Chand v Kumar [2015] FJHC 703; HBC157.2010 (29 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 157 of 2010

BETWEEN:

Lallu Gopi Chand (f/n Ram Sundar) and Arjun Chand a.k.a Ben Arjun Chand (f/n Lallu Gopi Chand)
Plaintiffs

AND:

Dharam Mati Kumar (f/n Lallu Gopi Chand)
1st Defendant

Registrar of Titles
2nd Defendant

: The Attorney General of Fiji
3rd Defendant

BEFORE : The Hon. Mr Justice David Alfred

Counsel: Mr P Niubalavu (Ms P Preetika with him) for the
Plaintiffs
Mr R P Singh for the First Defendant
Ms R Mani and Ms S Chand for the Second and Third Defendants

Dates of Hearing: 14 May, 15 May, 18 May, 20 May and 10 September, 2015
Date of Judgment: 29 September 2015

JUDGMENT

Introduction

1. This matter came up before me on 19 March 2015, when after hearing

Counsel, I ordered the action be heard de novo by me on 14 and 15 May 2015. I noted from Counsel for the Second and Third Defendants that they were not really concerned with the matter and would await my decision.

Hearing

2. Accordingly, the action came up for hearing before me on 14 May 2015. Counsel for the Second and Third Defendants informed me that as they were acting for nominal Defendants, they would take no part in these proceedings.
   
3. Counsel for the First Defendant and Counsel for the Plaintiffs applied to make minor amendments to correct names of parties etc, to which there were no objections from the opposite side, respectively, and which I allowed.
   
4. I also ruled that any documents to be produced were to be tendered and marked as Exhibits.
   
5. In the hearing witnesses and Counsel mentioned the land, the property and the title interchangeably to refer to the property held under Certificate of Title No.33518 and I have accepted these in my judgment.
   
6. The hearing commenced with Lallu Gopi Chand (1st Plaintiff) (PW1) giving his evidence. In essence he said the following in examination in chief: He owned a piece of land, which he divided into two and gave one piece to his daughter (1st Defendant). Before he did so, she gave him a piece of paper, the contents of which were read to him in Hindustani by his grand-daughter, the daughter of the 1st Defendant. The actual letter was given to him. What he was now producing was a photocopy and not the original. The original he had given to the previous Court. This copy was marked as Document 3, as I ruled it was not an Exhibit but only an ID. He had many meetings as she was his daughter. He had wanted to give the land to his son Arjun (the 2nd Plaintiff), because he, Arjun had built a house on it.
   
7. After looking at the letter, PW1 believed it and transferred the land to his daughter. He told a lawyer, Mr Maharaj, at the lawyer's office, to transfer the land to the (1st Defendant). He did not file any case. It was Arjun the 2nd Plaintiff who had filed a case.
   
8. The relevant documents were tendered and marked as Exhibits, as Counsel for the 1st Defendant had no objection. Exhibit P1 is the partial transfer, Exhibit P2 is the Certificate of Title No. 33518, and Exhibit P4 is the plan (2 pages).
   
9. PW1 referred to Exhibit P4 and said that because Arjun built the cement house on Title No. 33518, PW1's final word is he wants the house on the said title to be given to Arjun.
   
10. Under cross-examination, PW1 said that after looking at the letter, the lawyer did the transfer of the property to the daughter's name, as instructed by him (PW1). He could not remember whether the signatures on Exhibits P4 and P1 were his. The date of the transfer was 5 March 2001 and this action had been filed in 2010 by Arjun. He asked why he should give it to the 1st Defendant when he has so many daughters and the land is worth $150,000.00. Because the other daughters are staying on their own there was no need to take the matter to lawyers.
    
11. The second witness for the Plaintiffs was Joseph Birchand (PW2). He is the eldest son of the 1st Plaintiff. He said he was not aware of what transpired between father, brother and sister. He was not aware how the transfer took place.
    
12. The next witness was the 2nd Plaintiff, Arjun Chan, (PW3). He said Exhibit P4 is the title of his property. In 1994, he moved out of this house because he had marital problems with his wife and went to rent a house somewhere else. Later he returned and started renovating the house which he completed in 2008. He needed the title to obtain a loan from the Fiji National Provident Fund but the 1st Defendant never gave it to him. He approached his father who told him that he (2nd Plaintiff) had already given the title to the 1st Defendant, because he said that he (2nd Plaintiff) had written a letter to him.
    
13. PW3 went to the title office in 2007 and they gave him a copy of the title for his property on which was written the 1st Defendant's name. He showed this to her and she said she would transfer the title back to him but she did not although he repeatedly asked her from 2007 to 2009. At the beginning of 2009 he lodged a report at the Lami Police Station. When asked by the Court, he answered there was no outcome to the police investigation.
    
14. PW3 now wanted to tender a copy of the letter, the original of which he said was with the (his) Counsel. Counsel for the 1st Defendant objected to this being produced as an Exhibit. PW3 said the copy of the letter in his hand is the actual copy he received from his father. He did not know anything about the original of the letter. The signature on it looks like his signature but he did not know who wrote it.
    
15. At this juncture, Counsel for the Plaintiffs, Mr Niubalavu informed the Court that they were not pursuing the letter any further as they did not have the original.
    
16. PW3 continued by saying that when he came to know that the title was in the name of (the 1st Defendant) he stopped paying the town rates. He wanted to tell the Court that as the town rates were under the 1st Defendant's name she has to pay the town rates. If it is in his name then he would pay.
    
17. Under cross examination, PW3 said his father had not given him anything in writing and his father had not broken the promise. He had not brought any action against the father. From 1994 to 2002, he was not in that house. In 2002 he started to renovate the house and the 1st Defendant allowed him to stay there because, according to him, she told him she could not pay for the security. She gave him notice to vacate through the security company, but he did not vacate.
    
18. In re-examination PW3 said his father told him to build the house but he could not sue him. They had a father and son relationship.
    
19. With this the Plaintiffs closed their case.
    
20. The 1st Defendant's sole witness was herself (DW1). She said the 1st Plaintiff is her father and he signed the transfer (Exhibit P1) to her name. The solicitors prepared the transfer. She said no letter was given to the lawyer before the transfer. The 2nd Plaintiff was staying on the property before he moved out to a rented house in Samabula.
    
21. He moved out because he had a problem with his wife as he had a de facto wife No. 2. His legal wife continued to stay there with her 3 children. Later she remarried and went to America. Her eldest son stayed on and damaged the house. The police told him to vacate the house as the house belonged to (1st Defendant). After he (son) vacated, the 2nd Plaintiff came back. She (DW1) told him to repair the house, to pay the town rates and to pay the rent to her. The title was transferred to her in 2001 and it was now 14 years on. The 2nd Plaintiff asked her to transfer the title to his name, but she said no. He mentioned to her that their father had told him that he was going to give it to him. All she knew was that their father gave it to her, and he did not say give it to him (2nd Plaintiff). Their father had never mentioned anything about a letter and she did not have any idea about the letter at all. She is the owner of the land and she wanted it back and have counter claimed for it. She had not committed any act of fraud.
    
22. Under cross examination, DW1 said that this was the only property she has, which is the one given to her by her father. She was not aware of her father's intention to transfer the land to the 2nd Plaintiff. Her father instructed the lawyer. She was aware of her father's intention to give it to her. When he became aware of the 2nd Plaintiff's character in changing partners he (father) transferred the land to her. She said her father and Joseph (PW2) had not told the truth in Court. She denied she asked her father to transfer the land to her. She denied her father asked her to get a letter from the 2nd Plaintiff to transfer the land to her. She denied she came back to her father with a letter allegedly signed by the 2nd Defendant. She denied that the land was transferred to her because she convinced her father to do so. She had asked the 2nd Plaintiff to fix the house but he was not the owner of it.
    
23. In re-examination DW1 said her response is she will not give the land back to the 2nd Plaintiff. No police came to see her. With that the Defendant closed her case.
    

Submissions

24. I then ordered both Counsel to put in their written submissions in accordance with the time lines that I had set. After the written submissions had been filed, I heard both Counsels' oral submissions in Court on 10 September 2015.
    
25. Plaintiffs' Counsel submitted there was fraud on the part of the 1st Defendant and fraud was the exception to the Torrens System of registration. The evidence of the Plaintiffs' witnesses showed moral turpitude on the part of the 1st Defendant. The note was not tendered due to the objection, but the Court could take it into consideration in reaching its conclusion. The 1st Defendant's counter claim should be struck out with costs.
    
26. Counsel for the 1st Defendant submitted there was no allegation of fraud in the transfer itself, from the 1st Plaintiff to the 1st Defendant which was witnessed by the solicitor. The gift was completed. The 2nd Plaintiff never produced anything in writing to show he had a valid interest in the land. Section 59 of the Indemnity. Guarantee and Bailment Act 1978 applied. The 1st Plaintiff was not asking for the land back. Section 40 of the Land Transfer Act does not help the Plaintiff. He did not go to the son (PW3) to question whether it was o.k to give the land to the 1st Defendant although the son was nearby. The father has nothing in writing and no equitable interest in the land.
    
27. Regarding the Counter Claim, Counsel wanted to amend the title number as this would not prejudice the Plaintiffs, but Plaintiffs' Counsel stated she would object.
    
28. I therefore directed both Counsel to provide the authorities for their respective stands. I then reserved my judgment to a date to be fixed.
    
29. In the course of reaching my judgment I have perused the following:
    
    1. Bundle of Pleadings.
    2. Plaintiffs' Bundle of Documents
    3. Plaintiffs' Supplementary Bundle of Documents
    4. Plaintiffs' Closing Submission.
    5. Plaintiffs' Bundle of Authorities.
    6. 1st Defendant's Submission.
    7. Authorities submitted by 1st Defendant.
       
30. I now proceed to deliver my judgment. A perusal of the Pre-Trial Conference Minutes (Minutes) reveal inter alia, the following Agreed Facts:
    
    • (1) The 1st Plaintiff is the registered proprietor of land held under Certificate of Title No. 33519 Lot 1, and the 2nd Plaintiff is his biological son.
      
    • (2) The 1st Defendant is the daughter of the 1st Plaintiff and the biological sister of the 2nd Plaintiff and she is the registered proprietor of land held under Certificate of Title No. 33518 Lot 2.
      
31. The Minutes also show, that the Issues for Determination, are inter alia:
    
    • (1) Whether the 1st Plaintiff had initially intended to transfer the said property to the 2nd Plaintiff.
      
    • (2) Whether the said property was given as a gift to the 1st Defendant by the 1st Plaintiff.
      
    • (3) Whether the 1st Defendant fraudulently presented to the 1st Plaintiff a letter showing a signature similar to that of the 2nd Plaintiff.
      

(7) Whether the 2nd Plaintiff has any right to remain on the land and whether he should give possession of the land to the Defendant. (I take it, that it is the 1st Defendant who is being referred to and not the 2nd or 3rd Defendants).

Issues

32. I have carefully read the written submissions for the Plaintiffs and for the 1st Defendant. Both Counsel are at one in stating that there are two issues for me to decide.
    

A. Whether the Plaintiffs have proven fraud on the part of the 1st Defendant.

B. Whether the 1st Defendant has proved her Counter Claim and is entitled to the order sought.

33. The above, then, are the real issues for me to decide after a somewhat protracted hearing.
    

Issue A

34. I note that on 15 May 2015, the Plaintiffs' Counsel, Mr Niubalavu informed the Court that they were not pursuing the letter any further as they did not have the original. This means, to my mind, that the substratum of any claim of fraud is now non-existent. In other words, the claim of fraud is now suppositious meaning according to the Thesaurus, it is based primarily on surmise rather than adequate evidence, and according to the Oxford Dictionary, it is based on assumption rather than fact.
    
35. Therefore any attempt by the Plaintiffs to show fraud has to be based on the evidence given at the hearing. This is acknowledged by Plaintiffs' Solicitors in paragraph 5 of their written submission.
    
36. However there is a variance between Counsels' views regarding the standard of proof here, with Plaintiffs saying the standard is the balance of probabilities and 1st Defendant saying it is beyond reasonable doubt. I will consider this now.
    
37. The starting point is the decision of Denning J, as he then was in: Miller v. Minister of Pensions [1947] 2 All E.R 374. He said that to discharge the burden in a civil case, the degree of cogency of evidence must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that a tribunal can say it is more probable than not, the burden is discharged but if the probabilities are equal, it is not.
    
38. There was for a long time some confusion as to whether, in a civil case where fraud was alleged, there was a higher standard than that which obtained in any other civil case.
    
39. The confusion has now been dispelled in the United Kingdom by the decision of the Supreme Court in Re: S.B Children [2009] UKSC 17 where it held that the time had come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.
    
40. In Malaysia, the highest court, the Federal Court has made the position even clearer so that it is in tandem with other Commonwealth common law jurisdictions like Canada and Australia. This is by its decision in Federal Court Civil Appeal No. 02(F) 72-10/2013 (A) Between Sinnaiyah & Sons Sdn Bhd... Appellant AND Damai Setia Sdn Bhd ... Respondent.
    
41. In the decision of the Court delivered on 10 August 2015, Richard Malanjum, Chief Judge Sabah and Sarawak said in para 52 on page 30 that in a civil claim even when fraud is alleged the civil standard of proof, that is, on the balance of probabilities, should apply.
    
42. In accepting these persuasive judgments, I hold that in Fiji, an allegation of fraud in a civil claim has to be proved, according to the civil standard, on a balance of probabilities.
    
43. So I turn now to consider the evidence that the Plaintiffs rely on to prove the alleged fraud, which evidence I find is spotty. This is because the 1st Plaintiff testified that the grand-daughter read the contents of the letter in Hindustani to him. Later he said, 3 times, in his evidence that "after looking at the letter" he believed it and asked a lawyer, Mr Maharaj to transfer the land to his daughter's name. All this suggests that the letter may have been in Hindustani and not English because there is no mention that he required his grand-daughter to translate it from English into Hindustani and even in her absence he was able to look at it and make a decision and give instructions.
    
44. Even if one looks at this letter, item 3 in the Plaintiffs' Bundle of Documents, it is the most scanty and ambiguous of documents. It does not state the particulars of the property. It merely says (2nd Plaintiff) is "giving lot" to the (1st Defendant). Obviously it cannot be relating to the property concerned because that never belonged to him (2nd Plaintiff). Moreover it is in English which it is pleaded the 1st Plaintiff does not read or understand.
    
45. If this was the letter that was supposed to have deceived the father into giving the land to the daughter, all I can say is it would not have fooled anyone least of all a legal practitioner, for if it had been shown to Mr Maharaj he would certainly have questioned, as to which land it referred to. And yet PW1 said in his evidence "The lawyer never asked me any questions".
    
46. Para 7 of the Statement of Claim avers the 1st Plaintiff advised the 1st Defendant of his intention to transfer the land to the 2nd Plaintiff and in the event the 2nd Plaintiff intended to waive his interests in the property then he was to state this in writing. The plain grammatical meaning of the above words is the 1st Plaintiff is asking the 1st Defendant to get such a letter from the 2nd Plaintiff otherwise why should para 8 aver the 1st Defendant presented such a letter to the 1st Plaintiff. But this is flatly contradicted by the evidence of the 1st Plaintiff himself when he says "I never asked my daughter to bring a letter."
    
47. The lawyer, Mr Maharaj, whom the 1st Plaintiff testified he had instructed to prepare the land transfer concerned, was never called to testify for the Plaintiffs. Surely if they desired to impugn the transfer on the ground of fraud (the only ground under the Torrens system that could defeat the title) he would be the best witness to aid their cause. He could confirm whether a letter was shown to him, whether it was in Hindustani or in English, and what its contents were.
    

48. Even more adverse to the Plaintiffs' case is the evidence of the 1st Plaintiff that he did not file any case. It was Arjun (2nd Plaintiff) who filed a case. This would clearly show the 1st Plaintiff had no quarrel with the 1st Defendant, which on the balance of probabilities would be evidence negating any fraud perpetrated on him by the 1st Defendant.

49. Then, we have the evidence of the 2nd Plaintiff himself. What is really telling is his testimony that when he came to know the title was in the 1st Defendant's name, he stopped paying the town rates. He said and I quote "I want to tell the court that as town rates under 1st Defendant's name she has to pay the town rates. If it were under my name then I would pay". This was said in examination in chief, when he was examined by his own Counsel, which is when a party normally makes his case.
    
50. During cross-examination the 2nd Plaintiff said his father had not given him anything in writing. His father had not broken his promise. He had not brought any action against his father. The 1st Defendant opened the house to him. She allowed him to stay in the house.
    
51. My conclusion has to be that all this evidence from the 2nd Plaintiff coupled with the fact that he is saying all this (in 2015) about a land transferred in 2001 is the evidence of a person who has accepted as a fait accompli the transfer of the land by his father freely and properly to his sister, and is now much later in time attempting to set it aside.
    
52. Finally, I note that the 2nd Plaintiff, has not produced any document in writing as required by Section 59 of the Indemnity, Guarantee and Bailment Act 1978 to substantiate his claim to the property. Section 59 states no action shall be brought upon any contract or sale of lands or any interest in them, unless the agreement upon which such action is brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith.
    

53. The authorities cited by Plaintiffs' Solicitors have been perused by me but do not help the Plaintiffs' case, as their factual and legal situations differ from the facts of the instant case. The only case relevant, and which supports the 1st Defendant's case is Prasad v Mohammed.

54. Having heard and seen the witnesses in the witness box and observed their demeanour in court and having reviewed the totality of the evidence, I find and I so hold that the Plaintiffs have not satisfied me, on a balance of probabilities that a fraud was carried out by the 1st Defendant on the Plaintiffs.

55. On the contrary, I am satisfied that the 1st Plaintiff freely and voluntarily transferred the property to the 1st Defendant. I therefore find and so hold that there is no basis for me to order the 1st Defendant to transfer the property to the 2nd Plaintiff. His prayer is defective because the property had never been the 2nd Plaintiff's in the first place or at all, and the 1st Plaintiff is not asking for the transfer of the land from himself to the 1st Defendant to be set aside and cancelled.

Judgment on Claim
56. I therefore dismiss the Plaintiffs' claim against the 1st Defendant with costs which I summarily assess at $2,500.00 and which I order is to be paid by the 2nd Plaintiff only to the 1st Defendant only.

57. I make no order with regard to the 2nd and 3rd Defendants. They are nominal Defendants who took no part in the proceedings but would abide by the decision of the Court.
    

Issue B

58. I allow the 1st Defendant's Application to amend the title concerned which she

may do under Order 20 rule 5 of the Rules of the High Court. In doing so, I follow the decision of Goudie J in the Supreme Court of Fiji in: Fiji Electricity Authority v Balram & Others, delivered on 3 March 1972. The judge cited several English authorities and said an amendment to pleadings may be permitted by the court at any stage of the proceedings even after the trial for the purpose of determining the real question in controversy and, if it can be made without injustice to the other side should be allowed however late, and however negligent or careless may have been the first omission.

59. The Plaintiffs and their Counsel know full well what is the title and the land concerned. The title particulars are stated correctly in the Agreed Facts. The land is presently occupied by the 2nd Plaintiff without the licence of the 1st Defendant, its registered owner. There is no prejudice to them by the amendment which is a correction, and any specious objection raised does not sit well with me.
    
60. The 1st Defendant's case is supported by Frazer v Walker and Others [1967] 1 All E.R 648. The Judicial Committee held that registration was effective to vest title in a registered proprietor notwithstanding that he had acquired his interest under an instrument that was void. The appeal against the trial judge's decision to give possession of the farm to the 1st Respondent was dismissed.
    
61. How much stronger is the 1st Defendant's case here than that of the Appellant in "Frazer" whose signature on the mortgage had been forged. This is because in the instant case from start to finish there has been no allegation from either the 1st Plaintiff or the 2nd Plaintiff that the transfer instrument was forged.
    
62. I find that the 2nd Plaintiff failed to vacate the property after the 1st Defendant gave him notice to do so, without making any protest. I follow the decision on 3 June 2005 of the Chief Justice, Gates J as he then was in Rajendra Parasad v Wali Mohammed: HBC 0272 J. 1999L when he found there was no letter in reply from the Defendant when served with the notice to quit, protesting that he (Defendant) was the lawful owner. Gates J therefore held the Defendant had failed to show cause. The Plaintiff's title as registered proprietor is indefeasible and the Plaintiff was entitled to immediate vacant possession.
    
63. I find the 2nd Plaintiff has failed to show cause and failed in his defence. He is occupying the land concerned without the licence of the owner (1st Defendant). I therefore allow the 1st Defendant's counter claim against the 2nd Plaintiff with costs which I summarily assess at $750.00 and to be paid by him to her
    
64. I also order the 2nd Plaintiff to vacate the property held under certificate of title No. 33518, being Lot 2 on deposited plan No. 8410 and deliver vacant possession of it to the 1st Defendant, by or before 13 October 2015.
    
65. For clarity I confirm the total costs to be paid by the 2nd Plaintiff to the 1st Defendant is $3,250.00.
    

Dated this 29th day of September 2015 at Suva.

David Alfred
JUDGE

High Court of Fiji