Nabutulovo v Drauniniu [2012] FJHC 26; Civil Action 179.2011 (20 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 179 of 2011

BETWEEN:

SIMIONE NABUTULOVO and VENINA ROKOTUINASIGANI
both of Vitogo, Drasa, Lautoka
Plaintiff

AND:

LEPANI DRAUNINIU
of Lot 04, DP5902, off Ratu Meli Street, Vitogo, Drasa, Lautoka
Defendant

Before : Master Anare Tuilevuka

Counsel : Messrs Christina Panikar C/A Housing Authority, Lautoka for the Plaintiff
: Messrs Kevueli Tunidau Lawyers for the Defendant

Date of Ruling : 20 January 2012

RULING

[1]. The plaintiffs have filed a summons under section 169 of the Land Transfer Act (Cap 132) against the defendant to show cause why they should not hand over vacant possession to the plaintiff of Lot 4, DP 5902, Drasa Vitogo, Lautoka and comprised in Housing authority Sub-Lease No. 242109.

[2]. Section 169 states as follows:

"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) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired."

[3]. A copy of the lease title is exhibited in the affidavit which the plaintiffs have jointly signed.

[4]. It confirms that they are the last registered proprietor of the property in question.

[5]. Once it is shown that the plaintiff is the last registered proprietor, the onus shifts to the defendant to show cause why vacant possession should not be given (see section 172 of the Land Transfer Act).

[6]. This does not mean that he has to prove conclusively a right to remain in possession. Rather, it is enough to show some tangible evidence establishing a right or at least supporting an arguable case for such a right (See Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at page 2).

[7]. In showing cause, the defendant in this case relies on the affidavit of his brother, Onisivoro Drauniniu sworn on 13 December 2011.

[8]. Drauniniu was the former owner of the property in question. The property was transferred to him on 17 October 1997. That acquisition was financed by a loan of $33,250-00 (thirty three thousand and two hundred dollars) from the Housing Authority which was secured by a mortgage over the property. Drauniniu also made an initial cash deposit payment of $3,094.00 (three thousand and ninety four dollars) towards the purchase and had $3,218.00 (three thousand two hundred and eighteen dollars)
transferred out of his Fiji National Provident Fund account out of his eligibility for housing assistance.

[9]. Drauniniu lost the property when Housing Authority exercised its power of sale over it and sold it to the plaintiffs. Drauniniu alleges that the Housing Authority acted with impropriety in its handling of his loan account. In court, Mr. Tunidau submitted that there was in fact no cause for Housing Authority to exercise its power of sale under the mortgage. He appears to rely on the following argument:

• (i) Drauniniu had in fact paid off the principal debt of $33,250.00 plus a surplus of $23,120.00[1].
  
• (ii) The Housing Authority of Fiji had provided Drauniniu with a Statement of Account which showed a loan balance of $31,862.04[2]. However, the Housing Authority did not explain to him whether the surplus of $23,120.00 that he had paid is included in the $31,862.04.
  
• (iii) in 2007, Drauniniu was temporarily out of employment. During that time, he made arrangements with his brother (the defendant in this case) and the Housing Authority for his brother to continue the payments by direct deduction of $200 per fortnight from his brother's FEA salary. After ten deductions from 14 December 2007 to 18 April 2008[3], the direct deductions were ceased by Housing Authority. I note[4] that the brother then made cash payments at Housing Authority but that did not start until 31 March 2009 to 28 November 2011. Which means that there was a brief period of lapse. I note also that the amount paid by the brother was not consistent (the amount he paid on each occasion fluctuated between $50-00 to $150 on the first 16 payments and thereafter mostly in excess of $200).
  

[10]. Notably, Drauniniu's affidavit mentions nothing about how interest might have accrued on the principal loan amount or on any arrears thereon and/or for that matter – what kind of interest(s) might have been applied thereon. His affidavit goes to great length though in setting out the details of every payment he has made and also to exhibit every supportive documentation.

[11]. There is nothing in Drauniniu's affidavit against the plaintiffs. In his submissions in court, Mr. Tunidau conceded that his client does not allege fraud or any form of impropriety against the plaintiffs. His client's allegations are all directed against the Housing Authority.

[12]. Under section 169, as soon as documentary title to land is established by the plaintiff - the onus shifts immediately to the defendant to show cause why an order should not be made against them to give vacant possession to the plaintiffs.

[13]. I am not satisfied that the defendant has shown any tangible evidence establishing a right to continue in possession or at least supporting an arguable case for such a right. He actually relies on the affidavit of his brother, Onisivoro Drauniniu.

[14]. Drauniniu makes some serious allegations of impropriety against the Housing Authority of Fiji. He has no problems with the plaintiffs. The plaintiffs – from where I sit – acquired the property as bona fide purchasers for value.

[15]. Drauniniu lost his title to the property when the Housing Authority exercised its power of sale and sold it to the plaintiffs. His entitlement to redeem the mortgaged property ceased thereupon the time of sale to the plaintiffs[5].

[16]. And under section 79 (3) of the Property Law Act (Cap 130), the plaintiffs' title cannot be impeached on the ground of any impropriety of the Housing Authority – although Drauniniu may pursue a writ claim for damages against the Housing Authority.

Mortgagee may sell

79. -(1) If default in payment of the mortgage money or in the performance or observance of any covenant continues for one month after the service of the notice referred to in section 77, the mortgagee may sell or concur with any other person in selling the mortgaged property, or any part thereof, either subject to prior leases, mortgages and encumbrances or otherwise, and either together or in lots, by public auction or by private contract, or partly by the one and partly by the other of those methods of sale, and subject to such condition as to title or evidence of title, time or method of payment of the purchase money or otherwise as the mortgagee thinks fit, with power to vary any contract for sale and to buy in at any auction or to vary or rescind any contract for sale and to resell without being answerable for any loss occasioned thereby, with power to make such roads, streets and passages and grant such easements of right of way or drainage over the same as the circumstances of the case require and the mortgagee thinks fit, and may make and sign such transfers and do such acts and things as are necessary for effectuating any such sale.

(2) No purchaser shall be bound to see or inquire whether default has been made or has happened, or has continued, or whether notice has been served, or otherwise into the propriety or regularity of any such sale.

(3) Where a transfer is made in purported exercise of the power of sale conferred by this Act, the title of the transferee shall not be impeachable on the ground that no cause had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by any unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

[17]. The above section complements the protection afforded to a bona fide purchaser for value under sections 38, 39 and 40 of the Land Transfer Act (Cap 132).

[18]. Having considered all, I grant order in terms of the application. The defendant is to vacate the property described hereinabove paragraph 2 within 28 days of the date of this ruling. I also award costs to the plaintiffs in the sum of $650-00 (six hundred and fifty dollars).

.............................
Anare Tuilevuka
Master
At Lautoka.
20 January 2012.

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^[1] See paragraphs 34 to 36 of Drauniniu’s affidavit.
^[2] See paragraph 36 and Annexure OD6 of Drauniniu’s Affidavit.
^[3] See paragraphs 27, 28 and 29 of the Affidavit.
^[4] See paragraph 30 of the Affidavit.
^[5] See section 72 of the Property Law Act (Cap 130).

72.-(1) A mortgagor is entitled to redeem the mortgaged property at any time before the same has been actually sold by the mortgagee under his power of sale, on payment of all moneys due and owing under the mortgage at the time of payment.