Matawalu v Tamanisau [2011] FJHC 27; HBC220.2010 (28 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 220 of 2010

IN THE MATTER of Section 169 of the
Land Transfer Act 1971.

BETWEEN :

ETUATE MATAWALU
of 33 Howrah Crescent, Rifle Range, Lautoka.
Plaintiff

AND

NEMANI TAMANISAU AND SAKARAIA BARI
both of Lot 8 on DP 5547, Sutlej Place, Howrah Crescent, Rifle Range, Lautoka.
Defendants

Before : Master Anare Tuilevuka

Counsel : Legal Officer – Housing Authority for the Plaintiff
In Person - Defendants

Date of Ruling : 28th January 2011

RULING

[1]. The plaintiff has filed a Summons under section 169 of the Land Transfer Act (Cap 132) against the defendants to show cause why they should not hand over vacant possession to the plaintiff of Lot 8, DP 5547, Sutlej Place Off Howrah Crescent, Rifle Range, Lautoka and comprised in Lease No. 333108.

[2]. Section 169 of the Act provides as follows: -

"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 arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on 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."

[3]. The plaintiff qualifies under the first limb. A copy of the lease is annexed to his affidavit confirming the same and the original copy was produced in Court for sighting.

[4]. Once it is shown that the plaintiff is the last registered proprietor, the onus then shifts to the defendants to show cause as to why vacant possession should not be given (see section 172 of the Land Transfer Act). In discharging that burden, the defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169.

[5]. This does not mean that he has to prove conclusively a right to remain in possession. On the contrary, it is enough to show some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

[6]. The property in question was once registered to one Sitiveni Karikari and mortgaged to Housing Authority. Sitiveni emigrated to New Zealand in 2002 but his brothers, who are the defendants in this case – have been occupying the premises with their respective families since.
[7]. Sitiveni however defaulted with his payments over the years and this led to Housing Authority advertising the property on mortgagee sale on 19th of August 2008 and 23rd August 2008. The plaintiff responded to the advertisement and in due course, his tender was accepted. On 19th of April 2010, the Housing Authority transferred the property to the plaintiff whose name now appears on the lease title as the last registered proprietor.

[8]. Meanwhile, Sitiveni's brothers (the defendants) are still occupying the house. A Notice to Quit was served on them on the 26th day of August 2010 giving them 7 days notice to vacate the property but to no avail.

[9]. The plaintiff is the last registered proprietor. He has a clear title. There is nothing in the defendants' affidavit that alleges that the plaintiff might have secured his title through his own fraud.

[10]. Hence, as a bona fide purchaser for value who is now the registered proprietor, the plaintiff's title is protected more or less beyond impeachment by virtue of sections 38, 39 and 40 of the Land Transfer Act (Cap 132).

[11]. Section 40 states:

"Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud."

(emphasis mine)

[12]. Hence – the only way that the defendants in this case might convince this Court against an eviction order was if they were to adduce some sort of specific evidence that would suggest that the plaintiff did acquire his title to the property and became the last registered proprietor thereof through his own fraud. A general allegation of fraud is insufficient even to amount to an averment of fraud of which any Court ought to take notice (see Wallington –v- The Directors of the Mutual Society (1879) 5 App Cas at 697).

[13]. In this case, the defendants have not even made any general allegation of fraud against the plaintiff.

[14]. Furthermore, the fraud to be proved by the defendant must be that of the registered proprietor (i.e. the plaintiffs) and not just Housing Authority of Fiji.

[15]. I have traversed the defendants' affidavit in detail. They depose that they were the ones that constructed the dwelling house and made payments on it. They also extended the house. They explained how they were ready, willing and able to settle the amount on the Demand Notice from their FNPF funds and had started talking to the Housing Authority about it. They claim to have a vested interest over the property and despite all this, the Housing Authority went ahead and sold the house to the plaintiff. They say the Housing Authority did not act properly and did not fully explain to them the situation about the accounts at a time. They make suggestions on how Sitiveni's account might be restructured and how "the unfortunate "new buyer" would of course get his money back, and the transaction be declared void".

[16]. To do that would of course offend the principle of indefeasibility espoused under section 40 (see above).

[17]. All the defendants' gripes are against the Housing Authority. They can of course pursue a separate common law claim against the Housing Authority if they are adamant about their cause. If they were to – the remedies open to them would be limited to compensation for damages. Undoing the plaintiff's title would then still be out of the question because of section 40.

[18]. In the final – I grant Order in Terms of the Plaintiff's application and hereby order that the defendants do forthwith vacate the property namely Lot 8, DP 5547, Sutlej Place Off Howrah Crescent, Rifle Range, Lautoka and comprised in Lease No. 333108 by the 28th of February 2011. I also order costs in the sum of $250-00 in favour of the plaintiff to be paid by the 28th of February 2011.

Anare Tuilevuka
Master
At Lautoka
28th January 2011