Mani v Mani - Rulilng [2012] FJHC 1145; HBC149.2011 (1 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC No. 149 of 2011

BETWEEN:

DONALD MANI
of 9 Kini Street, Suva, Fiji, Businessman.
Plaintiff

AND:

MICHAEL CHANDRA MANI
of 27 Adam Place, Lautoka, occupation unknown to the Plaintiff.
1st Defendant

AND:

SHIRLEY ROSINA MANI
of 27 Adam Place, Lautoka, occupation unknown to the Plaintiff.
2nd Defendant

Before: Master Anare Tuilevuka.
Appearances : Mr. Pillay of Neil Shivam Lawyers for the Plaintiff.
Defendants in Person.
Date of Ruling : 01 June 2012.

RULING

BACKGROUND

[1]. The plaintiff applies under section 169 of the Land Transfer Act (Cap 131) against the defendants to show cause why an order for vacant possession should not be made against them. The property in question is Lot 27 Adams Place, in Drasa Vitogo in Lautoka. The plaintiff is the last registered proprietor of Lot 27. The defendants were his predecessors in title. The plaintiff and the first defendant are brothers. The second defendant is the spouse of the first defendant. Whilst the defendants were yet registered proprietors of Lot 27, they had problems keeping up with their mortgage repayments. The arrears soon mounted and they had difficulty clearing that as well. The Fiji Development Bank which held a mortgage over Lot 27, eventually proceeded to advertise the property on mortgagee sale. Thereafter, the plaintiff became the registered proprietor. As to how exactly the plaintiff came to be the registered proprietor over Lot 27, the parties are in disagreement in their respective accounts.

PLAINTIFF'S VERSION

[2]. According to the plaintiff, he became the registered proprietor by arrangement with FDB to settle the defendants' mortgage debt. The plaintiff says that he had assisted the defendants in meeting their FDB arrears and mortgage repayments on some particular occasions prior to FDB advertising the property for sale. The FDB was aware of his involvement. According to the plaintiff, he had then made arrangements with FDB to purchase the property on the proviso that he raise enough capital to pay all outstanding arrears and all other associated fees. FDB had agreed to this upon which he then applied for and obtained a loan from Bank of Baroda to pay off the mortgage debt with FDB. He then paid FDB $98,602.34 to settle the mortgage debt as well as settle the FNPF charge of $25,375.00. The property was then transferred to him on 11 December 2007. On 13 August 2009, he instructed his solicitors to issue a Demand Notice against the defendants for monies that they were collecting from tenants on the property. And on 17 August 2010, he instructed his solicitors to issue a Notice to Quit against the defendants.

[3]. In paragraphs 13 and 14 of his affidavit, he deposes as follows:

13. ..the Defendants are not tenants and have no legal or equitable rights to remain on the said property any more.

14. ..despite the service of the Notices, the Defendants willfully refuse to repay monies collected on the property and vacate the said property.

DEFENDANTS' VERSION

[4]. According to the defendants, at the time when they were having difficulty with the payments - the plaintiff had approached them and proposed an arrangement. Under this arrangement, the title to Lot 27 was to be transferred to the plaintiff who would then settle the defendants' mortgage debt of $87,647.15 through a refinance loan from the Bank of Baroda. As part of the arrangement, the plaintiff was to pay the defendants $15,000 and also transfer to them his adjoining vacant Lot 25. The plaintiff was also to let the defendants continue in occupation of Lot 27 until such time as he (the plaintiff) was able to transfer Lot 25 and pay the $15,000 to the defendants. The defendants say that they accepted the plaintiff's proposal and signed an agreement with the plaintiff dated 12 October 2006 which reflected the terms of their arrangement. A copy of the said agreement is exhibited in the defendants' affidavit. I will not set out the terms in this ruling. Suffice it to say that I have perused the short and simple agreement and its terms appear to bear out all that the defendants are saying.

[5]. The defendants also depose that before the plaintiff approached them, they had already entered into an agreement with one Umesh Chand for the sale and purchase of Lot 27 in the sum of $147,000-00. They had to renege on this agreement with Umesh Chand when the plaintiff intervened.

ANALYSIS

[6]. As registered proprietor, the plaintiff has a prima facie legal right to immediate possession. The onus therefore is on the defendants to convince this court that they have an arguable case of some right to possession which would preclude the granting of an order for possession in favour of the plaintiff under section 169 (see Morris Hedstrom Limited v Liaquat Ali Action No. 153/87 at page 2). After having read the affidavits filed, and heard the submissions of both the plaintiff and the defendant, I am of the view that the defendants have an arguable case of a right to remain in possession based on the following:

(i) the defendant had exhibited to their affidavit a copy of the sale and purchase agreement purportedly executed by them as vendors and by the plaintiff as purchaser over Lot 27. Prima facie, the terms of this agreement appear to bear out all that they had submitted in court (see paragraphs 4 to 5 above).

(ii) on the said agreement, their right to remain in possession stems from a contractual obligation on the part of the plaintiff to let them continue in occupation until such time as he is able to pay them $15,000 and also transfer to them his title to vacant Lot 25.

(iii) the first defendant and the plaintiff are brothers. When that is considered with the fact that the defendants had to renege on their agreement with Umesh Chand who was willing to pay a price on Lot 27 much higher than the mortgage debt which the plaintiff settled, it appears - from where I sit - that the consideration that the defendants gave in their deal with the plaintiff was the value of their home equity on Lot 27 (i.e. the real property value, or the difference between Lot 27's fair market value and the outstanding mortgage loan balance on the property).

(v) the plaintiff's version of things i.e. that he had acquired Lot 27 through an arrangement that he had entered into with FDB to simply take over the defendant's mortgage is a little too fanciful. There is no evidence before me to suggest that the plaintiff had in fact made an offer to FDB to purchase Lot 27 in response to FDB's mortgagee sale advertisement. And there is no clear evidence before me to suggest that the letter that FDB wrote to Neel Shivam Lawyers dated 03 September 2007 was pursuant to such an offer (if ever there really was one).

CONCLUSION

[7]. For the above reasons, I dismiss the application. I make no order as to costs.

Master Tuilevuka

At Lautoka
01 June 2012