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Begum v Ali [2015] FJHC 230; HBC89.2014 (27 March 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO. HBC 89 of 2014


IN THE MATTER of section 169 of the Land Transfer Act (Cap 131)


BETWEEN:


SHAH JAHAN BEGUM of Lautoka Fiji, Retired School

Teacher and ABDUL AZAM ALI of Kavuli, Tavua, Cultivator
PLAINTIFFS


AND:


AZMAT ALI of Kavuli, Tavua, Fiji, Cultivator
DEFENDANT


Mr. William John Edwin Rosa for the Plaintiffs
Mr. Sidiq Koya appeared with Ms. Isobel Stevens for the Defendant


Date of Hearing:- 23rd February 2015
Date of Ruling :- 27th March 2015


EXTEMPORE RULING


(A) INTRODUCTION

(1) By summons dated 06th June 2014, the Plaintiffs seek an order that the Defendant deliver immediate vacant possession of the premises and land comprised in CT No:- 17316 known as Nabuta comprising 17 acres and 17 perches being lot 12 on DP No:- 3401, Tavua.

(2) The application is made under Section 169 of the Land Transfer Act, Cap 131, supported by an Affidavit.

(3) The Defendant has filed an affidavit in opposition opposing the application followed by an affidavit in reply thereto.

(4) The Plaintiffs and the Defendant were heard on the Summons. They made oral submissions to court. In addition to oral submissions, the Plaintiffs filed written submissions to which I am grateful. Regrettably, the Defendant failed to do so.

(B) FACTUAL BACKGROUND

(1) The Plaintiffs, in their affidavit in support of summons depose as follows;
  1. THAT we are the legal owners and hold title for all that part of land being CT No.17316 known as Nabuta (part of comprising 17 acres and 17 perches being Lot 12 on DP No. 3401, Tavua on the island of Viti Levu, (hereinafter referred to as the "said property"). Annexed hereto marked as annexure "A" is a copy of the title.
  2. THAT we are the bona fide purchasers of the said property through Land Transfer dated 7th May, 2009 for the consideration sum of Five Thousand dollars ($5,000.00) paid to the vendor. Annexed hereto marked as annexure "B" is a copy of the said Transfer.
  3. THAT the Defendant is occupying part of the said property.
  4. THAT we have demanded the Defendant to vacate and deliver up vacant possession of the said property but he refused to vacate the same. We through our Solicitors issued an eviction notice against him which was duly served upon the Defendant on the 22nd day of April, 2014. Annexed hereto marked as annexure "C" and "D" is a copy of the said Notice and Affidavit of Service.
  5. THAT the Defendant is a trespasser and a source of continuing nuisance.
  6. THAT in the premises we hereby pray to Honourable Court for orders in terms of our Summons filed herein.

(2) The Defendant in his affidavit in opposition deposes as follows;
  1. On the 24th day of November 1988, a Deed was made between Mr. Ramzan Ali and myself (hereinafter called "the Deed"). Mr. Ramzan Ali is my father as well as the Plaintiffs and is also the Transferor of Certificate of Title No. 17316 in favour of the Plaintiffs.
  2. Annexed hereto and marked with the letter "A" is copy of the Deed dated the 24th day of November 1988, Registration No. 2175.
  3. Under Clause 1 of the Deed, it was agreed that Mr. Ramzan Ali shall hold 5 acres on my behalf. Clause 1 of the Deed reads as follows:-

"1. THE Son shall transfer all his rights titles estates and interests in the said land to the name of the Father who shall hold the same as trustee for himself and the Son in the shares namely:-


(i) 5 acres shall be held by the Father for the son;
(ii) The balance shall be held by the Father for himself absolutely.
  1. Further in Clause 3 of the Deed it clearly states that I am entitled to retain the house site presently used by me. I have not extended the house site in any way and neither have I built a new house.
  2. Survey was also carried out for the five (5) acres of land that is occupied by me legally pursuant to the Deed.
  3. I refer to Transfer No. 718787 which is annexure "B" in the Plaintiffs affidavit filed on the 4th day of June 2014. Mr. Ramzan Ali transferred the whole 17 acres 17 perches to the Plaintiffs whereas he should have only transferred 12 acres 17 perches. The remaining 5 acres should have been transferred to me under Clause 1 of the Deed.
  4. I took possession of the 5 acres of the land comprised in Certificate of Title No. 17316 after the Deed was executed by my father and me and this was according to Clause 4 which reads as follows:-

"4. THAT possession of the said shares shall be given to and taken by the Father and the Son forthwith upon execution hereof."


  1. I verily believe that I am entitled to 5 acres of the land comprised in Certificate of Title No. 17316 which I have had and lived on since 1988 pursuant to the Deed. I am not a trespasser and neither I am a nuisance as stated in the affidavit of the Plaintiffs filed in support of their summons for vacant possession.
  2. I also verily believe that the Plaintiffs ought to transfer 5 acres of the land to me to which I am entitled to.
  3. I therefore ask this Honourable Court to dismiss the Plaintiffs application for vacant possession filed herein and ask for costs on a Solicitor Client indemnity basis.
(3) In rebuttal, the Plaintiffs depose as follows;
  1. THAT we do not have any knowledge or any information of the Deed made on the 24th day of November, 1988 between Ramzan Ali and the Defendant.
  1. THAT we agree with the first part of paragraph 9 which states that Mr. Ramzan Ali transferred 17.7 acres to the Plaintiffs as per Transfer No. 718787 but we are not aware of the remaining 5 acres of land pursuant to the deed therefore we do not agree nor deny the same.

(C) THE LAW

(1) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.

Section 169 states;


"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) .....;

(c) ...


Section 170 states;


"The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons."


Section 171 states;


"On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in Ejectment.


Section 172 states;


"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgage or lessor or he may make any order and impose any terms he may think fit;


Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:


Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

[Emphasis provided]


(2) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-


"s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."


"s.172. If a person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit."


It is for the defendant to 'show cause.'


(3) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) as follows and it is pertinent:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced."


(4) The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Ajmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:

"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require."


(D) ANALYSIS

In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-


"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." (Emphasis is mine)


Also it is necessary to refer to section 172 of the Land Transfer Act, which states;


"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgage or lessor or he may make any order and impose any terms he may think fit;


Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:


Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.


[Emphasis provided]


(10) The Defendant in his affidavit in opposition explains his right to possession as follows;
  1. On the 24th day of November 1988, a Deed was made between Mr. Ramzan Ali and myself (hereinafter called "the Deed"). Mr. Ramzan Ali is my father as well as the Plaintiffs and is also the Transferor of Certificate of Title No. 17316 in favour of the Plaintiffs.
  2. Annexed hereto and marked with the letter "A" is copy of the Deed dated the 24th day of November 1988, Registration No. 2175.
  3. Under Clause 1 of the Deed, it was agreed that Mr. Ramzan Ali shall hold 5 acres on my behalf. Clause 1 of the Deed reads as follows:-

"1. THE Son shall transfer all his rights titles estates and interests in the said land to the name of the Father who shall hold the same as trustee for himself and the Son in the shares namely:-


(i) 5 acres shall be held by the Father for the son;

(ii) The balance shall be held by the Father for himself absolutely.
  1. Further in Clause 3 of the Deed it clearly states that I am entitled to retain the house site presently used by me. I have not extended the house site in any way and neither have I built a new house.
  2. Survey was also carried out for the five (5) acres of land that is occupied by me legally pursuant to the Deed.
  3. I refer to Transfer No. 718787 which is annexure "B" in the Plaintiffs affidavit filed on the 4th day of June 2014. Mr. Ramzan Ali transferred the whole 17 acres 17 perches to the Plaintiffs whereas he should have only transferred 12 acres 17 perches. The remaining 5 acres should have been transferred to me under Clause 1 of the Deed.
  4. I took possession of the 5 acres of the land comprised in Certificate of Title No. 17316 after the Deed was executed by my father and me and this was according to Clause 4 which reads as follows:-

"4. THAT possession of the said shares shall be given to and taken by the Father and the Son forthwith upon execution hereof."


  1. I verily believe that I am entitled to 5 acres of the land comprised in Certificate of Title No. 17316 which I have had and lived on since 1988 pursuant to the Deed. I am not a trespasser and neither I am a nuisance as stated in the affidavit of the Plaintiffs filed in support of their summons for vacant possession.
  2. I also verily believe that the Plaintiffs ought to transfer 5 acres of the land to me to which I am entitled to.
  3. I therefore ask this Honourable Court to dismiss the Plaintiffs application for vacant possession filed herein and ask for costs on a Solicitor Client indemnity basis.
(11) Counter to this argument, the Plaintiffs deposed as follows in affidavit in reply;
  1. THAT we do not have any knowledge on any information of the Deed made on the 24th day of November, 1988 between Ramzan Ali and the Defendant.

(i) THAT we admit and acknowledge the transfer of CT 17316 in our favour.


  1. THAT we agree with the first part of paragraph 9 which states that

Mr. Ramzan Ali transferred 17.7 acres to the Plaintiffs as per Transfer No. 718787 but we are not aware of the remaining 5 acres of land pursuant to the deed therefore we do not agree nor deny the same.


(12) (1) In a nutshell, for his right to the possession of the property, the defendant relies heavily on the deed executed between himself and Ramzan Ali on 24th November, 1988.


(2) On the strength of this deed, the Defendant submits that;


➢ The Defendant is entitled to 05 acres and the remaining 12 acres shall belong to "Ramzan Ali"

➢ That Ramzan Ali held on Trust the Defendant's entitlement of 05 acres.

➢ That Ramzan Ali had no right to transfer the entire property to the Plaintiffs.

(13) In rebuttal, the Plaintiffs submit that;

(14) I have given careful consideration to the deed executed between the Defendant and Ramzan Ali on 24th November 1988. It is manifest that;

Section 102 of the Land Transfer Act provides:


"Every memorial entered in the register or endorsed on any duplicate instrument of title of any transfer of any estate or interest in land subject to the provisions of this Act in favour of any trustees shall, if the instrument of transfer is supported by lodgement with the Registrar of the originals or certified true copies of all instruments creating or evidencing the trust, include the words "as trustees" after the names and designations of the persons registered as the proprietors thereof, and the Registrar shall not make any other entry relating to any such trust in the register; but shall preserve in the registry the original or certified true copies as the case may be, of the instruments creating or evidencing the trust produced to him under the provisions of this subsection."


➢ Ramzan Ali transferred his property (C.T. 17316) on 07th May 2009, to the Plaintiffs under registered Transfer No:- 718787.

(15) There is nothing in the memorials on CT 17316 to establish any semblance of trust. On the strength of this, I have no hesitation in holing that the argument put forward by the Defendant is devoid of any merits as such is rejected.

(16) After an in-depth analysis of the totality of the affidavit evidence in this case, the following salient facts have to be noted;

(17) On the strength of this, I am inclined to take the view that the principle of "indefeasibility of title" comes into operation in this action.

(18) Section 39 (1) of the Land Transfer Act, can be regarded as the basis of the concept of "indefeasibility of title of a registered proprietor."

(19) Therefore, it is pertinent at this stage to refer to section 39 (1) of the Act, which states;

"39-(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium if the register, constituted by the instrument of title thereto, but absolutely free from all other encumbrances whatsoever except...


(20) I am conscious of the fact that section 40 of the Land Transfer Act seeks to dispel Notice of a Trust or unregistered interest in existence in the following manner;

40. Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud." (underlining mine).


(21) With regard to the concept of "indefeasibility of title of a registered proprietor", the following passage from the case of "Eng Mee Young and Others (1980) Ac 331 is apt and I adopt it here;

"The Torrens system of land registration and conveyancing as applied in Malaya by the National Land Code, has as one of its principle objects to give certainty to land and registrable interests in land. Since the instant case is concerned with Title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By s.340 the title of any person to land of which he is registered as proprietor is indefeasible except in cases of fraud, forgery or illegality and even in such cases a bond fide purchase for value can safely deal with the registered proprietor and will acquire from him on indefensible registered title."


(22) In "Prasad v Mohammed" (2005) FJHC 124; HBC 0272J.1999L (03.06.2005) Justice Gates (as he was then) succinctly stated the principles in relation to fraud and indefeasibility of title as follows;

[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 Register 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 judgement of the Board said:


"It is to be noticed that each of these sections except the case of fraud, setion 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 of his agent: Assets Co Ltd v Mere Roihi.


It is these sections which, together with those next referred to, confer upon the registered proprietor what has come to be called "indefeasibility of title. "The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration."


[14] Actual fraud or moral turpitude must therefore be sown on the part of the plaintiff as registered proprietor or of his agents Wicks v. Bennet [1921] HCA 57; [1921] 30 CLR 80; Butler v Fairclough [1917] HCA 9; [1917] 23 CLR 78 at p.97


(23) It is clear from these decisions that under Torrens system of Land Law the registration is everything and only exception is fraud. The Defendant did not bring in the question of fraud to defeat the indefeasibility of Title. There is nothing in the affidavits to establish any semblance of fraud. Therefore, I am inclined to agree with the Counsel for the Plaintiffs that the title to the land is not subject to any interest, equitable or otherwise; of the Defendant. I have no hesitation in holding that the Plaintiffs hold an indefeasible title.

(24) Therefore, I entirely agree with the contention of the Counsel for the Plaintiffs.

(25) Finally, in the course of argument, the counsel for the Defendant submitted that the facts are complicated and in dispute. On the strength of this he submitted that this is not a suitable case for summary proceedings. With respect, I do not agree. I remain utterly unimpressed by the argument put forward by the counsel for the Defendant. It is absurd to think that the facts are complicated. I must assert that the basic facts were not in dispute. Moreover, the issues involved are straight forward. It must be borne in mind that;

Consequently, in my view the proceedings are correctly brought under section 169 of the Land Transfer Act. The argument put forward by the Counsel for the Defendant is devoid of any merits as such is rejected.


It is essential to bear in mind the words of "Goud" J, in Ram Narayan v Moti Ram", (Civil Appeal No. 16/83 FCA);


"... the summary procedure has been provided in the Land Transfer Act and where the issues involved are straight forward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."


(26) Before I take leave of the matter, I echo the words of DENNISTON, EDWARDS, COOPER & CHAPMAN JJ. IN "FELS AND ANOTHER V KNOWLES AND ANOTHER [1906] NZGazLawRp 66; (1906) 26 NZLR 604) that:

"The cardinal principle of the Land Transfer Acts is that the register is everything, and that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world. Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest registered, or in the cases in which registration of a right is authorised – as in the case of easements or incorporeal rights – to the right registered" (underlining mine)


(E) CONCLUSION

(1) The Defendant has failed to show cause to remain in possession as required under section 172 of the Land Transfer Act. The Plaintiffs title as registered proprietors is indefeasible in these circumstances.

(2) In the circumstances, it is my considered view that the Plaintiffs are entitled to an order as prayed in summons for immediate vacant possession.

(F) FINAL ORDERS

(1) I order the Defendant to deliver immediate vacant possession of the land described in the summons.

(2) I award costs against the Defendant in the sum of $1000.00 (summarily assessed)

.......................................
Jude Nanayakkara
Acting Master of the High Court


At Lautoka
27/03/2015

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