Raza v Nasinu Land Purchase & Housing Cooperative Society Ltd [2004] FJHC 22; HBC0508D.2003S (21 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 508D OF 2003S

BETWEEN:

MOHAMMED JANIF RAZA
(f/n Mohammed Razak) of Lot 20, Bal Govinda Road, Nadawa,
Nasinu, Welder.
PLAINTIFF

AND:

NASINU LAND PURCHASE & HOUSING
CO-OPERATIVE SOCIETY LTD.
A duly Incorporated Society registered under Co-
Operatives Act 16, which is more correctly described as
NASINU LAND PURCHASE & HOUSING CO-OPERATIVE SOCIETY.
DEFENDANT

Counsel for the Plaintiff: Mrs A.A. Seruvatu: O’Driscoll & Seruvatu
Counsel for the Defendant: R. Singh: Kohli & Singh

Date of Judgment: 21 September, 2004
Time of Judgment: 9.30 a.m.

EX TEMPORE DECISION

On 12 December 2003, the Plaintiff obtained an Order of this Court extending Caveat No. 518737 over land described as Lot 21 on DP 8485 and comprised in C.T. 3324 until further order. On 19 February 2004, the Defendant, a duly incorporated Society registered under the Co-operatives Act (Cap. 16), and the registered proprietor of the said piece of land, applied for the order of 12 December 2003 to be set aside and for the said Caveat to be removed.

Plaintiff’s Argument

In support of his caveat, the Plaintiff stated that he had entered into a verbal agreement with the Defendant for the purchase of the land. A condition precedent was the Plaintiff “to erect a retaining wall and level the property.” This, the Plaintiff claims, he did at the cost of $4,000.00. In his second affidavit of 21 May, 2004, the Plaintiff annexed an Invoice from “Hussain Bulldozing Works” dated 20 March, 2001 confirming the delivery to “Mohd. Janif” of Nadawa, Nasinu, of “100 loads soapstone - $40.00 per load: $4,000.00”.

The Plaintiff claims that the money paid and the ground works already done on the property, amounted to consideration for the verbal agreement for the sale of the land to him by the Defendant. It is to protect his interest and stop the sale of the property to a third party, that the Plaintiff submits, is the reason for the lodging of the caveat and the subsequent extension granted thereto by the Court.

Defendant’s Argument

Chairman of the Society, in his affidavit in support of the Defendant’s application to remove the Caveat, vehemently denies that it had entered into any verbal agreement for sale and purchase of the property. The Plaintiff therefore, according to the Defendant, does not have an interest in the land capable of supporting a caveat.

Court’s Consideration

Obviously for the Plaintiff to be allowed to keep his caveat on the land, he has to satisfy the requirements of section 106 of the Land Transfer Act (Cap. 131). It states:

“106. Any person –

(a) claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or

(b) transferring any land subject to the provisions of this Act, or any estate or interest therein, to any other person to be held in trust,

may at any time lodge with the Registrar a caveat in the prescribed form, forbidding the registration of any person as trustee or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat.” (emphasis added)

The interpretation and application of the section was fully explored and explained by the Fiji Court of Appeal in Cambridge Credit (Fiji) Ltd. v. W. F.E. Ltd. FLR Vol 21, 182, and more recently by this Court in The Fiji National Provident Fund Board v. Vivrass Holdings & Or. CA HBC0325J.2002S. The Fiji Court of Appeal, in determining who can lodge a caveat, cited with approval this statement of Stout CJ in Staples & Co. v. Corby and District Land Registrar [1900] NZGazLawRp 157; (1900) 19 NZLR 517, at 536:

“Before a person can caveat under this section he must be a person who claims to be entitled to the land, or any estate or interest to the land or to be “beneficially interested” in the land, or in any estate or interest in the land, and the person in either event must claim “by virtue of any unregistered agreement” or other “instrument or transmission” (“transmission” meaning acquirement by title or estate consequent on death, will, intestacy, bankruptcy, etc) “or of any trust expressed or implied” or otherwise howsoever.”

In this instance, while the Plaintiff claims the existence of an agreement to sell, he can only point to the improvement he had already made on the land as proof of its existence. There is no unregistered instrument of agreement to point to support the claim. The Defendant totally denies the existence of any such agreement and referred to section 59 of the Indemnity, Guarantee and Bailment Act (Cap 232) which states that no action can be brought upon any contract or sale of land, unless the agreement relied upon is in writing and signed.

The evidence before me does not show or support the existence of any unregistered agreement between the Plaintiff and the Defendant for the sale of the land in question; at any rate, not the sort of an agreement if there is any, that is capable of creating an interest in the land which gives Plaintiff the right to lodge a caveat on the property to protect his interests. It is possible that, under such circumstances, the Plaintiff’s relief may lay elsewhere.

In the result, the Court finds that the Plaintiff does not have a caveatable interest in law and there being no justifiable cause why his caveat should remain, it is hereby ordered that Caveat No. 518737, with immediate effect, be removed from Certificate of Title No. 33324.

Costs of $150.00 is awarded to the Defendant.

F. Jitoko
JUDGE

At Suva
21 September 2004