Pal v Jeet [2011] FJHC 506; HBC136.2011 (7 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 136 of 2011

IN THE MATTER of the Land Transfer Act, Section 169

BETWEEN:

HARI PAL (f/n Shiu Pal) of 600 Mary Todd Lane, Modesto, California, Businessman as the Administrator of the Estate of Bodh Mati.
PLAINTIFF

AND:

VISHNU JEET (f/n unknown) of Lot 14 Ambler Place, Samabula, Suva, Occupation, Unknown.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Mr. Shelvin Singh of PARSHOTAM & CO for the Plaintiff
Mr. M. Nand of NANDS LAW for the Defendant

Date of Hearing: 28th July, 2011
Date of Ruling: 7th September, 2011

RULING

1. INTRODUCTION
   

1. This is an application for eviction of the Defendant in terms of Section169 of the Land Transfer Act. The Defendant raises a preliminary point of locus standi of the Plaintiff in terms of the provisions contatined in the Section 169 of Land Transfer Act. The Plaintiff has instituted this action as the administrator of the estate of late Bodhi Mati and has not registered the said right in the title to the property. In the title that has been produced no registration of Plaintiff's interest found in the memorial of the title.
   

2. PRELIMINARY POINT OF LAW
   

2. Section 169 of the Land Transfer Act under which this application is made, reads as follows
   

"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) ..........

(c) ........."

3. The word registration is not defined in the Land Transfer Act and the definition is found in the Property Law and it is exclusive definition as against the definitions that are inclusive for example the word 'transfer' is defined in the act in an inclusive manner as opposed to the word 'transfer' which is defined exclusively.
   
4. The interpretation of the words contained in the Property Law is found in Section 2 and according to the said interpretation the word registered is defined as follows:
   

"registered" or "duly registered" in the case of land or any estate or interest therein means registered in the manner provided by the Land Transfer Act; and the 'the register' and 'registration' have corresponding meaning. (emphasis is added)

5. The registration of an interest in by "Transmission" is contained in the Part XIV of the Land Transfer Act and Section 93 of the Land Transfer Act
   

93.-(1) Any person claiming to be entitled to any estate or interest in land subject to the provisions of this Act by virtue of any transmission, whether as the result of the death of the registered proprietor of such estate or interest or otherwise, may make application in the prescribed form to the Registrar to be registered as the proprietor of such estate or interest.

(2) Every application made under the provisions of subsection (1) shall be signed by the applicant and attested by a qualified witness and shall accurately define the estate or interest claimed by the applicant, and shall state that he is entitled to the estate or interest in respect of which he is applying to be registered as proprietor; and the statements in such application shall be supported by the production to the Registrar of the original or certified true copies of all documents under which the applicant claims to be entitled to such estate or interest.

(3) If on any application made under the provisions of subsection (1), and upon the evidence adduced in support thereof, the Registrar is satisfied that the applicant is entitled to the estate or interest claimed, the Registrar shall register the applicant as the proprietor thereof, and the person so registered shall hold such estate or interest subject to all equities affecting the same, but for the purpose of any dealing therewith shall be deemed to be the absolute proprietor thereof.

(4) The title of every personal representative of a deceased proprietor registered under the provisions of this section shall relate back to and take effect from the date of death of the deceased proprietor.

(emphasis is added)

6. It is to be clear that making an application for registration and being considered as the 'registered' are two different positions. The Plaintiff, in its affidavit in reply has produced marked as 'A' a copy of lodgment slip in the Fiji Islands Registrar of Titles. The said lodgment was done on 14th June, 2011 and this action was filed in the court on 17th May, 2011. So, at the time of filing this summons for ejectment, not only did the Plaintiff did not have a registered interest, but also has not even made an attempt to get his interest registered. He has waited for nearly one month after filing of this case to make an application for registration.

7. In terms of Section 93(4) if the proprietor is registered under the provisions contained in this section it relates back to and take effect from the date of death of deceased proprietor.
   
8. Both parties relied on the decision of Fiji Court of Appeal in Gir v Devi [1989] FJCA 6;[1989]35 FLR 229 (27 October 1989) but what has happened in that case was that though there was no evidence of 'registered' interest in the original court, when it was before the Appellate Court, the evidence of 'registered' interest was available and it is clear from the following passage:
   

'Since every appeal to the Court of Appeal is by way of rehearing we can in appropriate circumstance take cognizance of facts which have occurred since the delivery of judgment in the Court below i.e. look at the state of things as at the time of hearing of the appeal and make such order druling or affirmation as the case may require.'

9. It is clear that though both parties relied on the said judgment it is clear that judgment does not support the Plaintiff as there is no evidence of registration before me, to relate back to the effect of registration even prior to the institution of this action. The following passage is self explanatory to determine the ratio of the said case:
   

'In the appeal before us we take cognizance of the fact that the respondent's title has been registered although possibly after the trial. By virtue of the provisions of section 93(4) of the Land Transfer Act the respondent's title is deemed in law to have vested in her from the date of her husband's death. Since she instituted proceedings for possession after obtaining the letter of administration allowing her husband's death and now that the transmission has been registered she was by force of law at all material times the registered proprietor of the native lease in question albeit in her representative capacity. We therefore affirm the trial judge's finding that the respondent as adminstratrix and trustee was the last registered lessee of the land in question and as such she was competent to bring the action for possession.'

10. It is clear that the Court of Appeal judgment was based on the fact that there was evidence before the court in the appeal regarding the registration 'possibly after the trial'. This was possible because the appellate court deviated from the general rule of relying on the evidence that was before the original court and allowed fresh evidence considering that an appeal as a 'rehearing'. This is evident form the following finding:
    

'An appeal to the Cout of Appeal is by way of rehering (Rule 15(1) of the Court of Appeal Rules) and by virture of Rule 22(3) this Court has the power to draw inferences of fact and to give any judgment and make any order which outht to have given or made and to make such further or other order as the case may require. Furthermore, Rule 22(4) empowers this Court to make any order to erasue the determination on the merits of the real question in controversy between the parties, even though the point in issue has not been specified in the notice of appeal.'

11. The above case was again considered in the case of The Trustees of the Estate of Ghuru Prasad V Shakuntla Devi Nair Civil Action No 0241 fo 2006 and Justice Coventry in that judgment held:
    

'[7]Counsel for the plaintiffs cited a number of statutory provisions in favour of his argument including sections 37 and 93(4) of the Land Transfer Act, sections 3, 9, and 18 of the Succession, Probate and Administration Act Cap 60 and their respective interpretation sections . None of these sections go direct to the issue in point. Indeed, section 93(4) of the Land Transfer Act supports the defendant's argument. That subsection states "the title of every personal representative of a deceased proprietor registered under the provisions of this section shall relate back to and take effect from the date of death of the deceased proprietor". The subsection clearly contemplates personal representatives of deceased proprietors being registered; it makes the provision that once they are registered the effect of it relates back to the date of death of the deceased proprietor.'

12. It is clear that under the rules of ratio decidendi the above two cases have decided in no uncertain way that the registration is a must in terms of Seciton 93(4) of the Land Transfer Act, to derive any rights for eviction proceeds in terms of Section 169 of Land Transfer Act. The said rights being related back to the date of death with retrospective effect cannot be considered, when there is no proof of registered interest.
    
13. Section 169 of the Land Transfer Act, gives easy and speedy procedure to recover premises, but at the same time strict compliance is needed and I am guided by the decisions of the court and also obliged to apply the ratio of the Fiji Court of Appeal decision in Gir v Devi [1989] FJCA 6;[1989]35 FLR 229 (27 October 1989).
    
14. Justice Coventry has again applied the said decision in the case of The Trustees of the Estate of Ghuru Prasad V Shakuntla Devi Nair Civil Action No 0241 of 2006 and held that without the proof of registered interest the plaintiff cannot succeed.
    
15. In this case the Plaintiff has submitted some evidence to satisfy that an application was lodged, nearly one month after institution of this action. It should be noted that such evidence was produced in the answering affidavit and no evidence of registered interest was presented to court even on the date of hearing and I do not have any evidence of registered interest of the Plaintiff.
    
16. The definitions and relevant provision contained in Section 93(4) of the Land Transfer Act read with the Section 2 of Property Law where interpretation of the word 'registrered' is defined and application of the ratios of Court of Appeal decision Gir v Devi [1989] FJCA 6;[1989]35 FLR 229 (27 October 1989 and the decision of Justice Coventry in The Trustees of the Estate of Ghuru Prasad V Shakuntla Devi Nair Civil Action No 0241 of 2006 it is clear that Plaintiff has failed to satisfy the preliminary requirement of Section 169 of the Land Transfer Act as he has not produced a registered interest. Producing an evidence of registration cannot be equated to producing an application for registration. These are two distint facts and what the Plaintiff has to statisfy is a registered interest, though when registration is allowed that it will have a retrospective effect in terms of Section 93(4) of the Land Transfer Act. It is pertinent to note that the plaintiff cannot claim the same retrospective effect that even relates back to the time of death, before his right is registered in terms of Section 93(4). The same law that gives retrospective effect also contemplates that it should be registered in terms of the provisions contained in Seciton 93(1), (2) and (3), to qualify for the retrospective effect.
    

100. CONCLUSION
     

17. The preliminary objection of the Defendant is sustained and the plaintiff's summons for the eviction is dismissed and the Defendant is also granted a cost of this application in the sum of $1,000.00, assessed summarily. The cost to be paid within 21 days.
    

The Court Orders as follows:

1. The preliminary objection regarding the locus standi is upheld an the summons for eviction is struck out;
   
2. The Defendant is granted a cost of $1000.00 to be paid within 21 days.
   

Dated at Suva this 7th day of September, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva