Guca v Ratuyada [2002] FJHC 241; HBC0043J.2002S (24 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL ACTION NO. HBC0043J OF 2002S

Between:

ADI COROIBULU LEBA GUCA
Plaintiff

And:

TOMASI RATUYADA
Defendant

Counsel: Mr V Maharaj for Plaintiff
Mr A Kato for Defendant

JUDGMENT

This is an application under section 169 Land Transfer Act 1971 (Cap. 131).

The plaintiff is the successful tenderer in a mortgage sale of the property known as, Lot 80 Deposited Plan 3390 and comprised in Lease No. 139856. The mortgage in question, Mortgage No. 185400 was in favour of the Housing Authority the Head-Lessor of the property.

The mortgage sale is the result of persistent default in payment of instalments by the defendant, the mortgagor.

The application by the plaintiff is for an order for vacant possession of the property. It is supported by her affidavit deposing to the facts briefly outlined above. In addition, her affidavit stated that Demand Notices for outstanding payments owed to the Housing Authority were sent by the Authority either by registered mail (28 February 1992 and 3^rd February, 1994) or delivered personally as happened on 8 July 1999. Following defaults in payment demanded, the Housing Authority advertised the same property in a mortgage sale which appeared in the “Fiji Times” on 25^th and 29^th November 2000 respectively.

The plaintiff having become the successful tenderer, had the Lease No. 139856 transferred to her by the Housing Authority on 11^th of October 2001, and was duly registered with the Registrar of Titles on the same date. A new mortgage from the Housing Authority to the plaintiff followed.

In his defence, the defendant first argued that the plaintiff did not have any standing to bring a s.169 proceedings, as the section is very specific in its requirements. Section 169 of the Land Transfer Act states:

“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 arrears for such period as maybe provided in the lease and, in the absence of any provision therein, when the lessee or tenant is in arrears for one month, whether there be or be not sufficient distress found in 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.”

According to the counsel for the defendant, the plaintiff is not the lessee, the Housing Authority being the holder of the leasehold title. At the very best, the plaintiff could only be a sub-lessee, and such interest is not recognised under section 169 of the Act. Neither is it registrable under the Act. However, the counsel for the plaintiff has correctly pointed out that the definition of “lessee” in section 2 of the Act also includes the proprietor of a sub-lease.

Next the defendant argued that the description of the land, the subject of this ejectment summons, was imprecise; in that while the description given in the summons said “Lot 80 DP3390 Ming Ting Place, Raiwaqa and comprised in Lease No. 139856”, the subject property was only a unit in a stratum of flats. The defendant occupied only one of these units. The definition of the property in the summons does not relate specifically to the portion or part of the area which is the subject matter of this action, but to the whole collection of units of flats. The summons was therefore, according to the defendant, defective. In support of this contention, the defendant relied on the Fiji Court of Appeal decision in Shiu Narayan v. Shell Fiji Ltd FCA No. 52 of 1987.

In Shiu Narayan (supra) section 169 proceedings was successfully used by Shell Fiji Ltd (Respondent) to eject one of its tenant (Appellant). However, on appeal, the Fiji Court of Appeal noted that the learned trial judge had ignored the repeated denials by the Appellant that it was the company of which he was the Managing Director not him personally, who was in possession or occupation of the land. This matter according to the Court, should have proceeded, since it raised serious question of facts, to open Court hearing, rather than just affidavit evidence.

It is under these circumstances that the Court of Appeal emphasised the importance of proof of ownership in a s.169 proceedings. The Court said:-

“In fact it is section 169 which calls for evidence of title. Unless the applicant is the registered proprietor or lessor of the land in question an application cannot have recourse to section 169 at all.”

I do not believe the Court of Appeal’s pronouncement in Shiu Narayan is applicable to the present case. In this instance, the ownership per se is not in issue, but rather the description of the property which the defendant has called into question.

The plaintiff’s counsel submitted that the lease document which showed the area as 3.35 perches, had been accepted and duly registered in favour of the plaintiff by the Registrar of Titles, even although it represents units of flats. In any case the learned counsel argued the definition of lease under section 2 of the Act, includes a sub-lease. However, I am not convinced that the counsel’s argument can satisfy the issue of imprecise description as raised by the defendant. It is normal conveyancing practice where only part of a property is the subject of a dealing, to describe the property in question as “part of” or even more specified by defining it as “Flat 1” or “Flat B”, etc. But the most important issue in consideration of the subject is the question of the identity of the property. Certainty of the identity of the land or property remains a crucial element.

In the present case, while the lease document described the property in question as: “CL 4233, Lot 80 on DP No. 3390” with an area of 3.35 perches, the Demand Notices from the Housing Authority to the defendant, and the defendant’s affidavit in reply to the plaintiff’s summons specifically referred to the property as “19 Ming Ting Lane” or Lot 80 on DP 3390. It is clearly obvious that both parties had no difficulties whatsoever in identifying the property in question. In addition, the defendant had the same leasehold property transferred to him from the original lessee on 3 July 1981, and for over 20 years before the plaintiff acquired it through a mortgage sale, the defendant had remained the owner of Lot 80 on DP 3390 or otherwise identified on the ground as 19 Ming Ting Lane.

Under the circumstances and also given the fact that the defendant had not raised the issue in his affidavit but only in his legal arguments afterwards, the submission must fail.

The plaintiff has brought this application under section 169(a) of the Land Transfer Act. Under these provisions the plaintiff claims to be the last registered proprietor, a fact supported by a memorial entered by the Registrar of Titles on Lease 139856, on 11 October 2001. The title, upon registration in indefeasible unless the defendant can prove in accordance with section 172 of the Land Transfer Act, to the satisfaction of the Court that he has a right to remain in possession. From the affidavits filed by both parties it is clear to this Court that unless the defendant can prove that the plaintiff had obtained the title through fraud, the defendant’s right to ownership and possession of the property was extinguished and surrendered when the Housing Authority exercised its right in its mortgage sale of 11 October 2001.

The defendant alleged that he had not been served with Demand Notices from the Housing Authority for payment of appears of rent. There was some allegation of fraud or fraudulent behaviour in the personal services of these Notices. However, evidence produced through the affidavit of one Ajay Singh, Financial Controller of the Housing Authority, showed that of the three Demand Notices in question, two were served via registered mail and the third personally which was acknowledged by the defendant. The apparent discrepancy in the dates of personal service which the defendant referred to, is with regards to the “Notice to Quit” of 8 August 2001, which also informed him of the vesting of the property in the plaintiff. Certainly, it is a matter which should be referred to the police. But even if defendant’s allegation is proven, it is of no consequence to these proceedings. As the plaintiff’s counsel argued, these are grievances which are against the Housing Authority, not the plaintiff. And as pointed out by Pathik J in Beranavere Ratu v. Housing Authority & Or (HBC00558.1993), if the defendant in this case is aggrieved by the action of the Housing Authority, his remedy is in damages against it. The plaintiff is an innocent party in all of these.

Under the circumstances I find that the plaintiff had acquired an indefeasible title. The defendant has failed to show or establish any right under section 172 of the Act, which would enable the Court to intervene and dismiss the plaintiff’s summons.

There finally remains the defendant’s argument that the Housing Authority continued to receive his repayment under mortgage No. 185400 even after the Authority had exercised its right of sale and transferred the property to the plaintiff.

Mr Ajay Singh, the Financial Controller of the Housing Authority, in his affidavit referred to above, admits that the Authority had continued to receive monies on the defendant’s mortgage even after the mortgage sale. This he argues, was treated as mesne profits on “without prejudice basis’, since the defendant continues to occupy the property up to the present day.

“Mesne profit” according to Earl Jowitt’s the Dictionary of English Law, is:

“profits derived from land whilst the possession of it has been improperly withheld: that is, the yearly value of the premises. Mesne profits are rents and profits which a trespasser has, or might have received or made during his occupancy of the premises and which therefore he must pay over to the true owner as compensation for the tort which he has committed”.

Essentially mesne profits therefore are damages paid by a trespasser to the property owner for illegal occupation.

With respect to the position of the Housing Authority, the ownership of the property in question passed to the plaintiff on 11 October 2001 upon the registration of the transfer through mortgage sale. In my view, mesne profits could not possibly be claimed by the Authority after 11 October 2001 since the ownership had passed. In addition, I note that the receipts issued for money paid by the defendant to the Housing Authority still carried the words “Normal Repayment” even after 11 October 2001. This presumably means, certainly to the defendant and the general client of the Authority that such monies was in furtherance of the mortgage repayment.

Be that as it may, the sad fact is that the Housing Authority, is not a party to these proceedings. Whatever, redress the defendant may have in respect of the matters raised above now lies outside and is quite separate from this hearing, although it would have been advisable to enjoin the Housing Authority as a party to the proceedings. He is certainly at liberty to pursue any action that may lie against the Housing Authority.

As for the present application, for reasons I have explained, I find that the defendant has failed to show cause why he should not vacate the property. As a consequence I hereby grant the plaintiff’s application and order that the defendant hand over vacant possession to the plaintiff of the property being Lot 80 DP 3390, and known as 19 Ming Ting Lane and comprised in Lease No. 139856.

I further order the defendant pay the plaintiff’s costs to be taxed if not agreed.

F. Jitoko
JUDGE

At Suva
24th June 2002