Chand v Chand [2015] FJHC 63; HBC278.2012 (30 January 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 278 of 2012

BETWEEN:

ROHIT NIRESH CHAND & NIRSHITA CHAND
Plaintiffs

AND:

RAJESH CHAND
Defendant

Counsel : Mr. V. Kapadia for the Plaintiffs.
: The Defendant in Person.

Date of Hearing : 7th April, 2014
Date of Judgment : 30th January, 2015

JUDGMENT

[1] The application before me is for a summary judgment under Order 14 Rule 11 of the High Court Rules.

[2] The Orders sought are:-

• (i) That the defendant do give the plaintiff immediate vacant possession of the premises bearing Certificate of Title No. 32963 being Lot 12 on DP 8348 situated at 12 Savou Road, Bayview Heights, Suva.
  
• (ii) That the Defendant do pay to the Plaintiff damages to be assessed;
  
• (iii) That the Defendant do pay costs of this application;
  
• (iv) For such further order that this Honourable Court may seem just.
  

[3] Background

The plaintiffs have purchased the land depicted in CT No. 32963 being Lot 12 on DP 8348 and are alleged to be the registered proprietors. They have filed the action as the defendant is in possession of the land stating it had been given to him by his father.

[4] The plaintiff had filed this writ of summons and the statement of claim seeking for an order for vacant possession, cost and damages.

[5] The defendant has filed a statement of defence and subsequently the plaintiff has filed this application under Order 14.

The Plaintiffs Case

[6] The plaintiff has obtained title as registered owner on 6.12.12. The property has been purchased from one Samila Wati for a price of $70,000. To purchase the plaintiff had mortgaged the land to the Westpac Banking Corporation and submits that he is paying the mortgage at a monthly rental of $675.00.

[7] However as the defendant was in possession of the land the plaintiff had sent a letter through his solicitor to the defendant on 23.12.11 to deliver vacant possession of the land. As the defendant had failed to do it the plaintiff had filed an application to the High Court for eviction. However it is alleged that the said action failed on a technical ground.

[8] The plaintiff further submits that even though the defendant is claiming possession on the basis of his father’s Will, the will had never been proven and no probate had been obtained up to now. It was further submitted that even though the Will had beneficiaries, in 2003 the defendant’s father had transferred the land to his brother who in turn has transferred it to Samila Wati and sold it to the plaintiff.

[9] The two previous owners had been siblings of the defendant. However the plaintiff submits that he purchased the land as a bonafide purchaser and has also mortgaged it t o the Westpac Bank. It is submitted that the defendant is depriving the plaintiff the use of the property and also the defendant is benefiting by occupying the property without paying any rent or city rates.

[10] Further the plaintiff claims that as per the registration of title his title is registered and indefeasible and in the absence of any fraud alleged the defendant had failed to establish any legal or equitable right to plaintiffs’ property. The plaintiff submits that he is entitled to summary judgment.

The Defendant’s Case

[11] The defendant alleges that the plaintiff’s action to evict him had failed on an earlier occasion. The defendant relying on the said ruling says that the rulings have not been appealed.

[12] That the plaintiffs’ allegation that the said property was sold to them by Samila Wati is not reflected in the Certificate of Title which is alleged to have been obtained in March (annexure B & C of the defendant affidavit in reply to the application). The defendant has alleged that the title has not passed to the plaintiff and submits that the action is frivolous and vexatious.

[13] It is pertinent to note that the defendant however has failed to deny any allegation in support of the summons for summary judgment.

Determination

[14] Being mind-full of the facts submitted with the statement of claim and the statement of defence the court will now proceed to determine the application for summary judgment.

The Principle Pertaining to Summary Judgment

[15] The Law relating to summary Judgments is well settled in this jurisdiction and the principles that ought to be followed was laid down in Carpenters Fiji Ltd –v- Joes Farm Produce Ltd. (2006) FJCA 60, ABU 0019U.2006 as per the principles laid down.

1. The purpose of O.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, bona fide defence or raise an issue against the claim which ought to be tried.
   
2. The defendant may show cause against a plaintiff’s claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.
   

100. It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff’s claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it.
     

4. Set off, which is a monetary cross claim for a debt due from the plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set off claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v. Green (1958) 2 QB 9 at page 29 per Sellers LJ.
   
5. Likewise where a defendant sets up a bona fide counter claim arising out of the same subject matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be for unconditional leave to defend, even if the defendant admits whole or part of the claim. Morgan and Son Ltd v. S. Martin Johnson Co (1949) 1 KB 107 (CA) .
   

[16] In Vatukoula Gold Mines Ltd –v- Anand [2010] FJHC 46. HOBC 219 of 2008 it has been held:-

“ Order 14 summary judgment procedure is available to any plaintiff who desires a quick judgment on his or her claim where there is no defense to a claim. It is also available where any defense raised is either not a bona fide defense or discloses no triable issues so as to merely delay a judgment in favor of the plaintiff.”

[17] The onus is on the plaintiff in a summary judgment and the way it can be resisted was discussed by Fatiaki J in Fiji Development Bank –v- Inoke Moto & Others [1995] 41 FLR 236, where he quoted a New Zealand decision and stated :

The correct approach to an application for summary judgment is succinctly summarised in my view in the head note to the New Zealand Court of Appeal decision in Pemberton v. Chappell [1986] NZCA 112; [1987] 1 NZLR 1 where it was said of the N.Z. equivalent of Order 14”

"Held: ... the High Court Rules cast onto the plaintiff the onus of convincing the Court that the defendant has no fairly arguable defence. Normally that onus will be satisfied by the plaintiff's affidavit verifying the allegations in the Statement of Claim and his oath that he believes that the defendant has no defence to the claim ... If a defence is not evident on the plaintiff's pleading and the defendant wishes to resist summary judgment, the defendant must file an affidavit raising an issue of fact or law and give reasonable particulars of the matters which he claims ought to be put in issue. Where the only arguable defence is a question of law which is clear-cut and does not require findings on disputed facts or the ascertainment of further facts, the Court may, and normally should, decide it on the application for summary judgment. But where the defence raises questions of fact on which the outcome of the cause may turn it will not often be right to enter summary judgment."

Over a century earlier in 1880 Lord Blackburn in Wallingford v. Mutual Society [1880] 5 A.C 685 said of the nature of the affidavit required from a defendant in opposing an Order 14 application at p. 704 and he quoted:- "I think that when the affidavits are brought forward to raise (a) defense they must, if I may use the expression, condescend upon particulars. It is not enough to swear "I say I owe the man nothing". Doubtless, if it was true, that you owed the man nothing as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so ... And in like manner as to illegality, and every other defense that might be mentioned."

[18] In this application the plaintiff has brought to the attention of court the Supreme Court Rule of 1999 (UK) and stated:-

7.1.1 At page 163 12/1/2 it is stated "that the purpose of O 14 is to enable a Plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant's only suggested defence is a point of law and the court can see at once that the point is misconceived.

7.1.2 At Page 164 it is stated that 'Moreover, there is no reason why O.14 may not be employed in an action for a declaration where the case is clear, e.g. a declaration as to proprietary rights or ..."

Analysis of the facts

[19] The defendant's resisting the plaintiff's claim on the basis that as per the defendant's late father's Will in 2004 the property in question has been left for him.

[20] As per the Master's orders the plaintiffs' application to evict the defendant has been dismissed.

[21] As stated in the Carpenters Fiji Ltd –v- Joes Farm Produced (supra) case. For the plaintiff to obtain a summary judgment he has to establish to the satisfaction of court that the defendant has failed to set up a bone fide, credible defence.

[22] Once that is established the onus is on the defendant to show cause on the merits that he has a good defence to the claim.

[23] However in the present case I find that in the affidavit the defendant has filed, there is no denial of the facts deposed by the plaintiff to resist summary judgment.

[24] The plaintiff has submitted the Certificate of Title which depicts how the land in question has come to him. The title also substantiates his claim that the land is mortgaged to the Westpac Bank. During the submissions it was conceded that the defendant has not obtained probate pertaining to his late father's Will, in any event it was submitted that the property has been transferred to the defendant's brother before the father died and thereafter the brother had transferred the property to Samila Wati another sibling who then sold it to the plaintiff. The defendant conceded that he had not filed any action against the siblings.

[25] The court observes that the defendant has failed to file any action against the said beneficiaries or against the previous owners Rakesh Chand and Samila Wati. There is no allegation of fraud against any of these transactions. The defendant had tried to lodge a caveat against Samila Wati but it has been refused as at the time it was lodged, the title had changed from Samila Wati. The defendant alleged that there was an irregularity in registering as when he lodged the caveat, the title register had not shown any disposition to plaintiff from Samila Wati.

[26] The plaintiff has explained this allegation and submitted that when documents are submitted to the registry it takes time to register and submitted to court that as per the documents submitted the copy page will have the land registry seal and it shows when a document has been lodged. As per annexure B of plaintiffs' affidavit the mortgage has been lodged on 6.12.11 at 2.49 pm. The transfer too has the same seal. In the light of this submission the defendant's assertion that the transfer had not taken place by 6.12.11 fails and the court is inclined to accept the plaintiff's explanation. The plaintiff also submitted that when this matter was heard before the Master this had not been submitted to court.

[27] As per the extracts of the title, the plaintiff has established that he had purchased the land from Samila Wati, who was the owner of the land. The only way a party can see whether a land is subject to any encumbrance is by performing a search on the title. The plaintiff submits that they have done such a search and since the plaintiff's predecessor's title was clear and registered, as a bona fide purchaser they have purchased the land. As per the Torrens system once a property is registered the purchaser gets indefeasible title. Accordingly the plaintiff's predecessor has got the title which had not been challenged and the plaintiff too has got the title. As per the Land Transfer Act S38 – 40 once a title is registered unless it's challenged on the grounds stated there-in the title holder gets indefeasible title. In the decided case Fels –v- Knowles 26 N.Z.L.R. 608. The court observed:-

"The cardinal principle of the statute is that the register is everything, and that, except in case 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."

[28] It is also pertinent to note even in these proceedings the defendant has failed to challenge the said title on the basis of fraud. In the absence of any valid challenge, the title remains good and its indefeasibility intact.

[29] The defendant submits that he had lodged a caveat on 9.12.11. At the time he has lodged the caveat there was no registration pertaining to the plaintiff. Accordingly he submits that since the transfer was not shown on the 9th, the plaintiff could not have got the land transferred from Samila Wati on 6.12.11. His proposition is, if that is the case then on 9.12.11 the owner should have been Samila Wati and with the caveat in place the transfer to plaintiff could not have been affected. Also he had obtained the extracts of title on 28.12.11 and on 5.1.12 both documents do not show that there was a transfer on 6th. It is pertinent to note that the title extract obtained on 28.12.11 and 5.1.12 do not reflect a transfer to the plaintiff nor does it reflect the lodging of the caveat by the defendant on 9.12.11.

[30] The plaintiff has explained this situation by stating that they had lodged the transfer on 6.12.11 and also the mortgage, on the same date. As this court had observed earlier the extracts marked "A" by the plaintiff obtained on 29.10.12 reflects the registered title. The plaintiff also draws the attention of court to Annexure B and C in his affidavit which is the transfer and the mortgage. On both documents, in the front there is an endorsement by the land registry that it has been registered on 6.12.11. This is three days before the defendant's alleged lodging of the caveat. It was further submitted that why it was not reflected on the title extract filed by the defendant is, because it takes time for the land registry to register a document. The plaintiff submits that it takes 30 - 90 days from the day of the lodging to register a conveyance on the title. They explained this is why even the defendant's caveat that had been lodged on 9.12.11 is not reflected in the extracts that are submitted by the defendant. Even though taking such a long time for registration to be processed and reflected in the register is not at all satisfactory considering all facts submitted to court I think the explanation of the plaintiff is probable and has satisfied court. As the court has accepted the explanation, the defendant's allegation of an illegality in registration becomes speculation and fails. Also the defendant has failed to contradict or discredit this explanation nor substantiate his allegation by independent evidence.

[31] The defendant has not filed any action challenging the title of the plaintiff nor his predecessor. As stated earlier even in this action the defendant has not challenged the plaintiff's title on fraud. When the court questioned the defendant as to whether he had pleaded fraud in the transaction he submitted that he has not pleaded nor has he submitted any evidence on fraud.

[32] To oppose summary judgment the defendant has to show a case against the plaintiff's case on merits and that he has a good defence.

[33] The defence the defendant has submitted is that as per his father's Will he should have the right to occupy the premises. However the defendant submitted that he was the trustee of the will but he has not taken probate after nearly 10 years of the death of his father. Even though he alleges that the two predecessors in title of the plaintiff have not acted properly he has failed to allege forgery nor has he demonstrated that he has taken any action against this purported fraudulent act. If a person is alleging fraud, a mere allegation of fraud is insufficient. In this instance the defendant has even failed to plead fraud in his opposition, thus he fails to challenge the transactions on fraud. The defendant also has resisted the application for summary judgment on the learned Master's order refusing eviction but the said judgment does not give the defendant any title.

[34] In this application the plaintiff has sought the reliefs on the basis of title. In my view the plaintiff has satisfied the court on this aspect. However the defendant even after the learned Master's determination in 2012 has failed to take any steps to challenge the plaintiff's title, the defendant conceded that he does not pay any city rates or tax on property but occupies the said property. In view of all the facts submitted this court is of the view that the defendant had failed to show cause against the plaintiff's claim on merits or a good and arguable defence.

[35] In considering all the material submitted before this court I am inclined to accept that the plaintiff has succeeded in passing the threshold to obtain summary judgment as per clause I of the summons dated 6.11.14.

[36] As per clause II of the summons the plaintiff has relied on annexure G and annexure H1 to H3 which are the statements from the bank pertaining to the loan settlement. In this the plaintiff has obtained the loan to purchase the property. The plaintiff has to pay the loan installments when they obtain the loan. The plaintiff has failed to establish by affidavit evidence as to how his repayment of the loan interest becomes a loss due to the defendant's occupation of the land. The plaintiff did not make submissions pertaining to clause (ii) of the summons. There was no evidence submitted pertaining to damages. No evidence or submissions made pertaining to the alleged incurred damages or an assessment of damages. There is no independent verification of the alleged damages. There is no sufficient independent evidence submitted to court pertaining to damages. Accordingly I hold the plaintiff has not established by evidence nor satisfied court to obtain the orders sought under clause (ii).

Conclusion

[37] In the final analysis of this action the court finds that the defendant has failed to establish a strong and a probable defence to resist summary judgment. Even though the defendant contended he was the trustee of his father's Will through which he claims title he has failed to establish that he had at least obtained Probate on the Will. Even though he submitted that his siblings had cheated him when the father was alive and got the property transferred from the estate, the defendant has failed to establish that he has taken any action against the siblings nor that the property had been transferred fraudulently out the of estate.

[38] For the reasons stated above the plaintiff has succeeded in establishing his case and satisfying court on evidence to obtain summary judgment pertaining to clause (I) of the summons. Accordingly I order that the defendant do give the plaintiff immediate vacant possession of the premises being Certificate of Title No. 32963 being Lot 12 on DP 8348 situated at Savou Road, Bayview Heights, Suva.

[39] However, the plaintiff has failed to establish or satisfy court pertaining to his claim sought in Clause (ii) of the summons thus the relief is refused.

[40] As the plaintiff has partially succeeded in the application he is entitled to costs. Considering all the facts in the case I award a cost of $750 summarily assessed to the plaintiff.

Mayadunne Corea
JUDGE

30.01.2015