infirmities that the first defendant's transfer of lease suffered at the point of time of initiation of these proceedings before court. Even though, the plaintiff ceased to be a beneficiary of the second last will of 19 May 1992, his right to seek court's intervention to ameliorate his concerns over the alleged fraudulent conduct of the first r defendant relating to the Transfer of Lease, having relied on his entitlement in the DFS, could and should not, in my view, be denied in a civil suit such as this. I am, therefore, not inclined to accept the contention of the first defendant in regard to the absence of locus standi for the plaintiff to initiate and maintain these proceedings. I accordingly, reject the challenge based on the absence of locus standi."
24. The argument placed by the Appellant is based on the fact that the 1st Respondent's claim to a share of the estate of his father was on the basis of the Deed of Family Settlement which did not have any legal validity due to the absence of consent from the NLTB regarding sub-divisioning and the fact that he was not a beneficiary under the second last will of the father, Ballaiya.
25. It is to be noted that the Appellant had obtained probate in respect of the last will of the deceased in the year 2006 and that there were three beneficiaries named in the said last will, himself, Ram Chandar and Raj Dewan. Raj Dewan was also named as an Executor and trustee. If the estate of the deceased comprised of the lease of the said native land, there would not have been an estate to be administered and the need to obtain probate would not have arisen if as claimed by the Appellant, the property of Ballaiya had been transferred to him by the transfer Deed executed by the Appellant himself on 25 March 1994, using the Power of Attorney given to him by his father, Ballaiya. There is no explanation of the need to have obtained Probate when there was no estate to administer especially when the Appellant had stated that he had to care for the father. The seeking of Probate by itself would show that the Appellant too was not quite certain of his entitlement under the transfer of the land to himself.
26. The transfer of the lease to himself by the Appellant would also show that the other two beneficiaries named in the Last Will of Ballaiya did not get any share of the Native Lease although the intention of the Testator had been to give equal shares to the three beneficiaries named in the will. It was the submission made on behalf of the Appellant that it was the same Lawyers who had attested the Last Will dated 13th May 1994 who advised the Appellant to use the Power of Attorney to sign the impugned Transfer Deed as Transferor. The said Last Will as stated above had three beneficiaries including the Appellant and it is rather surprising as to whether the Lawyers advised the Appellant to execute the transfer deed in that manner whereby the other two beneficiaries under the said Last Will were deprived of any benefit. Further it was also evident that though the same Lawyers advised him (according to the Appellant) to sign as Transferor although the Transferor (Ballaiya) was present, only an Assistant had attested the said Transfer Deed.
27. The matters referred to above in paragraphs 23 and 24 are matters that this Court can infer from the evidence placed before the High Court, even though the learned High Court Judge did not allude to them. This proposition is supported by the Appellant in his written submissions stating that the Court of Appeal is in as good a position as the Trial Judge in drawing inferences from admitted evidence.
28. In the light of the above proposition, I am of the view that the entirety of the matters relating to the estate of the late Ballaiya had created a situation which justified the 1st Respondent, who was to get a portion of the land according the Deed of Family Settlement and who had been on the land at least for some time on the basis of that settlement instituting action against the Appellant and am in agreement with the conclusion of the trial Judge in rejecting the challenge based on absence of locus standi of the 1st Respondent.
Res Judicata
29. The Appellant has taken up the plea of res judicata against the action of the 1st Respondent and the learned trial Judge considered same and held as follows in his judgment:
"72. In addition, learned counsel relied on the principle of res judicata to challenge the sustainability of the plaintiff's action. It appeared that the challenge was founded on the basis that there was a case by one Hari Narayan against the first defendant under case No.033/2005, which was not interfered by Byrne J by disallowing an application for leave to appeal out of time by Hari Narayan. For a plea of res judicata to succeed, the action must have been between the same parties for the same cause of action. It does not appear to me that those criteria area satisfied in this case for the challenge to be successful. I accordingly reject the plea of res judicata."
30. The Appellant in his submissions did not make submissions regarding the case cited by the learned trial Judge which involved Hari Narayan presumably because that would not attract the plea of res judicata. But Counsel relied on the other two cases that had been instituted by the 1st Respondent against Ballaiya, namely Case No.188/94 regarding the application for the extension of the caveat filed by him and the application to the Agricultural Tribunal against Ballaiya. As stated in paragraphs 14 and 15 above, both cases were struck out as the 1st Respondent had not appeared nor was represented in those cases. As would appear from the documents in the record in the two cases, there had been no adjudication on the merits in both cases and therefore the two cases afford little or no value at all regarding the plea of res judicata. The authorities cited by the Appellant in the written submissions supporting his argument are of no application as these two cases have not been adjudicated upon on the merits of the cases.
Limitations Act Chapter 35
31. It was argued on behalf of the Appellant that the action instituted by the 1st Respondent was barred by the provisions of the Limitations Act. The learned trial Judge arrived at the following conclusion in respect of same:
"71. Mr. Mishra contended on behalf of the first defendant that the plaintiff's action is time barred under the Limitation Act. I am of the view that the plaintiff's action cannot be legally limited by time in view of the complaint of fraud alleged in the statement of claim and proved at the trial. The plaintiff, in my view, is entitled to invoke the protection under section 15 of the Act to sustain the suit against both defendants against limitation."
32. Section 15 of the Limitations Act provides as follows:-
"Where, in the case of any action for which a period of limitation is prescribed by this Act, either-
(a) The action is based upon the fraud of the defendant or his agent or of any person through whom he claim or his agent; or
(b) The right of action is concealed by the fraud of any such person; or
(c) The action is for relief from the consequences of a mistake,
The period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it."
33. The 1st Respondent alleged fraud on the part of the Appellant in respect of the transfer of the lease to himself using the power of Attorney given to him by his father and stated that he had abused the power granted to him. Clearly therefore, the provisions in the above Section 15 would apply to the action instituted by the 1st Respondent and therefore I am of the view that the learned trial Judge had arrived at a correct finding regarding same.
Allegation of fraud on the part of the Appellant
34. The 1st Respondent alleged fraud on the part of the Appellant in executing the transfer in his name on the alleged authority of the Power of Attorney. The Appellant has admitted that he has signed as the transferor in the transfer of the lease to himself so that he became the Transferee as well. He also admitted that his father Ballaiya had been present when he signed the said transfer and that he did so, on the advice of his Solicitor.
35. In the said transfer it has been stated that he had paid $20,000 as consideration for the said transfer to his father. But he had admitted that by that date he had not paid the consideration in full and claimed that the monies that he would have paid his father from time to time would have exceeded that amount. He however, had no receipts to show such payment. The Appellant also relied on the evidence of Chandra Wati whose evidence as the learned trial Judge stated in his judgment was designed only to mechanically match the version of the Appellant. Although it was submitted on behalf of the Appellant that Chandra Wati was not even cross examined, the learned Judge had assessed the value of her evidence in an appropriate manner as he was able to observe her demeanour when she gave evidence before him. Therefore the attempt to establish the payment of consideration for the impugned transfer has been a failure.
36. The allegation of the 1st Respondent was that the Appellant had abused his powers and acted against the spirit of the Power of Attorney which allegedly constituted improper and fraudulent conduct. The learned trial Judge considered the law relating to Powers of Attorney as set out in Halsbury's Laws of England and other Texts and arrived at the conclusion that there was no evidence regarding any acts performed by the first defendant as the attorney or the agent on behalf of the late Ballaiya for almost six years after its execution except for the Transfer of Lease in his name on 25 March 1994. The learned Judge went on to state that the only evidence of any act performed by the appellant on the authority of the Power of Attorney was to extinguish the very property that he was appointed to look after for and on behalf of Ballaiya by transferring it in his name.
37. The learned trial Judge in relation to the said conduct of the Appellant concluded as follows:
"61. As observed above, general words under the Power of Attorney need be construed as having reference to managing the donor's property; and, transfer of the property is neither incidental nor necessary. There are, admittedly, no special powers by which such a transfer could have been sanctioned by the donor, the late Ballaiya. In the circumstances, I conclude that the Power of Attorney was abused; and, the first defendant acted against its spirit when he purported to transfer the property by the Lease of Transfer No.360347 to him."
38. A further fact to be observed is that the deceased Ballaiya had executed his Last Will on 13 May 1992 wherein he named the beneficiaries as the Appellant, Raj Dewan and Ram Chandar in equal shares. The transfer of the lease by the Appellant to himself on 25 March 1994 by which he has transferred the entirety of the property to the disadvantage of the other two beneficiaries, goes against the very intention of the deceased when he executed the Last Will in 1992. This factor, together with the fact that Ballaiya being present at the time of the execution of the transfer and not signing it himself as the transferor and the Appellant signing it himself, that there being no documentary evidence of the fact of payment of the consideration on the transfer, and Ballaiya defending himself in the actions instituted against him by the 1st Respondent even after the purported transfer of the lease, there being no evidence that Ballaiya had given his consent to transfer the lease to the Appellant although the consideration sum of $ 20,000 was stated in the Deed of transfer (which consideration according to the Appellant was made up of gratuitous payments made by him to his father over a period of time) would justify the conclusion arrived at by the learned trial Judge that the Power of Attorney was abused and that the Appellant had acted against its spirit when he transferred the land to himself.
39. Although it was strenuously argued on behalf of the Appellant that there was no proof of fraud, the above circumstances regarding the conduct of the Appellant fall in line with the scope of fraud in relation to land transfer under the Land Transfer Act as considered by Justice Jiten Singh in Deo Narayan and Another v Sigamani and Others (2008) FJHC 204 where the definition assigned to fraud in Assets Co. Ltd v Mere Roihi and Others [1905] UKLawRpAC 11; [1905] A.C. 176 where the Privy Council stated that fraud meant actual fraud, i.e. dishonesty of some sort and not what is called constructive fraud or equitable fraud, was applied.
40. In Waimiha Sawmilling Co. Ltd v Waione Timber Milling Co. Ltd. [1926] A.C. 101 the Privy Council again dealing with the issue of fraud concluded that fraud is suggestive of some act of dishonesty. It was further held that if the designed object of a transfer is to cheat a man of a known existing right that is fraudulent. The conduct and actions of the Appellant in my view as set out above would clearly fall in line with this proposition.
Torrens System, Indefeasibility of Title
41. Counsel for the Appellant relied on the Torrens System regarding the validity of the Appellant's title to the land and stated that he had obtained an indefeasible title. He further argued that such a title can be defeated only where there is fraud and that fraud on the part of the Appellant had not been established.
The learned trial Judge in his judgment in respect of this position before the trial Court concluded as follows:
"74. Learned Counsel for the first defendant had devoted substantially to deal with the doctrine of indefeasibility of title under the Torrens System having relied on a series of case precedents. The doctrine applied, in my view, to safeguard the title of the bona fide purchaser against the predecessor in title, which is the case the case here. In this case, what is challenged is the very Transfer of Lease by the first defendant for the first defendant on the Power of Attorney and its registration. I hold that learned counsel's submissions are inapplicable to the facts of this case and they appear to me as misconceived."
42. As stated above I agree with the conclusion reached by the learned trial Judge that the Appellant had fraudulently executed the impugned transfer deed in his favour and therefore the Torrens System does not come to his rescue to safeguard the registration of the deed even though it has been registered in the Register of Titles. I state further that the concept of indefeasibility of title under the Torrens System should not be allowed in instances where a deed is declared to be void ab initio as in the present case.
43. As a matter of observation, it was the position of the 2nd Respondent before the High Court that the registration of the Transfer Deed in favour of the Appellant was lawfully registered as the Caveat filed by the 1st Respondent was ineffective when the Transfer Deed had been tendered for registration. Although this would be so prima facie, the finding of fraud in relation to the said Deed of transfer would make the registration of same devoid of any legal validity as decided by the learned trial Judge.
Consent of the Native Land Trust Board
44. It was admitted by all parties that the impugned Transfer of the lease from Ballaiya to the Appellant did not have the consent of the Native Land Trust Board (NLTB). Section 12 of the Native Land Trust Act (Cap 134) provides as follows:
"(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as Lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void."
45. This section 12 as stated by the learned trial Judge is an absolute bar against any sale, transfer, sublease, alienation or a dealing of any kind without the consent of NLTB and declare that such dealings are null and void. The Privy Council has in considering the effect of this section concluded that a dealing without the prior consent of the NLTB as required by Section 12 as unlawful in Chalmers v Pardoe [1963] 3 All ER 552. This same principle has been applied in NLTB v Subramani (2010) FJCA 9.
46. The learned trial Judge have considered the effect of the provisions of the Native Land Trust Act concluded as follows in respect of the impugned deed of transfer:
"47. In the result, I hold that the Transfer of Lease No.360347 in the name of the first defendant is an unlawful dealing in the absence of the consent of the NLTB. Such transfer is null and void ab initio within the meaning of Section 12 of the NLT Act. The Registrar of Titles is mandated only to register lawful dealings on native lands under the provisions of the Land Transfer Act; and, he is under a legal duty to satisfy himself in regard to the availability of the consent of the NLTB when he registers dealing on native lands. Failure to do so will result the purported registration null and void ab initio without any legal effect whatsoever."
Kotigalage JA
Chandra JA
Orders of the Court
53. The orders of the Court are:
1. Appeal of the Appellant is dismissed.
2. Judgment dated 9 December 2011 is affirmed.
3. The Appellant to pay $ 4000.00 as costs to the 1st Respondent.
Hon. Justice W D Calanchini
ACTING PRESIDENT
Hon. Justice S Chandra
JUSTICE OF APPEAL
Hon Justice C Kotigalage
JUSTICE OF APPEAL
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