Singh v Bacau [2011] FJHC 679; HBC175.2011 (31 October 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 175 of 2011

BETWEEN:

AJIT SINGH f/n Shiu Narayan Singh of Navua, Businessperson,
PLAINTIFF

AND:

JOJI BACAU of Tokotoko, Navua.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Samad for the Plaintiff
Mr. Vosarogo for the Defendant

Date of Hearing: 16th September, 2011
Date of Ruling: 31st October, 2011

RULING

1. INTRODUCTION
   

1. This is a summons filed by the Plaintiff to evict the Defendant in terms of the Section 169 of Land Transfer Act. The Plaintiff has obtained the transfer from one Kissun Chand on 19th June, 2008. Said Kissun Chand had filed a similar action for eviction, which was dismissed both in High Court as well as in Fiji Court of Appeal. In both decisions the court has held that Defendant has established a right to possession, but both decisions were against Kissun Chand and he has transferred the property to the Plaintiff while the High Court proceedings was pending before the court, but there is no allegation of collusion or fraud by the Defendant. So the provisions contained in the Section 38, 39 and 40 of the Land Transfer Act, allows the title to the Plaintiff's title be indefeasible and he could proceed with this action for eviction of the Defendant.
   

2. FACTS
   

2. The Plaintiff has obtained this title from one Kissun Chand on 19th June, 2008. Said Kissun Chand, had instituted an action no HBC 115/08 in terms of Section 169 of the Land Transfer Act against the Defendant on 10th April, 2008, prior to the transfer to the Plaintiff in this action.
   
3. The summons filed by Kissun Chand was dismissed, in both High Court as well as in Court of Appeal, though certain additional orders made by the High Court Judge, were quashed in the court of appeal.
   
4. In the Fiji Court of Appeal Decision ABU 0041/09 [High Court Action: HBC 115 of 2008S] it was held at page6 as follows:-
   

'Thus the question arises whether the respondent had shown cause to be on the appellant's land. Clearly he had. This is by way of an estopple.

An estoppel is a remedy which can operate both at law and in equity to prevent injustice. As Dixon J observed in Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 at P. 547 the purpose of estopple was to prevent an unjust departure by one person from an assumption adopted by another as basis of some act or omission which, unless the assumption be fulfilled would cause harm to the other party's rights. In Gurdt v Great Boulder Pty Goldmines Ltd [1937] HCA 58; (1937) 59 CLR 641 at pp 674-5 Dixon J explained the meaning of estoppel in the following terms:

This means that the real determent or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to the party who altered his situation upon the faint of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a determent. His action or inaction must be such that, if the assumption upon which he proceeded as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act of failure to act as a source of prejudice.

It seems to us that the respondent has a good argument to show that the appellant is estopped from denying possession to him because of the detriments he has suffered in looking after the appellant's property and his father during the appellant's absence in Australia."

5. So, the Fiji Court of Appeal, held that the principle of estoppel would has established a cause for the Defendant to be in possession of the land but clearly this right will not be imputed to any future transferees unless there is collusion or fraud in the light of the provisions contained in the Section 40 of the Land Transfer Act.
   
6. The Defendant in his affidavit in opposition has not even alleged 'fraud' and or 'collusion' in this case and without any such averment to that effect the title that was transferred to the Plaintiff will be indefeasible as contained in Section 38, 39 and 40 of the Land Transfer Act. The said sections are quoted below
   

"Registered instrument to be conclusive evidence of title

38. No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title.

Estate of registered proprietor paramount, and his title guaranteed

39.-(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall, except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register, constituted by the instrument of title thereto, but absolutely free from all other encumbrances whatsoever except-

(a) the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and

(b) so far as regards any portion of land that may by wrong description or parcels or of boundaries be erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and

(c) any reservations, exceptions, conditions and powers contained in the original grant.

(2) Subject to the provisions of Part XIII, no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act.

Purchaser not affected by notice

40. 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, onto 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 is added)

7. So, it is clear that the Court of Appeal decision which dealt with the issue of estoppel between the Defendant and the previous owner, cannot by itself create a right to possession against the Plaintiff who obtained an indefeasible title. It is also clear that in terms of the Section 40 even if there was knowledge of any unregistered interest cannot be imputed as fraud against the Plaintiff. Since there is no allegation of fraud or collusion the Plaintiff's title is indefeasible and the Defendant has not shown a right to remain in the property.
   
8. In the affidavit in opposition the Defendant has not even alleged any fraud or collusion, on the part of the Plaintiff in this action, in order to file proceedings after the previous owner has failed to evict the Defendant in terms of Section 169 of the Land Transfer Act. Clearly the Defendant has failed to take precaution by filing a caveat against the title to warn any prospective buyer of its interest and the Defendant has not claimed any right to remain in the property against the plaintiff. The decision of the court of appeal which was based on estoppel cannot be imputed to the present owner.
   
9. The Court of Appeal further held as follows, [At page 7]
   

'Further, the respondent may be able to establish a proprietary estoppel for the transfer of a piece of appellant's land. Further evidence will have to be adduced in order to enable the court to make proper orders.'(emphasis is added)

10. The Defendant has not adduced any evidence in the affidavit in opposition and has relied only on the previous decisions and annexed those decisions to this affidavit in opposition. So, the Defendant's argument based mainly on those decisions and no factual matters were alleged in the affidavit in opposition to this summons for eviction, which falls short of establishing a right to possession. The Court of Appeal has held, that further evidence was needed, but no such evidence was forthcoming in this action and clearly the decisions against the previous owner cannot be applied to the Plaintiff.
    
11. Clearly, the Plaintiff is not bound by the said decisions and Section 172 of the Land Transfer Act clearly indicate that dismissal of an action in terms of the said provision is not a bar to subsequent action fro eviction. So, the dismissal of eviction of the Defendant, for the summons filed by previous owner is not an absolute bar to evict Defendant from any future proprietors. Once the ownership is established the burden is shifted to the Defendant to prove a right to remain in the property.
    
12. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
    

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced."

(emphasis is added)

13. So, the burden of proving a right to possession on affidavit evidence is on the Defendant and he has failed to do so. The Defendant relies on the estoppel which operated against the previous owner.
    

100. CONCLUSION
     

14. The Plaintiff has shown that he has a title to the premises and the Defendant has not even alleged any fraud or collusion against the Plaintiff. In the absence of such allegation the Plaintiff's title is indefeasible and Defendant has not claimed right to remain on the property. The summons for eviction of the Defendant should be granted, but considering the circumstances of this case I have not granted any cost.
    

4. FINAL ORDER
   

15. The application to evict the Defendant from premises described in the title No 37782 annexed to the summons dated 14th July, 2011 is granted.
    
16. No cost.
    

Dated at Suva this 31st day of October, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva