Mal v Sahib [2015] FJHC 252; HBC02.2015 (16 April 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 02 OF 2015

BETWEEN:

SURUJ MALof Nacekoro, Savusavu, Farmer/Driver
Plaintiff

AND:

SHEIK ABDUL RASHEED SAHIB of Nacekoro, Savusavu, Businessman in purpura persona
First Defendant

AND:

SHEIK ABDUL RASHEED SAHIB of Nacekoro, Savusavu as administrator de-son-tort in the estate of Habib Bi
Second Defendant

AND:

JOHN MORELLof Labasa Town, Labasa
Third Defendant

BEFORE: The Hon. Mr. Justice D. C. Alfred

On Thursday the 16th day of April 2015

COUNSELS: Mr. A Kohli (instructed by Maqbool & Company) for the Plaintiff

Mr. K. Ratule (Mr. A Ram with him) for the First and Second Defendants

INTERLOCUTORY JUDGMENT

1. This is a Notice of Motion in which the Plaintiff is seeking the following injunctive relief:

a. Injunction restraining the defendants by themselves or their servants or agents or howsoever from interfering with the plaintiff's rights and entitlement on the said CT No.20823 and his occupation of and coming within 200 meters from the precincts of his dwelling.

b. An injunction restraining the 1st and 2nd defendant from disposing, removing, dealing with and/or dismantling fixtures and trees contained on CT No. 20823.

c. An order restraining the defendants from evicting the plaintiff from CT No. 20823 and/or in any way whatsoever whether by himself or servants or agents interfering with the peaceful occupation by the plaintiff and his family of the said land.

d. An order restraining the 1st and 2nd defendant from selling or attempting to sell or otherwise dispose of or deal with the said CT No. 20823 or further or otherwise encumbering the said title.

e. That the defendants, their servants or agents and others acting on their behalf be restrained from evicting the plaintiff and his family.

f. For an order that High Court Civil Action No. 54 of 2014 be stayed pending determination of this action.

The Application is made pursuant to Order 29 Rule 1(2) of the Rules of the High Court.

2. The subject matter of the Civil Action is a piece of land held under Certificate of Title No. 20823 (which land and title are hereinafter described respectively as the land and the title).

3. The matter came up for hearing before me on 15th April 2015 when the Counsels aforementioned appeared before me. At the conclusion of the hearing I reserved judgment to today.

4. Having the nature of the relief sought by the Plaintiff expressed clearly in his prayers, I can move to the grounds stated by the Plaintiff in support of his Application. These are clearly stated in the Plaintiff's Affidavit In Support affirmed on 18thFebruary 2015. Therein he stated that:

(a) One, Mastan Sahib (since deceased) the then registered proprietor of the land had sametime in December 1986 requested him and his family to move onto the land and stay as a caretaker, on, what Plaintiff said was, the condition/ promise/undertaking and assurance that upon subdivision he would be given a half acre of the land at no costs whatsoever.

(b) That when Mastan Sahib died, his widow and administratrix and trustee had not interfered or disturbed with his occupation of the land.

(c) That when the land was transferred to the First Defendant it was done so fraudulently and designed to defeat his, the plaintiff's rights and entitlement to the land and also to defeat section 6 (1) of the Land Sales Act (Cap 137) .

(d) He was entitled to the land because he had been in open possession of the land and therefore entitled to the property in the tittle by virtue of adverse possession.

5. The First Defendant and his alter ego the Second Defendant had his
Affidavit In Opposition affirmed on 16th March 2014 (should be 2015). This Affidavit displays a deplorable lack of attention to correctness of contents, with the Plaintiff described in many paragraphs as "the Defendant" e.g. in paragraph 8. This has compelled me to engage in forced research. This Affidavit states in essence.

(a) The said Mastan Sahib the father of the First Defendant had placed the Plaintiff on the land as a caretaker.

(b) The alleged interest, in the land, of the Plaintiff is only for half an acre, which is denied.

(c) The alleged interest in the land was not in writing as required by the Indemnity Guarantee and Bailment Act (Cap 232).

(d) At the material time he, the First Defendant was residing in Suva.

(e) He only acquired New Zealand citizenship in 2005 which was subsequent to the transfer of the land to him in 2004.

(f) The Plaintiff was not entitled to assert adverse possession because he was a mere licensee.

(g) That estoppel did not apply and even if it did could only apply to the registered owner who had made the promise and not to a subsequent proprietor like himself.

(h) That this Court could not restrain him, the First Defendant from proceeding with Civil Action No. 54 of 2014.

6. A perusal of the Plaintiff's Affidavit in Reply adds nothing to the picture

7. Having crystalized the issues presented to this Court by both sides, it is necessary for me to look at the applicable laws and ascertain the judicial solution. This I will do under the following heads:

1. LEGAL POSITION OF THE PLAINTIFF VIS A VIS THE LAND.
   

The Plaintiff has clearly no documentary evidence or proof of his alleged claim to the land, any part of it or the title.

2. LEGAL POSITION OF THE PLAINTIFF UNDER THE TORRENS SYSTEM OF LAND REGISTRATION.
   

The essence of this system is title by registration NOTregistration of title. My careful perusal of the copy of the title attached to the Affidavit In Support of the Plaintiff does not show the Plaintiff as the proprietor of the land. On the contrary, it shows the First Defendant as the proprietor at the present time and since 15th July 2004. In my considered opinion, no equitable right can prevail or override this.

100. LEGAL POSITION UNDER THE INDEMNITY, GUARANTEE AND BAILMENT ACT.
     

The relevant section is section 59(d) this, I reproduce below:

Promises or agreements by parol

59. No action shall be brought—

(a) whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or

(b) whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; or

(c) to charge any person upon any agreement made upon consideration of marriage; or

(d) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; or

(f) upon any agreement that is not to be performed within the space of one year from the making thereof,

Unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.

The Plaintiff fails because he has not produced for the Court's perusal any written memorandum or note thereof.

4. LEGAL POSITION OF THE FIRST DEFENDANT.
   

The operative date is 15 July 2004 the date of the transfer (herein after the date). A perusal of Annexure 'D' of the First Defendant's Affidavit in Opposition shows clearly he is a citizen of Fiji. (at the date) while Annexure 'C' shows he became a citizen of New Zealand on 17thJune 2005 about 11 months after the date. I turn to the interpretation section 2 of the Land Sales Act (Cap 137) which defines "resident" in the case of an individual as a Fiji citizen. This clearly the First Defendant was on the date.

At this juncture, Counsel for the Plaintiff, correctly and to his credit, abandoned his arguments relating to the alleged non-resident status of the First Defendant and the requirement of ministerial consent. There was therefore no necessity for me to look at section 6 of the aforesaid Act

5. Order to stay Civil Action 54 of 2014 (the action). This can be quickly disposed off in the light of the Fiji Court of Appeal decision in Dinesh Jamnadas Lalji & Anor v Hanson LimitedFCA Civ. App 22/85 which held that the existence of other proceedings was not sufficient cause to resist an application under section 169 of the Land Transfer Act, which is what the action is all about. This authority I will apply herein.
   

8. Conclusion

In the light of the above grounds of judgment I am of opinion that the Plaintiff has no basis at all for the injunctions and orders sought by him. I so find and I so hold that prayers a, b, c, d, e and f cannot be allowed and I hereby refuse to grant the order prayed for in each of a, b, c, d, e, and f. That being the case there is no need for me to consider the various aspects that accompany any application for an injunction and the attendant undertaking as to damages. I dismiss the Notice of Motion dated 18th February 2015.

With regard to the question of costs, I must confess it has given me cause for thought. I have therefore decided that although the normal course is that costs follow the event, in the particular circumstances of this case I will order each party to bear their own costs.

Delivered at Labasa, this 16th day of April, 2015.

D. C. Alfred
JUDGE

High Court of Fiji