Prasad v Ali [2012] FJHC 1287; HBC87.2012 (17 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 87 of 2012

BETWEEN:

PREM SHUSHIL PRASAD AND SHASHI PRASAD of 16 Kaba Street, Samabula, Suva.
PLAINTIFF

AND:

SHAHEEM HASSAN ALI of 23 Lovoni Road, Tamavua, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. R. P. Singh for the Plaintiff
Defendant in Person

Date of Hearing: 24TH July, 2012
Date of Judgment: 17TH August, 2012

JUDGMENT

A. INTRODUCTION

1. The Plaintiff is the last registered proprietor of the property and the Defendant was a caretaker of the previous owner for six years. The Defendant claims that he did improvements to the building on the property and the previous owner promised to reimburse the said expenses, but there is no evidence of such an undertaking and the Plaintiff's title is indefeasible. There is no right to possession established by the Defendant.
   

B. ANALYSIS

2. The Defendant in his affidavit in opposition admits that his occupation of the property is through the permission of the previous owner of the property as a caretaker of the property. There is no promissory or proprietary estoppel created as there was neither evidence of promise nor mistaken belief established in the affidavit in opposition. There is no evidence of improvements to the property.
   
3. The Defendant state that he had been in occupation of the land in issue for six years and also made improvements to the property to the value $62,000.00 but there is no evidence to substantiate such a very high expenditure by a caretaker. There is no evidence to show that Defendant had that amount of money, leave aside spending on another person's property while being the caretaker.
   
4. The Defendant state that the understanding between the previous owner and him was to reside in the said premises till the said expended money is reimbursed, but there is no documentary proof to that, but in any event he cannot seek the redress against the present owner as there was no understanding between the Plaintiff and the Defendant. The Plaintiff's title to the property is free from the encumbrances except as stated in Section 40 of the Land Transfer Act.
   
5. The Defendant state that Plaintiff did not inquire from him before he purchase the property from the previous owner. The Defendant admits that he was the caretaker of the premises for the previous owner and he also admits the transfer of the property to the Plaintiff.
   
6. In Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) Justice Gates (as his lordship then was) held in an application for eviction in terms of Section 169 of the Land Transfer Act and stated
   

'[13] In Fiji under the Torrens system of land registration, the register is everything: Subramani & Ano v Dharam Sheela& 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Registrar of Titles under the Land Transfer Act [see sections 39, 40, 41, and 42]: Fels v Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

"It is to be noticed that each of these sections excepts the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor or his agent: Assets Co Ltd v Mere Roihi'

There is no evidence of fraud or any proprietary or promissory estoppel and the Defendant has not shown any right to possess the land in question.

C. CONCLUSION

7. The Plaintiff has established its rights to the land in issue and Defendant also admit that fact which is evidenced from the certificate of title. Though the Defendant has lodged a caveat after the Plaintiff obtained the title, it was subsequently removed. The Defendant has not even tried to establish his rights when the due notice of the removal of the caveat was given to him. The said caveat was lodged after the Plaintiff has obtained the title, but even that has been removed. The Defendant has not established a right to possession of the land described in the originating summons and I grant immediate possession to the Plaintiff. Each party should bear their own costs.
   

D. FINAL ORDERS

1. The Plaintiff is granted immediate possession of the premises described in the summons.
   
2. No cost
   

Dated at Suva this 17th day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva