Naiqama v Brown [1998] FJHC 30; Hbc0437j.97s (6 March 1998)

Fiji Islands - Naiqama v Brown - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 437 of 1997

BETWEEN:

ANA NAIQAMA
Plaintiff

AND:

MERE RANADI BROWN
First Defendant

AND:

MAVIS TADULALA
Second Defendant

T. Seeto for the Plaintiff
S. Matawalu for efendants

JUDGMENT

The Plaintiff is the registered owner of Lot 10 DP 3318 situated at 10 Velau Drive Kinoya Suva. She seeks possession of the premises under the provisions of Section 169 of the Land Transfer Act (Cap 131).

The following affidavits were filed:

(i) Plaintiff, 10 October 1997

(ii) Second Defendant, 4 December 1997

(iii) Plaintiff, 29 January 1998

(iv) Plaintiff, 10 February 1998.

The following facts which are not in dispute are revealed by the evidence:

The premises were previously owned by Eparama Lalabalavu deceased. The first Defendant is the administratrix of his estate by virtue of Letters of Administration issued on 6 September 1991. The beneficiaries of the estate principally include the second Defendant and a number of other occupants of the premises.

On or about 3 September 1993 the first Defendant executed a third party mortgage over the premises in favour of the National Bank of Fiji. Repayments under the mortgage having apparently fallen into arrears the Bank foreclosed. After advertising the property was sold to Anaseini Cobacoba. Precisely how thereafter the property came to be registered in the name of the Plaintiff was not made clear in the papers filed but the fact that the Plaintiff is now the registered owner is not disputed.

The first Defendant no longer occupies the premises and filed no answer to the summons. The second Defendant, upon whom the onus rests to establish a legal right to possession (Section 172) says that given her status as a mere administratrix of the estate and the provisions of the Trustee Act the first Defendant had no right to mortgage the property and the bank should not have advanced her moneys on the security offered. The second Defendant and her fellow beneficiaries have in fact already commenced proceedings against the first Defendant and the bank seeking declarations and damages arising out of alleged breaches of trust (Suva Civil Action HBC 176/97).

In answer Mr. Seeto suggested that the Defendants had not shown that they had any legal right to the premises. There were deficiencies in the evidence presented, no breaches of the Trustee Act had been demonstrated and there had been no application for consolidation of these proceedings with HBC 176/97. Furthermore, it was well established that the existence of other proceedings is no cause on its own to refuse relief under the provisions of Section 169 (see e.g. Dinesh Jamandas v. Honson FCA 22/85).

All these arguments have some force but to my mind the principal difficulty facing the Defendants is Part V of the Land Transfer Act and in particular Section 39 thereof. As I see it, whether or not the 2nd Defendant in this case has a good cause of action against the first Defendant and the Bank in HBC 176/97 the result, in the absence of fraud (which has not been alleged) could not be to undo the sale of the premises which has actually taken place thereby depriving the present Plaintiff of the right to occupy and enjoy the premises of which she is, as a matter of fact, the registered owner.

In the above circumstances I am satisfied that neither Defendant has shown a legal right to remain on the premises and there will be accordingly be judgment in favour of the Plaintiff.

M.D. Scott
Judge

6 March 1998.

Hbc0437j.97s