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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA FIJI
CIVIL CASE NO.:HBC08 OF 2009
BETWEEN:
TAHIR HUSSAIN MUNSHI of 346 Fletcher Road, Vatuwaqa, Suva in the Republic of Fiji and KHAIRUL NISHA BIRIBO of Waimanu Road, Suva in the Republic of Fiji, Retired Civil Servant and Retired Health Sister respectively.
PLAINTIFFS
AND:
ABDUL MUNAF of Gallau, Ra temporarily residing in Munshi Bungalow near Nanuku Sector Office, Rakiraki in the Republic of Fiji.
DEFENDANT
Appearances:
Ms. R. Naidu for the Plaintiffs
Mr. E. Maopa for the Defendant
JUDGMENT
1.0 Introduction
1.1 In these proceedings the Plaintiffs seeks the following reliefs against the Defendant.
- (i) That the Defendant give the Plaintiffs immediate vacant possession of the property comprised in Certificate of Title No. 10318 leaving all the Deceased's belongings.
- (ii) Judgment in the sum of $7000 for monies still owing.
- (iii) General Damages.
- (iv) That the Defendant pay costs of the action.
- (v) Such further and/or other relief as the Court deems just.
2.0 The Statement of Claim
2.1 The Statement of Claim states that the Plaintiffs are the children of the late Munshi and are also executors and trustees of his estate.
2.2 The Plaintiffs are also the registered proprietors of the property comprised and described in Certificate of Title No. 10318 being Lots 1 and 2 on deposited Plan No. 1886 and situated in the District of Rakiraki in the Island of Viti Levu.
2.3 The Defendant is currently occupying the said property unlawfully and is refusing to vacate the same.
2.4 Sometimes in 2003 the Defendant lured the Deceased into signing an agreement dated 19th June, 2003 by showing false kindness and care towards him.
2.5 According to the said agreement the Deceased agreed to transfer the said property to the Defendant for free if the Defendant took care of him as the Deceased was old and sickly.
2.6 The Defendant then got the property transferred into his name and stopped caring for the Deceased.
2.7 The Defendant blatantly breached the said agreement.
Particulars of Breach
(a) The Defendant did not provide food, shelter, travelling and medical expenses to the Deceased and in failing to do so, he breached Clause 2 of the Agreement.
(b) The Defendant did not pay for funeral and other related expenses and therefore he breached Clause 2 of the Agreement.
(c) The Defendant did not pay $70,000 upon failing to fulfil the requirements of Clause 2 of the Agreement and in failing to do so, he breached Clause 3 of the said Agreement.
(d) The Defendant did not return the said land even upon numerous requests, and in failing to do so he breached Clause 3 of the Agreement.
2.8 Towards December 2005, the medical condition of the Deceased deteriorated forcing him to move to his sister's house as he needed care and attention.
2.9 The Deceased has also loaned to the Defendant monies totalling to a sum of $7,000.00.
2.10 The Deceased requested the Defendant to honour the Agreement and return the said property on numerous occasions, but the Defendant did not do so.
2.11 The Deceased then transferred the property to the Plaintiffs by exercising the rights conferred to him through the Power of Attorney No. 42475 which was given by the Defendant to the Deceased for the purpose of transfer back of the property in the event that the Defendant did not comply with his obligations.
3.0 Statement of Defence and Counter Claim
3.1 The Defendantadmits that the Plaintiffs are the registered proprietors of the property comprised and described in Certificate of Title No.10318 but states that the said registration was obtained by fraudulent means.
3.2 The Defendant denies that he is currently occupying the said property unlawfully and that he lured the Deceased into signing an Agreement by showing false kindness and care towards him.
3.3 He admits that the Deceased transferred the subject property to him but denies that he stopped caring for the Deceased.
3.4 The Defendant denies that he blatantly breached the said Agreement as alleged in paragraph 7 of the Statement of Claim.
3.5 He denies that the Deceased moved to his sister's house towards December 2005 due to the deteriorating medical condition and states that the said visit was a social visit only.
3.6 The Defendant also denies receiving any loan from the Deceased as is alleged in paragraph 9 of the Statement of Claim.
3.7 The Defendant denies that the Deceased requested him to honour the Agreement and return the said property on numerous occasions.
3.8 The Defendants states that the property was transferred to the Plaintiffs by fraudulent means and the Power of Attorney given by the Defendant to the Deceased was to unable the Deceased to uplift cane harvest monies on cane produced by the Defendant.
3.9 The Counter Claim
The deceased Munshi transferred Certificate No. 10318 to the Defendant pursuant to an Agreement dated 10th June, 2003. Upon the said transfer the Deceased's Certificate of Title was released to the Defendant and remains in his possession todate.
3.10 In order to unable the said Deceased to uplift cane monies upon cane production by the Defendant in the subject property the Defendant gave a general Power of Attorney to the said Deceased.
3.11 The Defendant has been in occupation and cultivation of the subject property todate; he adhered to the terms and condition of the Agreement and the said Deceased did not at any time raise any issue in relation to the terms and conditions of the said deed.
3.12 On or about the month of October, 2006, the Plaintiffs fraudulently and/or by undue influence and misrepresentation effected a transfer of the said property into their own names.
Particulars of Fraud
(i) The Plaintiffs and the said Deceased filed a false declaration with the Registrar of Titles that the Original Certificate of Title was lost when knowing fully well that the Original Certificate of Title was in the possession of the Defendant.
(ii) The Plaintiffs persuaded the Deceased to sign a transfer unto them when the said Deceased was suffering from fever and had not fully recovered from an attack of cardio respitory failure and thereby unable to appreciate the nature of the documents he was asked to sign.
(iii) The Plaintiffs deliberately prevented the said Deceased from obtaining an independent legal advice on the said transfer.
(iv) The alleged transfer took place on or about the 30th October, 2006 and the said Deceased died on 8th November, 2006 and at the time the said Deceased was suffering from severe illness and unable to appreciate the true nature of the transfer documents.
(v) There has been a total failure of consideration on the part of the Plaintiffs for the said transfer.
(vi) The said transfer and its registration on 4th September, 2007 is irregular and invalid because the transferor was Deceased at the material time and such knowledge was kept hidden from the Registrar of Titles.
(vii) The said transfer is defective because there was a valid Caveat in place namely Caveat No. 266274 and no prescribed step had been taken to have the said Caveat removed.
3.13 The Defendant further pleads that the said Deceased was estopped from dealing with the subject property when there was full compliance by the Defendant on the terms and conditions of the Deed.
3.14 Accordingly the Defendant has prayed that;
- (i) The Plaintiffs claim be dismissed with cost on higher scale.
- (ii) The Transfer dated 30th October, 2006 and registered on 4th September, 2007 be forthwith revoked.
- (iii) The Plaintiffs be restrained whether by themselves, their servants and agents or whomsoever from interfering with the Defendant's peaceful and quite enjoyment of all that piece of property contained within the Certificate of Title No. 10318.
- (iv) That the Plaintiffs pay costs on Solicitor/Client indemnity basis.
4.0 The Reply to Defence and Defence to Counter Claim.
4.1 While the Plaintiffs join issue with the Defendant upon his defence they state that the Deceased had not entered into any Share Farming Agreement with the Defendant at any time.
4.2 In Defence to Counter Claim Plaintiffs state that the Defendant never farmed the land.
4.3 The Plaintiffs seeks that the Counter Claim of the Defendant be dismissed with costs.
5.0 Agreed Facts and Disputed Facts/Issues to be Determined
5.1 In perusing the Pre-Trial Conference Minutes I find the following Agreed facts.
Agreed Facts
5.2 The Issue to be determine are shown as follows;
6.0 The Trial
6.1 At the Trial the Plaintiffs called 5 witnesses:
They were;
PW1 - Ashwin Chandra Gounder (Farmer)
PW2 - Usman Ali (FSC Labourer)
PW3 - Jairul Nisha (One of the daughters of Deceased Munshi)
PW4 - Shafiq (School Teacher)
PW5 - Mrs Biribo (Second- Named Plaintiff; one of the daughters of
Deceased Munshi)
6.2 The Defendant called the following witnesses.
DW1 - Yunus Adam Patel (Religious Teacher)
DW2 - Eroni Naivalu (Fisherman)
DW3 - Isia Kabu (Farmer)
DW4 - Abdul Rauf (Father of the Defendant)
DW5 - Abdul Munaf (The Defendant)
7.0 Evidence of the Plaintiffs Witnesses.
Evidence of the Plaintiffs witnesses are summarized as follows:
7.1 PW1-Ashwin Chandra Gounder.
(i) He is a farmer and knew late Mr Munshi for a very long time. He was doing share farming with Munshi for 3 years (2004 to 2006). They were neighbours and he used to give him food in the afternoons; take him to hospital when he was sick. Mr Munshi was related to his grandparents and his elder brother used to sleep with him in his home. When brother migrated he started sleeping with Mr Munshi for the past 15 years.
(ii) The money from farming was divided into half for him and Munshi and Munshi dealt with FSC and all other issues,
(iii) One day Mr Munshi asked Ashwin to arrange a taxi for him to go to Suva. Ashwin arranged a Taxi and Mr Munshi went to Suva; paid his own Taxi fare. The witness said he saw Mr Munshi for the last time in Suva when he was admitted in CWM Hospital.
(iv) After 40 days of the death of Munshi, Defendant, his father came in a truck and loaded 40 bags of fertilizer and took two plough that Ashwin was keeping in his bulk house. Defendant is now living in the said property. Before moving into the said property Defendant was living in Gallau, Rakiraki.
(v) In cross-examination the Witness confirmed that he was into share-farming from 2004 to 2006 and it was a verbal agreement. He was 23 years of age in 2003 and 24 in 2004 and it's a one minute walking distance from his house to Munshi's house.
(vi) It was put to him that at that tender age he was not living there he replied that he went to sleep there with Munshi at night.
(vii) When he was asked if he got cane cutters to work on the farm for Munshi he said that he used his own labourers from his farm.
(viii) The witness said that he did not see Munaf coming to see Mr Munshi. He agreed that Munshi's wife and children used to come and visit him and stayed for 2 – 3 days at times. He said he was sure they came, as they used to come to his house too whenever they come to visit Munshi.
7.2 PW2 - Usman Ali
(i) PW2 stated that Mr Munshi was his Uncle and the Plaintiffs and Defendant are his cousins. He said Mr Munshi's house was 100 metres away from his home and he was born and grew in Nanuku. He also looked after Mr Munshi. Sometimes he used to take Munshi to the hospital and Ashwin was also taking him to the hospital.
(ii) He said Munshi 's children live abroad and in Suva and they visited Munshi in school holidays. He further stated that all the children helped to renovate Munshi's house and the renovation was done by Lateef one of the sons of Munshi and Bob (1st named Plaintiff) built the toilet. He said that all the children were very close to Munshi and Munshi used to go to Suva to visit his son and daughters and wife.
(iii) According to the witness last time he saw Munshi was one week before his death in Suva and he was with him whole night in hospital. He said Munshi's children were there to see Munshi.
(iv) The witness said he also used to cook with Ashwin but at times he cooked for Munshi. He confirms that Ashwin (PW1) was sleeping with Munshi in his house.
(v) PW2 said further that Munshi was working on his farm with his labourers before he went into share-farming with PW1 Ashwin.
(vi) According to PW2 Munaf took Munshi's house keys after Munshi's death and shifted into the house, before that Munaf was living in Gallau as he has a house there. PW2 said he does not recall anyone else visiting Munshi apart from his family.
(vii) In cross-examination PW2 confirmed that in 2003 Ashwin Goundar (PW1) was doing share-farming with Munshi. He agreed that Munshi normally did his own cooking but also Ashwin did his cooking. He said he used to go and visit Munshi in the afternoon and he saw Munshi go to Ashwin's house to eat and then come back to sleep in his house. He was asked if he could recall which year he is talking about and he said it was 2002, 2003, 2004, 2005 all these years.
(viii) PW2 said further that he visited Munshi in hospital in Suva one week before his death and he spent a night with Munshi in the hospital. He confirmed that Munshi's condition was good and he talked with Munshi too.
7.3 PW3 – Jairul Nisha
(i) PW3 stated in Examination in chief that she is a daughter of Munshi and sister of the Plaintiffs and she is staying in Suva.
(ii) She said Munshi was cooking with the assistance of Ashwin, who was sleeping with him and that Usman Ali (PW2) also used to help and look after Mr Munshi when he was sick.
(iii) Witness testified that she always used to visit Munshi during school holidays with her family from Suva and the last trip she made was in December 2005. She said whenever they came to visit her father, Ashwin and his family always come over to visit and see them. She stated further that her father was a smoker and he had breathing problems but it was not a permanent problem. He used to get attack sometimes.
(iv) She revealed that there was a celebration at his sisters and Doctor Biribo's house in Suva in June, 2006 and her father hired a taxi and came to Suva; at this time he used to get sick more frequently and he always preferred to live with his sister at her home whenever he come to Suva since her husband was a Doctor. She said her father lived with her sister from June 2006 until time of his death.
(v) The witness recalls her father was upset when he was in Suva in June 2006 due to some conditional agreement that he had entered into with Munaf which Munaf had not obliged.
(vi) In cross-examination PW3 was asked if Munshi in one of her visits say that he has transferred the property to Munaf and she said he did not know until he relayed the story to them in Suva.
(vii) She said further that her father had on-off breathing problems so he did go to the Rakiraki hospital as well. In Suva he was going back and forth to the hospital, he was not admitted that long as he was comfortable with her brother in law (Doctor Biribo) to look after him.
(viii) When it was put to her that Mr Munshi did not want to stay in Suva with his son Thahir or with his daughters Kairul, so he wanted to come back to Rakiraki she denied it. She said he wanted to go back to Rakiraki because of his attachment to his property and home.
7.4 PW4 – Shafiq
(i) PW4 said in examination in chief that Plaintiffs are his Uncles' children and the Defendant is his first coursin. He confirmed that Mr Munshi was living in Nanuku on his own.
(ii) He said Ashwin was giving food to Munshi and Munshi was working in his farm; Ashwin his neighbour was also helping Munshi on the farm.
(iii) In cross-examination he confirmed that Munshi's children were visiting him in Nanuku.
(iv) He confirmed that he did sit and talk to Munshi in 3 – 4 weeks and Ashwin was not there everytime he went. He said he never saw Ashwin on the farm as he always went to visit Munshi in the afternoon after 5.00pm.
7.5 PW5 – Mrs Biribo (Second-named Plaintiff)
(i) PW5 said that she is the second-named Plaintiff and she is giving evidence on her behalf as well as on behalf of her brother, who due to medical condition cannot be present in Court. She said the Defendant is her first cousin.
(ii) She stated further that during school breaks all children and siblings used to visit her father MrMunshi in Rakiraki and that her brother in Suva frequently brought their mother in his vehicle to visit the father.
(iii) She said her father was well and able until 2002 when he got his first episodes. According toPW5 her father suffered from COPD (Chronic Obstructive Pulmonary Disease) for which he was taking medication to ease his breathing; they used to buy his medication from Suva and also from overseas. She said in 2002 her father suffered severe episodes of COPDs; Usman and Ashwin has taken him to Ra Hospital. She also said by 2005 he had been to Suva a few times for his regular clinics; he comes to Suva in a cab, her brother Thahir used to take him back to Rakiraki when he was ready to go to Nanuku.
(iv) It was stated by PW5 that her father could not work on the farm from 2005 and he came in to Suva in June/July 2006 to attend a wedding. It was revealed by her that he was upset over some phone call received by him from the Defendant's mother. She said she could hear the exchange between them.
(v) In cross-examination she confirmed her father had been having COPD since 2002. When she was shown a copy of the letter dated 28th December 2006 (D6) giving list of dates of previous admissions of Munshi's from the Ra Hospital she agreed that her father was looked after by his sister (Defendant's mother).
(vi) She also stated that Munshi came to Suva to attend the wedding of her nephew and a Will was done on 28th July, 2006 appointing son Thahir and daughter Khairul as Trustees (Exhibit P1).
(vii) She was referred to Exhibit P5 (Transfer) and asked if it was Munshi's signature and she said yes, it was and dated 31st October, 2006. She agreed it would be a week before Munshi's death. She also agreed that the Transfer was registered some 10 months after her father's death.
(viii) Exhibit P6, the request for Provisional Title was referred to her and she confirmed it was signed by her father, registered on 28th September, 2006. She said the declaration on the overleaf was also signed by him.
(ix) She denied that his father knew the Title was with Defendant at the time of making the declaration for Provisional Title and said she does not know if the declaration was done before the applications were advertised.
(x) When P2, declaration of Munshi was referred to her she said she had typed it and the Solicitor who witnessed it came to their home.
(xi) She said further that her father told her about giving $7,000.00 to the Defendant after breaking a fixed deposit as the Defendant wanted to buy a van.
8. Evidence of the Defendants – Evidence of the Defendants Witness are summarized as follows:
8.1 DW1 – Yunus Adam Patel
(i) He confirmed that he signed an Affidavit 14th November, 2014. It was marked Exhibit D1. When a copy of the Affidavit was shown to him, he confirmed it was his signature and the contents of the Affidavit were true.
(ii) In cross-examination when he was referred to paragraph 3 of his Affidavits and asked when did Munaf take Munshi to his place DW1 said when he goes to Munaf's place he could see Munshi. He said later that it was during functions he used to go to Munaf's place; about 3 to 4 times in a year.
(iii) He also said that Munshi was treated by them how a sick person will be treated. He clarified what he meant "by them" is Munaf (the Defendant) his mother, father and family.
(iv) He said he used to ask Munaf and his father about Munshi when they met at the Mosque and they used to tell him about Munshi. He agreed that everything he is saying is what Munaf and his father told him and all these things were told at the Mosque.
8.2 DW2 – Eroni Naivalu
(i) DW2 stated that he recalls on 14th November, 2014 he signed an Affidavit and he confirmed the contents to be true when it was shown to him. He said he has known Munshi from olden days and that he lived in Vunitogoloa Village which is not very far from Munshi's place. Copy of his Affidavit was marked as Exhibit D2.
(ii) In cross-examination he admitted Munshi was alone working on the farm When he was referred to paragraph 4 of his Affidavit and asked who informed after Munshi's death that he got very sick and went to stay with the Defendant,the Witness responded that it was the Defendant who informed him. When it was put to him what was told by the relatives was about all he has put in the Affidavit he said "yes".
8.3 DW3 – Isaia Kabu
(i) DW3 said he knew Mr Munshi since childhood and his home to Mr Munshi's was the same distance from the Court House to Lautoka Hospital. When copy of the Affidavit D3 was shown to him he confirmed it was his signature and the contents were true.
(ii) Referring to paragraph 4 of his Affidavit when he was asked in cross-examination why did he ask Munshi about his property he said he only asked Munshi because he was staying alone. When he was asked when did Munshi tell him he will transfer property to Munaf, he said maybe in 2002.
(iii) He also revealed in cross-examination that he has known Munaf since he was a Taxi Driver and Munaf lives next to him in Nanuku in the same village.
(iv) He also revealed that Munaf used to take Munshi to the hospital and that he has seen him taking Munshi to hospital.
(v) He was asked whether he could see this from his house and he said "No". When asked how did he know, he said Munaf used to tell him when he goes to town.
8.4 DW4 – Abdul Rauf
(i) DW4 said he is 80 years old and a farmer residing in Gallau, Rakiraki and he knows Thahir Hussein Munshi (1st named Plaintiff) as he is his brother-in law's son. He also said he knows Khairul Nisha Biribo (2nd named Plaintiff) as she is his brother in law's daughter.
(ii) When he was shown a copy of his Affidavit he confirmed it was his signature and the contents were true. It was marked in evidence as D4.
(iii) Referring to paragraph 9 of the Affidavitwhen the DW4 was asked how did he know Munshi loved Munaf he responded that Munaf was the one who used to take him to the hospital so he liked him.
(iv) When he was asked when Munshi moved to Suva he said it was in 2006 and the reason he moved to Suva was to attend his grandson's wedding. When he was asked since Munshi was in Suva, if Munshi called him he said 'No". He was asked if Thahir called him he said "No". When he was asked whether Khairul called him he said "No". When asked how he came to know Munshi died he said Thahir called but before his death they did not call him.
(v) When DW4 was asked that once Munshi was discharged, where did he go and he replied "to my place and Munaf's place".
(vi) In cross-examination DW4 was asked whose place did Munshi live in when they brought him in 2003, he said he lived in his place. When asked who all were living in his place with him witness said it's him and his wife. When it was put to him if his elder son and daughter in law also live with him and he replied "Yes". When it was suggested to him if he would agree that his other sons and daughters in law looked after Munshi he admitted it and said his wife, himself and Munaf too looked after him. He admitted that Munaf and he live separately.
(vii) When he was referred to Paragraph 7 of his Affidavit and asked who all in his family looked after Munshi, he replied it was his wife, himself and Munaf. When asked how did he look after Munshi, he said by giving him food, medicine, etc. It was revealed in cross-examination that he and his wife used to give "asthma tablets" to Munshi three times a day. He said Munaf used to pay for Munshi's expenses and hospital." He also said that Munshi was living in his home for about 3 – 4 years 2003, 2004, 2005,2006. Answering further to questions put to him he said sometimes Munshi used to live at Nanuku and sometimes with them.
(viii) WhenDW4 was referred to paragraph 11 of his Affidavit and asked which funeral expenses Munaf took care of Munshis', he said he cannot recall. He was asked how does he know that Munaf took care of the funeral expenses, he replied he does not know.
8.5 DW5 – Abdul Munaf (Defendant)
(i) DW5 recalled signing an Affidavit on 14th November, 2014. He confirmed his signature and marked the Affidavit as D5 confirming the contents of it to be true.
(ii) When he was referred to Paragraph 10 of his Affidavit which states that he and his family was looking after Munshi, and asked which 5 years he was referring to, he said from 2002 till 2006.
(iii) When paragraph 14 of the Affidavit was referred to him and asked what kind of care his mother gave to his uncle, he said that she was giving him food, let him have his shower and give medicine. In answer to examination in chief he said further his uncle goes to the washroom he gets breathing problems so they would take the nebulizer to him, and when he was sick used to take him to hospital in his taxi. He also revealed in evidence that he arranged a taxi for his uncle to go to Suva to attend a wedding and his father paid the taxi fare of $100.00.
(iv) He also said that he went with his father and mother to see his uncle in Suva when the 1st named Plaintiff called and told his father that his uncle was admitted to hospital.
(v) Referring to paragraph 22 of his Affidavit the Defendant said he requested Ashwin to do farming from the time his uncle transferred the land to him. He said the cane contract was transferred to him after the property was transferred to him in 2003 and till June 2006 he was giving all the money he received from farming to his uncle. He stated further that his uncle was sick and needed the money to buy medicine and uncle bought things on his own.
(vi) He said further in evidence that he came to know the property was transferred to the Plaintiffs when he received a letter from Sherani and after his Counsel Mr Shah did a search and told him about it.
(vii) He also stated that when his uncle transferred the property he was not that sick, he was well and his uncle never asked to return the property. He said one week before Munshi died, 1st named Plaintiff called them and said father was very sick and unconscious and then they saw him about 8 days before in CWM Hospital.
(viii) When Exhibit P6, the request for Provisional Title was shown to him he said it was not his uncle's signature and not his handwriting as he was familiar with Munshi's handwriting. When asked if the Certificate of Title was lost, he said no, it was with him as he was the owner of the property. Original Copy of Title was marked as Exhibit D7.
(ix) He said he did a Power of Attorney for his uncle Munshi to uplift the cane proceeds. When he was asked why he did not give a special Power of Attorney for that purpose Defendant said he trusted the deceased and if he had known the deceased would transfer the property he would not have given it.
(x) When the Defendant was asked in cross-examination whether he knows Munshis' children from overseas visited Munshi or called Munshi he said No. It was put to him that he would not know who called and when since he was living in Gallau and Munshi was living alone in Nanuku, he admitted he was living in Gallau.
(xi) When the Defendant was asked who bought the medicines for his uncle he said he did, from the pharmacy with prescriptions but he failed to give the name of any medications.He denied that his uncles' children bought medicine or sent medicine to uncle. He agreed that his mother was taking care of his uncle. When he was asked what form of medical assistance he provided to Munshi the Defendant said giving tablets, bring nebulizer from pharmacy, sometimes from hospital. When he was asked when he bought from the pharmacy what was the price, he replied he gets medicine mostly from the hospital and it's free.
(xii) When he was referred to paragraph 18 of his Affidavit and asked who went to Suva to visit Munshi; he said it was himself, his mother and father and also that Thahir (1st named Plaintiff) called and told them about Munshi being admitted to hospital.
(xiii) When he was asked why he requested only Ashwin to do farming and not anyone else, he replied that Ashwin was living there and it was only from 2003. He was asked if he had any evidence to confirm the arrangement with Ashwin he said he did not. He denied any share farming arrangement between Ashwin and Munshi.
(xiv) Paragraph 23 of his Affidavit was referred to him and he was asked if he did not see the advertisement in the news papers about the lost title, he said they do not live in the city and it is not easy to have access to newspapers. He was then asked how does he get passengers to drive a taxi, he said there are shops in Wairuku.
(xv) He was aksed if he made any attempts to talk to Khairul and Thahir during the funeral of Munshi; he said No. He agreed that he did not go to the house at the time of the funeral.
(xvi) Though he has said in examination in chief that when Munshi transferred the property he was "not that sick" he agreed that in his own Affidavit he has said that from 2003 Munshi's health condition worsened. He admitted that hospital records D6 only talks about "admission dates" and not check-ups. He also agreed that the letter was not the full medical record of Munshi and he was not calling the Doctor to come and give evidence of the medical records of Munshi.
(xvii) He also admitted that he is living in a house next to his father's in Gallau and that Munshi used to live with his parents. Though he said in his Affidavit at paragraph 4 and 10 that Munshi had nothing to do with his children he admitted that Munshi did go to Suva in 2006 to attend his grandson's wedding. He also admitted that Ashwin and Usman helped Munshi in Nanuku. He agreed that he did not pay the funeral expenses of deceased Munshi.
(xviii) When he was asked whether his father DW4 was lying when DW4 said that no one informed about Munshi was very sick until his death Defendant said his father may have forgotten about 1st named Plaintiff calling and informing them about it.
(xix) When he was asked if he lodged a complaint with the Police or notify anyone that the signature appearing in Exhibit & P6 is not Munshi's signature he said he did not. He also admitted that he did not inform Title's Office about the Original Title which is with him.
(xx) He denied taking $7,000.00 from Munshi and said he did not pay $70,000.00 for Munshi as per the Agreement P3 as he was taking care of Munshi.
(xxi) In re-examination he said he knew Munshi was divorced because his mother gave him copies of the letters from Court (which was marked as Exhibit D8).
(xxii) In cross-examination (with leave of the Court) he agreed that the name of spouse Hafizan was on the death certificate as Munshi's wife, who is legal living wife (Death Certificate was marked Exhibit P11).
9.0 Analysis and Determination
9.1 I will first deal with issue 4, 5, 6 and 9 analysis the evidence adduced at the Trial.
9.2 Issue No. 4 is, Whether the Certificate of Title document was in the Defendant's possession? If so, then why the Defendant did not advice the Plaintiffs when application for Provisional Title was made and the same was advertised in the newspapers on 3rd May, 2007.
9.3 The Defendant has confirmed he always had the duplicate Original Title with him as he was the owner of the property. He said he did not see the advertisement as he did not have access to newspapers. This I think is a reasonable explanation given by the Defendant for not seeing the paper advertisement. However, this explanation is not a sufficient explanation to say that the Plaintiff's transfer was done in a fraudulent manner.
9.4 Issue No. 5 is, Whether the deceased entered into a share farming agreement with the Defendant.
9.5 There was no evidence adduced to prove that there was a share farming agreement between the Deceased and the Defendant. What was revealed in evidence was that Deceased Munshi was farming alone till he fell ill in 2002 and thereafter farming was done by Ashwin. Though the Defendant said Ashwin was farming on his request after the property was transferred to him Ashwin confirmed in evidence that he went into share farming with Munshi from 2004 to 2006 on a verbal agreement. Therefore I cannot accept the Defendants' version that there was a Share Farming Agreement between the Deceased Munshi and the Defendant.
9.6 Issue No. 6 is, Whether the Defendant is cultivating the said property and uplifting the cane proceeds from the said land.
The Defendant admitted in evidence that from 2006 he is cultivating the land and uplifting the cane proceeds from the said land.
9.7 Issue No. 9 is, Whether the Defendant took a loan of $7,000.00 from the Deceased? And if so should it be paid by the Defendant to the Plaintiffs with interest at the rate of 10% [or some other rate] from the date of the loan.
9.8 The 2nd named Plaintiff stated in evidence that her father told her he gave $7,000 to the Defendant by withdrawing a fixed deposit for him to buy a van.
In the Declaration made by late Mr Munshi (P2) he has stated that he was pressured by the Defendant to give money for the Defendant's needs and to date the Defendant owes him the sum of $7,000.00 in cash. He does not state that a lump sum of $7,000.00 was given to the Defendant to buy a van. He only states that the Defendant was given money for his needs. No accounts of such transactions areshown in the said document. The 2nd named Plaintiff has not witnessed any such transaction but only say that her late father told about it when he was in Suva.
In cross-examination the Defendant denied taking $7,000.00 from Munshi.
9.9 In analysing the evidence adduced in regard to this issue I find that the Plaintiffs have failed to prove on a balance of probabilities that late Mr Munshi loaned $7,000.00 to the Defendant.
10.0 Let me now deal with Issue No. 1 which relates to the Agreement made between the
Deceased Munshi and the Defendant marked as Plaintiffs Exhibit P3. The Plaintiffs allege breach of the said Agreement by the Defendant. The clauses relevant to the alleged breach are clause 2 and 3 of the Agreement which are as follows:
"2. That the purchaser hereby undertakes to look after the vendor for his life in other words the purchaser shall provide food, shelter, travelling, medical expense and in the event of the death of vendor the purchaser shall also provide funeral expenses and other related expenses.
3. That in specifically agreed that in the event if the purchaser fails to fulfil the obligations as mentioned in paragraph 2 hereinabove he shall pay the vendor the agreed sum of $70,000.00 (SEVENTY THOUSAND DOLLARS) or return the subject land immediately to the vendor."
10.1 DW1 Yunus Adam Patel said that he went to the Defendant's parents' house during function as he was a religious teacher and he saw Munshi at their place. He also stated that the Defendant was staying in his house and it is situated close to the Defendant's parents house.
10.2 The Defendants father Abdul Rauf DW4 said that Munshi was staying in his house and him, his wife, together with elder son and his wife used to look after Munshi. He admitted he and his wife assisted Munshi and the Defendant took him to hospital at night in his taxi.
10.3 PW1 Ashwin confirmed that his elder brother used to sleep with Munshi in his home and when he migrated the witness started sleeping with Munshi for the past 15 years. He also said that he was doing Share Farming with Munshi for 3 years (2004 to 2006). In cross-examination he said he did not see the Defendant coming to see Munshi.
10.4 PW2 Usman Ali who lives 100 metres away from Munshi's home said he was born and grew in Nanuku and he also looked after his uncle Munshi. He stated further that he used to take Munshi to hospital and Ashwin also took Munshi to hospital. He confirmed that Ashwin was sleeping with Munshi and said sometimes he cooked for Munshi.
10.5 PW2 said further that the Defendant took Munshi's house keys after Munshi's death and shifted to the house and before that the Defendant was living in Gallau as he has a house there. In cross-examination he agreed that Munshi normally did his own cooking but also Ashwin did his cooking. He said he saw Munshi going to Ashwin's house to eat and then came back to sleep in his (Munshi's house). He said this was during 2002, 2003, 2004 and 2005.
10.6 PW4 Shafiq said Ashwin was giving food to Munshi and Munshi was living in Nanuku in his farm.
10.7 Evidence of Defence witness DW1, DW2 and DW3 cannot be considered as credible evidence to prove that the Defendant has fulfilled his obligation under clause 2 and 3 of the Agreement P3. DW1, DW2 and DW3 admitted that whatever they were saying was what they were told by the Defendant and his father. As such their evidence could be regarded as heresay evidence as they have not seen what they were saying in evidence. DW2 said that he used to ask the Defendant and his father at the mosque on Fridays about Munshi and what he was told is what he was saying in Court. When it was put to DW2 what was told by relatives was about all he has put in the Affidavit he said "Yes". DW3 agreed that he did not see the Defendant taking Munshi to hospital but Defendant used to tell him when he met him in town that he took Munshi to hospital.
10.8 DW4, the father of the Defendant contradicted himself with his own Affidavit regarding the funeral expenses. Though it is deposed in his Affidavit that the Plaintiff paid Munshi's funeral expensesDW4 said in his evidence that he did not tell anyone that the Defendant paid the same.
10.9 The Defendant also confirmed in evidence that his parents looked after the Deceased.
He said his mother used to give food and medicine to Munshi; let him have shower.
He admitted that he is living in a house next to his father's house in Gallau and that Munshi used to live with his parents. He also
admitted that hospital records P6 only talks about "admission dates" and not check-ups. He agreed that the letter was not the full
medical record of Munshi. When he was asked whether P6 indicates the only six times he took Munshi to hospital Defendant said "Yes,
looked after by mother".
10.10 When he was asked what is the medicine he bought for his uncle he failed to give the name of any medications. When he was asked what was the price he paid for medicine he replied that he got medicine mostly from the hospital and it's provided free of charge.
10.11In analysing the above evidence I find that the Defendant has failed to prove on balance of probability that he looked after Mr Munshi. He admitted he did not pay the funeral expenses of the deceased Munshi. What is proved by P6 medical record is that the Defendant has taken Munshi to hospital 6 times to admit him in his taxi. As such I hold that the Defendant has failed to fulfil the obligations as mentioned in paragraph 2 of the Agreement marked P3. He also admitted that he has not paid late Mr Munshi $70,000 as mentioned in paragraph 3 of the Agreement.
11.0 Issue No. 2 to be determined is whether the Defendant unlawfully and by exercising undue influence got the said property transferred to him.
11.1 The Defendant has deposed in his Affidavit (paragraph 8) that since 2001 the Deceased was getting sick. At paragraph 11 of the Affidavit he has deposed that in 2003 Munshi's health condition worsened and he told the Defendant that he would give the land at Nanukuto the Defendant. But the Defendant never admitted in evidence that Munshi was not in a proper medical condition to sign the transfer in 2003. Furthermore, none of the Plaintiffs' witness said that Munshi was seriously ill within the said period. What transpired in evidence is that he used to fall ill from time to time with a breathing problem. This is proved by the evidence of PW3 Jairul Nisha who said her father was not sick all the time and his breathing problem was not a permanent problem.
If the Defendant did something wrong to Munshi by getting the transfer signed, the question arise as to why Munshi did not tell about it to his children when they visited him.
Evidence of PW3 and PW5 the daughters of Munshi revealed that their father told them about the arrangement when he came to Suva in 2006. Therefore I cannot accept the Plaintiff's allegation that the Defendant got the transfer when Munshi was sick and not in a medical condition to sign a transfer in 2003.
11.2 The Plaintiffs also allege that the Defendant exercised undue influence over the Deceased and got the property transferred under his name, after 4 months of having entered into the Agreement P3. The evidence led at the trial does not reveal that the Defendant exercised undue influence to get the transfer signed by Munshi. In the Declaration P2 Deceased Munshi does not state that the Defendant used undue influence to get the transfer signed. What he has stated in P2 is that due to the first severe and overwhelming attack of breathlessness he was not completely rational at the time he transferred his land and property to the Defendant.
He states further in P2 that he has now gotten used to the severe episodes, and have had the time to reflect and realised what he had done in a hurry was irrational. He also states stated that he trusted his sister Saira Bi and son Munaf the Defendant to do the right thing as his heirs if he die suddenly. This shows that the Deceased was not unlawfully influenced by the Defendant to transfer the property but he had done so as he believed the Defendant and his mother would look after him and do the right thing if he dies suddenly. He never says in P2 that the Defendant exercised undue influence to get the transfer.
12.0 I will now get onto issue No, 3 that is to determine, Whether the transfer to the Plaintiffs was done in a fraudulent manner.
12.1 The Defendant has filed a counter-claim alleging fraud on the part of the Plaintiffs in having the property transferred under their names.
In the Statement of Defence the Defendant states that the Plaintiffs and the Deceased filed a false declaration with the Registrar of Titles, that the Original Certificate of Title was lost when knowing fully well that the Original Certificate of Title was in the possession of the Defendant.
12.2 In the request for Provisional Title (P6) what the Deceased has said is he wish to apply for a provision Title to CT 10316 as the Title has been misplaced. In the paper advertisement it is stated that the Title is "more or less having been lost......" The Deceased has not specifically stated that the Title is lost.
12.3 The Defendant does not say that the Notice of the application for Provisional Title was not published as provided by Section 28 of the Land Transfer Act (Chapter 131).What he says is that he did not see the advertisement.
12.4 It is pertinent to quote Section 28(2) and 28(3) of the Land Transfer Act at this point.
Section 28(2)In the event of a special duplicate instrument of title being issued under the provisions of subsection (1) and of the duplicate instrument being at any time thereafter found or recovered, such duplicate instrument shall forthwith be lodged, by the person who finds or recovers it, with the Registrar who shall cause such duplicate instrument to be cancelled.
Section 28(3)If, in the circumstances specified in the subsection (2), the duplicate instrument of title is not lodged with the Registrar for cancellation, such duplicate instrument shall, by virtue of the issue of the special duplicate instrument, become null and void and cease to have any value or effect in relation to the land comprised therein.
12.5 The Defendant admitted in evidence that he had the duplicate Title copy with him and he did not hand it over to the Registrar of Titles although in 2007 he became aware of the property being transferred to the Plaintiffs.
12.6 From the evidence adduced by the Plaintiffs it is clear that they have followed the proper procedure to obtain the provisional Title to the property. It is also evident that the Defendant has failed to lodge the duplicate Title with the Registrar and as such it has become null and void.
Whether the Deceased knew the Title is with the Defendant is doubtful as it is proved in evidence that he was an old sickly person. The Plaintiffs themselves would not have known where the Title was as the evidence revealed that they have never lived with the Deceased at Nanukufor a long period of time.
In the light of the above circumstances I cannot accept the allegation that the Plaintiffs and the Deceased filed a false declaration with the Registrar of Titles.
12.7 The Defendant alleges that the Plaintiffs persuaded the Deceased to sign a transfer unto them when the said Deceased was suffering from fever and had not fully recovered from an attack of earlier respiratory failure and thereby unable to appreciate the nature of the document he was asked to sign. He further alleges that the transfer took place on 30th October, 2006 and the Deceased died on 8th November, 2006.
12.8 The Defendant said in evidence that 8 days before the death of the Deceased he visited him in theCWM hospital in Suva. But his evidence does not reveal that the Deceased was in a critical condition at the time he visited him. Furthermore, if there was any force or pressure used on the Deceased by his children the Defendant would have been made aware of it by the Deceased. The Defendant was not present with the Deceased when the Transfer was signed. Therefore he is not in a position to testify about the medical condition of the Deceased at the particular time. No medical evidence is adduced to prove that the condition of the Deceased was such he was unable to appreciate the nature of the documents he was asked to sign.
12.9 When the Deceased daughter 2nd named Plaintiff was asked about the medical condition of the Deceased at the time of signing the transfer marked P5 she said "He was doing well, when he is emotionally disturbed he gets an attack." What the evidence reveal is that the Deceased was having a difficulty of breathing (attacks) from time to time. This does not prove that he was not in a proper medical or mental condition at the time of signing the transfer.
12.10 Solicitor Nagin's witnessing the Transfer P5fortifies the fact that the Deceased was in a position to understand the contents of the Transfer at the time he signed it.
12.11 The Defendant alleges further that the Plaintiffs deliberately prevented the said Deceased from obtaining an independent legal advice on the said transfer.
12.12 The Defendant confirmed he was not in Suva with the Deceased 8 days before the death. He does not adduce any evidence to prove that the Deceased was prevented from independent legal advice. The documents were all witnessed by the Solicitors and the Defendant did not challenge the authenticity of the documents.
Moreover, Defendant never states in evidence that the Deceased said anything about his children not allowing him to get independent legal advice when the Defendant visited him in Suva prior to his death.
Therefore I find that the Defendant has failed to prove on a balance of probabilities the allegation that the Deceased was not allowed to get independent legal advice on the said Transfer.
12.13 The next allegation of fraud raised by the Defendant is that there has been a total failure of consideration on the part of the Plaintiffs for the said Transfer.
12.14 The 2nd named Plaintiff in her evidence confirmed paying $5,000.00 to the Deceased and more than that. Evidence adduced by the Plaintiffs confirm that they have paid the Deceased medical expenses and also the funeral expenses as well. The nominal value appearing on the Transfer and the other expenses by the Plaintiffs confirm that there was no failure of consideration as the part of the Plaintiffs for said transfer. On the contrary the Transfer to the Defendant was done in consideration of the obligations to be fulfilled by him as per the Agreement P3. As discussed herein above the Defendant has failed to fulfil his obligation, and therefore it is apparent his Transfer lacks consideration but not the Transfer of the Plaintiffs.
12.15 The Defendant alleges further that the Transfer is invalid and irregular because it was registered on 4th September, 2009 and the Transferor was Deceased at the material time and such knowledge was kept hidden from the Registrar of Titles.
12.16 The Defendant does not dispute that the Deceased signed the Transfer during his lifetime. No legal provisions is shown by the Defendant to show that the delay in registration invalidate the Transfer. Therefore I don't find the delay in registration of the Transfer does amount to an act of fraud.
12.17 The Defendant also takes up the position that the said Transfer is defective because there was a valid Caveat in place namely Caveat No. 266274 and no prescribed steps had been taken to have the said Caveat removed.
12.18 It is evident from the Plaintiff's Transfer that it is registered "subject to Caveat No. 266274". Similarly, the 1st Transfer that was done from the Deceased to the Defendant was also done "Subject to Caveat No. 266274". As such the Defendant cannot allege fraud because the initial transfer under his name from the Deceased was also done subject to the same Caveat.
12.19 In Walingford v Mutual Society [1880] 5 AC 685 at P.697 Lord Selbourne LC said:
"With regard to fraud, if there be any principle which is perfectly well settled, it is general allegations, however strong may be the words in which there are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon, in a manner which would enable any Court to understand what it was that was alleged to be fraudulent................"
12.20 In the present case I find that the allegation of fraud against the Plaintiffs is not proved on a balance of probabilities. When the Defendant was asked why a Power of Attorney was given to the Deceased he said it was only for the purpose of the Deceased to uplift the cane money. When he was asked why he did not prepare a special Power of Attorney for that purpose Defendant said he trusted the Deceased and if he knew the Deceased would Transfer the property he wouldn't have given it.
12.21 From the evidence analysed as above I find that the Plaintiffs have not fraudulently and or by undue influence and misrepresentation effected a transfer of the said property unto their names. The Deceased has acted as the Attorney of the Defendant and transferred the property to the Plaintiffs.
13.0 Before I conclude it is pertinent at this point to consider the provisions contained in Section 38 of the Land Transfer Act Chapter 131, which confirms that the registered instrument is conclusive evidence of Title.
Section 38 reads as follows:
"No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title."
13.01 Section 39 provides the exception to the indefeasibility of Title enshrined in Section 38 of the Act.Section 39 guarantees the Title of a registered properties except in case of fraud.
13.02 In Prasad v Mohammed [2005] FJHC 124; HBC 0272J 1999L (3 June 2005) Justice Gates (as his Lordship then was) has clarified the said provision as follows:
"Fraud
[13] In Fiji under the Torrens system of land registration, the register is everything:
Subramani&Ano v DharamSheela& 3 Others[1982] 28 Fiji LR 82.Except in the case of fraud the title to land is that as registered with the Registrar of Titles under theLand Transfer Act [see sections 39, 40, 41 and 42]: Fels v Knowles (1906)26 NZLR 604; Assets Co Ltd v Mere Roihi[1905] AC 176, PC. In Frazer v Walker [1967] AC 569 AT P. 580 Lord Wilberforce delivering the judgment of the Board said: "It isnoticed that each of these sections excepts thecaseof fraud, Section 62 employing thewords "except in case of fraud." And Section 63 using thewords "as against the person registered as proprietor of that landthrough fraud." The uncertain ambit ofthese expressions has been limited by judicial decision to fraud by the actual fraud by the registered proprietor or 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."
13.03 In this matter actual fraud has not been shown on the part of the Plaintiffs as registered proprietors. Therefore I hold that the Title registered under their names shall not be impeached or defeasible by reason of fraud.
14.0 Accordingly, I hold that the Plaintiffs have been wrongly deprived of the use and occupation of the property comprised in Certificate of Title 10318 being Lots 1 and 2 since the death of Munshi on 8th November, 2006. As there is insufficient evidence to assess the claim of general damages sought by the Plaintiffs I hold that the matter should be remitted to the Master of the High Court for the purpose of assessing general damages. Considering my findings and determinations as above, I conclude that the issue 7, 8 and 10 should be answered in favour of the Plaintiffs and that the Counter-Claim of the Defendant should be dismissed.
15.0 Final Orders
I hold as follows:
(a) The Defendant's counter-claim is dismissed.
(b) The Defendant to give the Plaintiffs immediate vacant possession of the property comprised in Certificate of Title No. 10318 leaving all the Deceased's belongings.
(c) Judgment in the sum of $7,000.00 claimed by the Plaintiffs declined.
(d) General damages claimed by the Plaintiffs to be assessed by the Master of High Court and the Deputy Registrar to remit this file to the Master's Court for directions.
(e) The Defendant shall pay to the Plaintiffs costs summarily assessed in a sum of $2,500.00.
Lal S. Abeygunaratne
Judge
At Lautoka
17th November, 2015
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