Bauleka v Colati [2014] FJHC 311; HBC236.2011 (7 May 2014)

In the High Court of Fiji at Suva
Civil Jurisdiction

HBC Action No: 236 of 2011

Between:

Viliame Bauleka
Plaintiff

And:

Viliame Vakacoco Colati
Defendant

Appearances: Mr Raman Singh for the plaintiff
The defendant in person
Date of hearing: 28th August, 2013

JUDGMENT

1. The plaintiff and his former wife(now deceased) are registered as joint tenants of a property. The defendant is the administrator of the estate of the deceased. In these proceedings brought by way of originating summons, the plaintiff seeks the sale of a property and equal distribution of the net proceeds between the parties.
   
2. The plaintiff seeks the following orders:
   
   • (i) AN ORDER for sale of property comprised in Methodist Church, Lease No: 430271 Davuilevu [part of] Lot 6 on DP No; 6818 having an area of 796 Sqm with the dwelling thereon (hereafter referred to as "said property") by public tender to be handled by the Plaintiff's Solicitors under the direction of the Court and the net proceeds of any sale be distributed equally between the Plaintiff and the Defendant.
     
   • (ii) AN ORDER for the Defendant to give accounts for the Estate property and pay the Plaintiff share of the income to him.
     
   • (iii) AN ORDER that the legal costs of these proceedings including disbursements relating to the valuation and sale of the said property to be paid out of the funds of the estate on an indemnity basis.
     
3. In an affidavit in support, Saimone Koroiyadi, states:
   
   • (a) He is a brother of the plaintiff and authorized by power of attorney,(as attached) to swear the affidavit.
     
   • (b) The plaintiff and Fane Lotu Lewanilau,(deceased) are registered as "joint owners as tenants in common" of Methodist Church, Lease No: 430271( the property).
     
   • (c) The deceased was married to the plaintiff .Their marriage was dissolved on 1st March, 2006, leaving no issue.
     
   • (d) Fane Lotu Lewanilau died on 27thJune,2007,at Naqawa, Taveuni. Letters of Administration in her estate was granted to the defendant on 16 January,2008.
     
   • (e) The property is occupied by relatives of the defendant, without rent being paid to the plaintiff.
     
   • (f) The plaintiff by letter dated 20th September, 2010, addressed to the defendant sought distribution of the property by sale.
     
   • (g) The beneficiaries have not contributed towards payment of annual rentals which was in arrears, in a sum of $1,580.00. He has paid the arrears of rent.
     
   • (h) The plaintiff is the holder of one undivided half share of the property and entitled to the proceeds or a share upon distribution.
     
   • (i) The plaintiff resides at New South Wales, Australia and derives no benefit from the property.
     
4. The defendant, in his affidavit in reply, states:
   
   1. The plaintiff's name was added to the title of the property, after his marriage to the late Fane Lotu Lewanilau. The plaintiff did not contribute monetarily to the purchase of the property. It was acquired during the first marriage of the late Fane Lotu Lewanilau to the late Apenisa Takalaivuna.
      
   2. When the marriage of the plaintiff and the late Fane Lotu Lewanilau was dissolved on 1st March,2006, the Court also considered the distribution of the property.
      
   3. The defendant states that the "plaintiff, as part of the settlement and dissolution of marriage voluntarily surrendered his share to the property... The Court therefore ordered that at the grant of the dissolution of marriage, the plaintiff was to have no further interest in the property".
      
   4. He occupies the property as sole administrator.
      
   5. The plaintiff has no business in the annual rentals of the property. He has made arrangements with the Methodist Church of Fiji, for the clearance of the annual rentals. He did not make any arrangements with the plaintiff to make payments.
      
   6. The defendant concludes that the plaintiff has no right to derive any benefit from the property, since he no longer has any proprietary right to the property.
      
   7. The plaintiff's claim is frivolous, vexatious and scandalous .
      
5. The hearing

5.1. At the hearing, Mr Raman Singh, counsel for the plaintiff submitted that the plaintiff owns an undivided half share of the property. He seeks a sale of the property and distribution of the proceeds under section 119(2) of the Property Law Act,(cap 119).

5.2. The defendant contended that the plaintiff had agreed in the Magistrate's Court, to surrender his possession to his former wife, on the dissolution of their marriage.

5.3. Mr Raman Singh advanced two arguments in riposte. The first was that the plaintiff had not completely transferred the property to his former wife. The handing over was not complete. The second contention was that under the relevant lease, the consent of the lessor had to be obtained for any transfer.

6. The determination

6.1. The limited question for determination in this matter is whether the plaintiff transferred his interest in the property to his former wife. The defendant relies on the Order of the Magistrate,in support of his contention that the property in the lease belonged solely to the defendant.

6.2. I would reproduce the order of the Learned Magistrate of 1st March,2006. This reads:

Respondent vide two letters both dated 6/10/05 has acknowledged that he has lived separate and apart from the applicant for more than two years and has agreed to handover his share in the property situated at Lot 6 Mastafa Road, Davuilevu Housing, Nakasi to the applicant. Accordingly, I am satisfied and proceed to make orders as per record of proceedings for dissolution of marriage. (emphasis added)

6.3. It is evident that the Learned Magistrate had only made an order for the dissolution of the marriage of the parties. It would appear that the plaintiff had agreed in the lower court, to transfer his share to his former wife.But I do not find that this intention was subsequently effected.

6.4. I would agree with Mr Raman Singh that the transfer is incomplete and imperfect. Mr Raman Singh cited the following passage from Halsbury, Laws of England,(4th Ed), Vol 20, paragraph 62 under the title "INCOMPLETE GIFTS". This reads:

Court will not complete incomplete gifts.Where a gift rests merely in promise, whether written or verbal, or in unfulfilled intention, it is incomplete and imperfect, and the court will not compel the intending donor, or those claiming under him. An incomplete gift can be revoked at any time; there is a power to draw back so long as the gift is incomplete. No question of conscience enters into the matter, for there is as the gift is incomplete. No question of conscience enters into the matter, for there is no consideration and there is nothing dishonest on the part of an intending donor who chooses to change his mind at any time before the gift is complete.(emphasis added)

6.5. In addition, the consent of the lessor was not obtained, as required under the relevant lease. The case of Re Fry cited by Mr Raman Singh is relevant to this issue. In that case, a party resident in the US desired to make a gift to his son of certain shares held in an English company. A transfer was executed and sent to the company for registration. Under the Defence (Finance) Regulations, the transfer of any securities belonging to a non resident was prohibited, unless permission from the Treasury was obtained. It was held that since the requisite consent of the Treasury had not been obtained, the company was, prohibited from registering the transfer. The son had not acquired the right to be clothed with a legal title to the shares in question.

6.6. Before I part with this case, I would state that former wife Fane Lotu Lewanilau's interest in the lease devolved on the plaintiff, upon her death.The plaintiff and his former wife were admittedly joint tenants.

6.7. Halsbury, Laws of England,(4th Ed), Vol 17, paragraph 1106 provides:

The interest of a deceased person under a joint tenancy where another tenant survives the deceased is an interest ceasing on his death.

A footnote provides that in "the case of beneficial joint tenants, both the legal estate and the beneficial interest pass by survivorship".This principle is enshrined in section 101 of the Land Transfer Act(cap 131).

7. It follows that the plaintiff's summons is misconceived.
   
8. Orders

I decline the plaintiff's summons. I make no order as to costs.

7th May, 2014

A.L.B.Brito-Mutunayagam
Judge