Dave v Navua Properties Ltd [2005] FJHC 378; HBC 296J.2005S (2 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 296J OF 2005S

BETWEEN:

LAISIASA DAVE & KOROI MISINARE
PLAINTIFFS

AND:

NAVUA PROPERTIES LIMITED
DEFENDANT

Counsel for the Plaintiffs: J. Savou: Jiaoji Savou Esq.
Counsel for the Defendant: No Appearance

Date of Judgment: 2 December, 2005
Time of Judgment: 9.30 a.m.

JUDGMENT

The Defendant is the registered proprietor of all the piece of land comprised in C.T. 14889, situate in the district of Serua and containing an area of 4 acres, 2 roods and 05 perches. An associate company of the Defendant, owned another property in the same area, the said land comprised in C.T. 17079. The Plaintiffs are representatives and trustees of the members of a village known as Vunibuabua village, which occupy part of C.T. 17079.

In 1978, the Defendant decided to develop the property in C.T. 17079 but was impeded by the occupation in part, of Vunibuabua village. On 11 December 1978, the Defendant entered into an Agreement with the then Minister for Labour, the late Ratu David Toganivalu, acting as trustee and representative of the village members. The Agreement specifically stipulated that in consideration of the Members of the Vunibuabua village vacating the site of their village on C.T. 17079, the Defendants agreed to transfer C.T. 14889 to them.

The village moved following the Agreement in 1978 and relocated to the property comprised in C.T. 14889. The new village was re-named Lepanoni. However the subsequent transfer of C.T. 14889 to the members of the village was not followed through owing to the death of the village trustee and presumably, the villagers being ignorant of what to do next, although they did seek the assistance of Mr Kelemedi Bulewa in the intervening period. Eventually, the village members entered into a Deed of Trust dated 2 June, 2005 under which the Plaintiffs were appointed to succeed the deceased trustee.

The Plaintiffs bring this action as joint trustees appointed by the Court pursuant to the Trust Deed of 2 June, 2005. The first-named Plaintiff has been Chairman of the Village Committee since 1978. In their Originating Summon, the Plaintiffs seek the following reliefs:

“ (a) The Defendant, Navua Properties Limited, transfer Certificate of Title 14889 to the Plaintiffs, Laisiasa Dave and Koroi Misinare, being trustees of the Lepanoni Village Committee, pursuant to the Agreement dated 11^th December, 1978 between the Defendant and the Trustee of Lepanoni Village Committee.

(b) That the Plaintiffs, Laisiasa Dave and Koroi Misinare being Trustees for the Lapanoni Village Committee be declared registered proprietors of all that land comprised in Certificate of Title 14889 in preference to the Defendant, Navua properties Limited.

(c) Pursuant to section 103 of the Land Transfer Act Cap. 131, the Registrar of Titles enter a memorial of the Order of the Court preferring the Plaintiffs as registered proprietors of all the land comprised in Certificate of Title 14889.”

In essence, what the Plaintiffs are seeking are certain declarations and orders of the Court on their rights arising from the said Agreement.

The Defendant failed to make any appearance. Even although its registered office at the time of the making of the Agreement was overseas, the Agreement of 1978 was executed in Fiji by its officer or agent with the seal of the Company affixed to it. The service of the documents including alternative service, had been effected pursuant to the provisions of the Rules, the Land Transfer Act as well as the Property Law Act. The Court is satisfied that service had been effected, and that the Defendant was given adequate opportunity to present its case.

The Plaintiffs are asking for specific performance by the Defendant. They had moved from C.T. 17079 and had fulfilled the Agreement’s requirement. It is for the Defendant, to transfer the ownership of C.T. 14889 to them as “beneficiaries” of the Agreement. This they have failed to do.

I entertain no doubt that the Plaintiffs have both legal and equitable rights to the ownership of C.T. 14889 arising out of the Agreement. The Defendant was legally obliged to transfer the property as soon as the village of Vunibuabua moved and relocated, vacating part of C.T. 17079. That the Defendant had not performed its part in the Agreement, may not totally be attributable to it alone. It was for the beneficiaries also to follow up on the terms of the Agreement as soon as they had fulfilled and complied with its terms. This they neglected to do for one reason or another, but their rights emanating from the Agreement remained unaffected.

In the end, the Court makes the following findings:

(1) That pursuant to an Agreement dated 11 December, 1978, the Defendant was required to transfer the ownership of C.T. 14889 to the Plaintiffs, as trustees of the beneficiaries of the village of Vunibuabua, now known as Lepanoni.

(2) That the Defendant, by not transferring the ownership of C.T. 14889 to the Plaintiffs after the latter had vacated C.T. 17079, had breached the terms of the Agreement.

The result are the following Orders:

(1) Order that the ownership of C.T. 14889 be transferred to the Plaintiffs as trustees.

(2) Order the Registrar of Titles enter a memorial of the Court preferring the Plaintiffs in their capacity as trustees of the Lepanoni Village, to be the registered proprietors of Certificate of Title No. 14889.

No order as to costs.

F. Jitoko
JUDGE

At Suva
2 December, 2005