Singh v Prasad [2012] FJHC 851; Civil Action 121.2011 (2 February 2012)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

Civil Action No. 121 of 2011

BETWEEN:

SOHAN SINGH of 6821 Saddle Horse Way, Sacramento, CA 95821 USA.
PLAINTIFF

AND:

MAHESH PRASAD of Tagitagi, Tavua, Cultivator.
DEFENDANT

Before: Master Anare Tuilevuka
Appearances: Mr. Kamal Kumar of Young & Associates for the Plaintiff.
: Mr. Degei of Haroon Ali Shah Esquire for the Defendant.
Date of Ruling: Thursday 02 February 2012.

RULING

INTRODUCTION

[1]. Sohan Singh is the registered lessee of Lot 22 on RR 916, Tagitaginatua Subdivision in Tavua in the Province of Ba. A copy of the said lease is annexed to his affidavit. The land is 7 acres, 2 roods and 15 perches in size and is comprised in i Taukei Lease No. 29433. There is an application before me seeking an Order under section 169 of the Land Transfer Act (Cap 131) against Mahesh Prasad, the defendant, to show cause why he (Prasad) should not vacate and deliver up immediate vacant possession of the land in question. The intitulement names Sohan Singh as the plaintiff. Both affidavits filed in support of the summons are sworn by one Balbir Singh who, I understand, is the brother of Sohan Singh.

IRREGULARITIES

[2]. The following irregularities I have picked out when reviewing this file.

[3]. Firstly, there is no clear evidence that Sohan Singh is involved in these proceedings and/or has given authority to Balbir Singh to institute these proceedings.

[4]. Secondly, as stated, both affidavits filed in support of the application were sworn by Balbir Singh.

[5]. Balbir Singh appears to derive his authority to swear these affidavits on a power of attorney (No. 5225) granted to him by Sohan Singh which is annexed to his affidavit.

[6]. But the powers granted by the instrument is rather limited in scope. The first part appears to relate to a particular property (NLTB 4/4/268) while the second part, though more general in tone, when read carefully, actually only relates to the first part (see below the wording of the powers granted).

To execute a deed or other instrument of conveyance conveying my interest in the following real property:

NLTB 4/4/268 and Certificate of Registration number 221/2918 (contract number 2918).

To act for me in the (sic) regard to the following: Will have all Banking rights and sign all documents relating to Sugar Cane farm and House. Balbir Singh have (sic) the full right to rent, lease the property and take any action required against the tenants.

............................................................................................

(bolding and underlining mine)

[7]. Mr. Justice P. Nawana in Ram v Lok [2011] FJHC 798; HBC320.2007 (9 December 2011) [1] observed that in a power of attorney, general words conferring power are construed narrowly by reference to special powers conferred.

[8]. The land in question in this case before me[2] is described as Lot 22 on RR 916, Tagitaginatua Subdivision in Tavua in the Province of Ba. The land described in the power of attorney is NLTB 4/4/268 and Certificate of Registration number 221/2918 (contract number 2918). If they are the one and the same land, I remain unconvinced as no attempt has been made to explain their different numbering.

[9]. Also - until the above confusion is cleared, I remain doubtful as to whether Balbir Singh does not have any authority to be swearing any affidavit in these proceedings – let alone – be instituting these proceedings.

[10]. I accept there is some documentation[3] tending to indicate that Sohan Singh did – at some stage - want Mahesh Prasad evicted from the property – but has he actually authorized Balbir Singh to institute the proceedings currently now before me at this time?

[11]. Fourthly, the application appears to be premised on a Legal Notice to Quit dated 13 July 2011. No copy of this Notice is annexed to any of the two affidavits of Balbir Singh or in the affidavit of service of Alifereti Tokoa. While I accept that no Notice to Quit is required under section 169(a) and (b), the application before me was premised on a Notice which has not been put before me in evidence.

CONCLUSION

[12]. For the above reasons, I am reluctant to deal with the section 169 application before me and accordingly, I dismiss the summons. Balbir Singh is of course at liberty to file a fresh summons once the issues concerning the power of attorney are sorted out. Costs to the defendant in the sum of $450-00 (four hundred and fifty dollars).

Anare Tuilevuka
Master

At Lautoka.
02 February 2012.

---

^[1] 56. Halsburry's Laws of England; Fourth Edition, Page 438 defines a Power of Attorney . It states:

An instrument conferring authority by deed is termed a power of attorney . The person conferring the authority is termed the donor of the power, and the recipient of the authority, the donee. A power of attorney is construed strictly by the courts, according to well recognized rules, regard first being had to any recitals which, showing the general object, control the general terms in the operative part of the deed.

General words used in conferring the power are construed as limited by reference to the special powers conferred, but incidental powers necessary for carrying out the authority will be implied. Thus, a power granted to the donee to manage certain property followed by general words giving him full power to do all lawful acts relating to the donor's business and affairs... does not necessarily include authority to indorse bills, for the general words are construed as having reference to managing the donors property for which indorsing bills may not be incidental or necessary...

57. It is stated that:

'All attorneys are, in fact, agents, but all agents are not necessarily attorneys in fact. ... By attorneys, in fact, are meant persons who are acting under special power created by a deed...

Powers of Attorney are strictly construed. This rule applies not only to the interpretation to be placed upon each individual power conferred by the instrument; it applies with equal force to the purpose which the instrument is construed to subserve from a general reading of it as a whole' (At page 22).
( Powers of Attorney : F Bower Alcock; London Sir Isaac Pitman & Sons, Ltd; 1935 Pg. 1 and 22 respectively).

^[2] See description in paragraph 1 above.
^[3] e.g. In his affidavit in reply, Balbir Singh annexes a letter of instruction dated 27 April 2010 by Sohan Singh to Chandra Singh & Associates instructing the latter to “remove Mr. Mahesh Prasad who is residing at my Property at Tagitagi Tavua”.

Balbir Singh also annexes a letter from Sohan Singh to the defendant dated 24 May 2011 which states as follows:

This notice is to inform you that your tenancy will be terminated in 30 THIRTY days from the date of service for this notice. You were allotted to reside within my property however you are now required to vacate the premises and remove all your possessions from the premises by this date: June 28, 2011 without any questions asked. My new laborer will be residing in my property by July 2011. All keys to the premises are to be returned upon your move (sic) out.