Tirikula v Tirikula [2012] FJHC 1034; HBC374.2008 (24 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 374 of 2008

BETWEEN:

CAMARI TIRIKULA
of Lot 23, Nairai Road, Suva
PLAINTIFF

AND:

PENI TIRIKULA
c/- Pacific Theological College,
78 Vuya Road, Suva.
1ST DEFENDANT

ATTORNEY GENERAL OF FIJI,
Suvavou House, Suva
2ND DEFENDANT

REGISTRAR OF TITLES,
Suvavou House, Suva
3RD DEFENDANT

COUNSELS : ESESSIMARM & CO. for the Plaintiff
VAKALOLOMA & ASSOCIATES and
AG'S CHAMBERS for the Defendants

Date of Hearing: 5th March, 2012
Date of Ruling: 24th April, 2012

JUDGMENT

BACKGROUND

1. The deceased Plaintiff filed this case by way of originating summons on 27th October 2008 claiming:
   
   • (a) A declaration that joint tenancy over Lot 23 Deposited Plan No. 2583, Certificate of Title 10975 converted into a tenancy in common;
     
   • (b) An Order that the Plaintiff and First Defendant forthwith executed transfer of Certificate of Title 10975 to themselves as tenants in Common in the shares two thirds to one third;
     
   • (c) An Order that the 3rd Defendant the Registrar of Titles upon production of Transfer of Certificate of Title 10975 to the Plaintiff and First Defendant as Tenants in Common forthwith enter memorial of such transfer of the register.
     
2. In Affidavit in Reply of the 1st Defendant had admitted that the Plaintiff's counsel had written to him requesting the 1st Defendant to convert the ownership to change to tenancy in common and alternatively to have the property sold.
   
3. 1st Defendant had admitted that he referred to agree for the request and he wanted the property to remain in the same status as a family property. Correspondence between the Plaintiff and 1st Defendants annexed to the affidavit of Plaintiff marked CT 4(A), CT 4(B), CT 4(C) and CT 4(D).
   
4. The First Defendant admitted that he had taken a loan from FNPF to settle the loan to Home Finance Company Limited. It is evident that there was a loan settled to Home Finance Company Limited on 22/3/2001 and on the same day (on 22/3/2001) charge was created on FNPF Certificate of Title marked CT1 annexed to the affidavit filed by Plaintiff on 17th October, 2008.
   

FINDINGS AND CONCLUSIONS

5. Plaintiff in her Affidavit dated 27th October 2008, in paragraph 17, 18 and 19 alleged that in the Document (charge created on FNPF) marked CT 5(1) her signature being forged. It is stated the 1st Defendant had created charge over 1/3rd share to FNPF joint tenancy between the Plaintiff and 1st Defendant was severed in equity consequently the 1st Defendant and the Plaintiff became co-owners as tenants in common which I don't agree.
   
6. In careful scrutiny of the Document marked CT 5, annexed to Plaintiff's affidavit, I have observed the following:
   
   • (a) Charge on Fiji National Provident Fund was created by the First Defendant by registering charge only on his undivided 1/3rd share of the property;
     
   • (b) The 1st Defendant had discharged the charge created on Home Finance Company Limited by obtaining the loan from FNPF evidently the same day 2 transactions (discharge from Home Finance and charge on FNPF was created, ie. 22nd March 2001). The action of the 1st Defendant presumably prevented a Mortgage sale by Home Finance Company Limited; by that time admittedly loan was in arrears;
     
   • (c) If at all there was a forgery perpetrated by the Defendant in March 2001, the question arises why the Plaintiff delayed taking action up to writing of the letter dated 15th April 2008 i.e. for 7 years. The present belated action by the Plaintiff shows she was well aware of the transaction and I am satisfied with the documents available for obtaining of the loan from FNPF was to settle the Home Finance Loan and as such 1st Defendant did not have any fraudulent intention. Further, such payment of loan to Home Finance Co. Limited had protected the beneficial interest of the property for both parties;
     
   • (d) It is further noted as I stated earlier the First Defendant had created a charge only on his share of the property to discharge the charge on Home Finance Company Limited on a loan obtained by his father and the Plaintiff failed in her argument of forgery being committed;
     
   • (e) As such I conclude that Plaintiff failed to substantiate her claim of severing in equity on the grounds of obtaining a loan from FNPF to discharge the charge created by Home Finance Company Limited on a loan granted to Plaintiff's husband in 1994.
     
7. Having concluded as above, it is also my task to analyse the basis of the originating summons filed by the Plaintiff to convert the joint tenancy into a tenancy in common under applicable law in Fiji. The following issues I have taken into consideration:
   
   • (a) The Plaintiff and 1st Defendant were joint tenants at the time of filing the present case;
     
   • (b) The cause of action pleaded in the originating summons was 1st Defendant unreasonably refused to consent to severance the joint tenancy in common.
     

LAW

8. I quote below the proviso Section 34(1) of Land Transfer Act (Vol VIII) (Chapter 131), quote:
   

34-(1) Subject to the provisions of any law for the time being in force relating to trusts and to the provisions of Part XV, unless the contrary intention is expressed in the instrument of title, where two or more persons are registered as proprietors of any estate or interest in land subject to the provisions of this Act, they shall be deemed to be entitled to the same as tenants in common, and on the death of any one of such proprietors there shall be no right of survivorship in the other or others and the share of such deceased proprietor shall pass to his personal representative.

(2) Where two or more person are entitled as tenants in common to any estate or interest in land subject to the provisions of this Act, they shall unless the contrary intention is expressed in the instrument of title, be deemed to hold the same in undivided equal shares.

9. In terms of the said section, it is clear enough to apply the survivorship lies with the existing proprietor of the land.
   
10. When the case was pending in Court, the Plaintiff deceased and prior to her death, executors being appointed and the said executors were substituted in place of the Plaintiff by the Learned Master's ruling dated 3rd March 2011.
    
11. At the time of the death of the Plaintiff the property was under joint tenancy and surviving tenant becomes the owner and as such in this case the 1st Defendant becomes the owner.
    
12. To substantiate the portion, I quote Blacks Law Dictionary (6th edition) provides the meaning of Joint Tenancy:
    

"Joint tenancy – an estate fee-simple, fee tail for life, for years or at will, arising by purchase or grant to two or more persons Joint Tenants have one and the same time, and held by once and the same conveyance, commencing at the one and the same time and held by one and the same undivided possession."

The primary incident of joint tenancy is survivorship, by which the entire tenancy on the decease of any joint tenancy remains to the survivors and at length to the last survivor.

13. In the case of D'Ercote V. D" Ercole 407 F SUPP 1377, the court held that:
    

"Joint tenancy is a type of ownership of real or personal property by two or more persons in each owns an undivided interest in the whole and attached to which is the right of survivorship. Single estate in property owned by two or more persons under an instrument."

14. The only difference was that at the time of death, the present case was pending in the Courts for severance of the joint tenancy. As I have concluded in preceding paragraphs, the originating summons did not substantiate the claim for severance.
    
15. In the circumstances there is no necessity to consider the submissions made by the substituted Plaintiff, even if there was any cause of action (which I have concluded in negative) on the death of the Plaintiff under survivorship 1st Defendant became entitled to the ownership as the sole owner, and exercised his right and registered Transfer No. 739718 dated 20th December 2010.
    
16. Accordingly, I make the following Orders:
    
    • (a) Plaintiff's originating summons case is dismissed;
      
    • (b) The substituted Plaintiff has no cause of action to proceed and the application by the substituted Plaintiffs is dismissed;
      
    • (c) Parties should bear their own costs.
      

Delivered on 24th April, 2012.

....................................
[C. Kotigalage]
JUDGE