Sami v Devi [2015] FJHC 921; HBC91.2010 (25 November 2015)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 91 OF 2010

BETWEEN:

PUN SAMI of Lot 26 Mandir Street, Nakasi, Nasinu in the Republic of Fiji, Retired.
PLAINTIFF

AND:

LATCHMI DEVI of Nakasi, Nasinu in the Republic of Fiji, Domestic Duties.
FIRST DEFENDANTS

:REGISTRAR OF TITLES OFFICE
SECOND DEFENDANTS

COUNSEL : Mr. R. Singh & Ms. R. Naidu for the Plaintiff
: Ms P. Narayan for the 1st Defendant
: Ms T. Sharma for the 2nd Defendant

Date of Hearing : 3rd and 4th November, 2015
Date of Judgment : 25th November, 2015

JUDGMENT

Introduction

[1] The Plaintiff instituted this action to nullify the purported transfer of his interest to the Defendant contained in Transfer No 597025 in Lease No 249867. The Plaintiff has instructed his solicitors to prepare his last will and in that last will he desired his interest in Lease No. 249867 was to be bequeathed to his son. He was advised to obtain the certified title for the land. The solicitors perused the title and found that he no longer had any interest in the said property as his interest in the said property was already transferred to the 1st Defendant who was a joint tenant of the said property. The lawyer who executed the transfer gave evidence and said that he did not check the identity of the transferor as he believed the villagers who came to him for his professional services and he knew 1st Defendant ‘very well’. He also said that the Plaintiff did not come to his office for the said transfer and the person who impersonated as the transferor had distinct physical characteristics.

Facts

[2] Following facts were agreed between the parties in terms of the pre trial conference notes dated 16th April, 2015. All the parties have signed the said agreed facts and they are;

[i] The Plaintiff and the 1st Defendant are brother in law and sister in law, the 1st Defendants husband Rattan Sami being the Plaintiff’s elder brother.

[ii] The First Defendant was born on 10th June, 1947.

[iii] The Plaintiff and the 1st Defendant jointly applied for a Crown Lease and were granted a Crown Lease being Crown Lease No. 249867 on Lot 26 over DP4624 having an area of 1047m2.

[iv] The Lease agreement was signed by both the Plaintiff and the 1st Defendant as joint tenants on 23rd March, 1987 which was registered on 23rd April, 1987.

[v] The Crown Lease No. 249867 was granted to the Plaintiff and the 1st Defendant for a period of 99 years commencing from 1st December, 1986.

[vi] The annual rental for the lease was $110.00 per annum which subsequently was increased.

[vii] At the time of the issuance of the Crown Lease No. 249867 the 1st Defendant and her husband Rattan Sami were already squatters on the property since 1974 having a lean to house. They subsequently built the two bedroom house on issuance of the lease.

[viii] Since the issuance of the Lease, the Plaintiff has built a concrete building on a lower part of the lease, whilst the 1st Defendant house is at road level.

[ix] On or about 18th October, 2006, the law office of Komai Law was engaged to prepare Transfer documents over Crown Lease No. 249867 being Lot 26 over DP4624.

[x] On 18th October, 2006 the law firm Komai Law prepared Transfer, consent to Transfer in relation to the lease no. 249867.

[xi] On 18th October, 2006 the Transfer of lease was signed whereby the Plaintiff one undivided half share was transferred to the 1st Defendant.

[xii] Consent to Transfer was lodged with the Director of Crown Lands on 18th October, 2006 or about 18th October, 2006.

[xiii] Consent to Transfer was granted on 18th October, 2006.

[xiv] The Transfer was registered on 25th October, 2006 with the 2nd Defendant being Transfer no. 597025.

[xv] From early January 2010 the parties went through mediation by their common family member and the solicitors to peacefully mediate the relationship between the parties.

[xvi] The mediation was not successful.

[xvii] On 24th November, 2009 the Plaintiff executed a Caveat over the property.

[xviii] The 1st Defendant solicitors Prem Narayan on 13th January, 2010 wrote to the Registrar of Titles not to register the Plaintiff’s Caveat as parties were talking on settlements.

[xix] The Plaintiff’s solicitors Messrs Sherani & Co wrote to the Registrar of Titles on 1st February, 2010 advising to proceed with the registration of the Caveat as no settlement was reached.

[xx] The Registrar of Titles wrote to Prem Nayaran on 18th February 2010 stating that the Caveat lodged by the Plaintiff was returned for correction.

[xxi] The Plaintiff’s Caveat was not registered by the 2nd Defendants.

[xxii] On 27th January, 2010 the Plaintiff reported the matter to the police.

[xxiii] The 1st Defendant was questioned by the police at the Valelevu Police Station on 25th August, 2010. (see minutes of the pretrial conference where both parties had signed).

Analysis

[3] The Plaintiff gave evidence and the lawyer who executed the purported transfer also gave evidence and confirmed that the Plaintiff did not come to execute the transfer. Both these witnesses were cross examined but at the end their evidence remained credible.

[4] The Plaintiff gave evidence as to how he got settled in the said land, initially as a squatter. There were number of squatters around that area and later the said squatters were required to make an application to legalize their occupation. The Plaintiff had come to the land on the invitation of his late brother who was also a squatter. His late brother’s wife is the 1st Defendant. Initially, the Plaintiff had stayed with his brother for about six months as a squatter but latter he had built a separate house in a vacant area of the same land where squatters were residing. The initial structure was a temporary structure and he said he was a carpenter and was permanently employed with a construction firm at that time. After building a separate structure the Plaintiff’s wife and a child also came to live with him and while he was living there his wife gave birth to another child.

[5] The two families lived in the same vicinity in an undivided plot of land belonging to the government, as squatters. There was no dispute among them. Later the squatters were required to make application for subdivided lots and the Plaintiff and the Defendant had obtained a lease as joint tenants to the land in issue. The Plaintiff also described how he became a joint tenant with the Defendant as his late brother got a plot of land from the same subdivision.

[6] It is admitted fact that the Plaintiff had built a concrete house on the said allotment, where he was a joint tenant and the 1st Defendant had lived in another plot of land in the same subdivision. The Plaintiff had obtained authority to build a house in the said property and he had built a concrete house. He and his family lived in the said house.

[7] The Plaintiff desired to migrate to Canada and went to a solicitor firm to prepare his last will. He desired to bequeath his interest on the land to his son and the solicitors had requested for a copy of the title to examine his interest. After examining it he was advised that there was no interest left for him as he had already transferred his interest to the 1st Defendant. The Plaintiff was puzzled as to this revelation, but he had remained calm and tried to resolve it amicably as the purported transfer was done by his late brother and sister-in–law.

[8] The Plaintiff alleged fraud against the 1st Defendant in the said transfer of his share to the 1st Defendant. The lawyer who executed the said transfer document gave evidence. He said he had met the 1st Defendant, her late husband and two others, a male and a female, came twice for the said transfer. First they had come and given the instructions for the purported transfer and again they had come to execute the transfer. The Lawyer said he did not verify the identity of the persons who came and believed them and expected them to be honest, considering his status in the community. He stated that he had not seen the Plaintiff and he never came to his office for the said transfer. He had seen the Plaintiff for the first time in court. He gave the physical characteristics of the person who came to his office for purported transfer. The person who came that day was very much taller than the Plaintiff and he could clearly distinguish the two persons, though some time has passed. In the cross examination his creditability as an independent and honest witness was firmly established.

[9] The counsel for the Defendant had tried to point out the interest stated in the caveat filed by the Plaintiff to show that he only had an ‘equitable interest.’ This cannot be accepted. The Plaintiff could not even understand what an ‘equitable interest’ was at the cross examination and the preparation of caveat would have been done by the solicitors. The interest stated in the caveat cannot be considered in isolation with the other evidence presented to the court by both parties. There was no dispute as to ‘equitable interest’ in the land, between the parties. The Plaintiff and his late brother and sister-in-law (the Defendant) had first discussed the purported transfer and in the family negotiations the Plaintiff consented to sell his interest in the land with the building for $30,000 and they had met a lawyer for that purpose. The lawyer had instructed a bank draft for the said value to enter the terms of settlement, but this did not happen.

[10] The dispute between the parties from the beginning related to purported transfer of Plaintiff’s interest in the land to the 1st Defendant and request to rectify it. The payment of a sum in lieu of the transferring back the interest was a term of settlement between the parties, but before the said settlement terms were entered the Defendant had gone to another lawyer and settlement never eventuated.

[11] So, irrespective of what was stated in the caveat the issue between the 1st Defendant and the Plaintiff was never an ‘equitable interest’, but always regarding the alleged fraud and the transfer of the Plaintiff’s interest to the 1st Defendant.

[12] The other issue raised by the counsel for the Defendant was degree of burden of proof. The main relief sought by the Plaintiff is the declaration of the purported transfer of his interest to the 1st Defendant as null and void. For the said order the Plaintiff is alleging fraud.

[13] The contention of the 1st Defendant is that Plaintiff should prove more than general allegation of the fraud against the 1st Defendant in order to nullify the purported transfer between the parties. I agree with the said contention and in my judgment the Plaintiff’s allegation of fraud was not a general allegation. The allegation of fraud in this case was actual and real and it was made against the 1st Defendant, her late husband along with unknown party who had impersonated and committed forgery of the Plaintiff’s signature. From the available evidence all had acted dishonestly and 1st Defendant had good knowledge of forgery and impersonation. (See; Assets Company Ltd v Mere & Others [1905] UKLawRpAC 11; [1905] AC 176 at 210).

[14] According to the lawyer who executed the purported transfer of the Plaintiff’s interest to the Defendant, the person who signed the said document of transfer was not the Plaintiff. The 1st Defendant accompanied by her elder daughter had visited the said lawyer with her late husband and another male who impersonated. The lawyer said he knew the 1st Defendant ‘very well’. So, he had believed them and did not verify the identity of the purported transferor.

[15] In Hornal v Neuberger Products Ltd - [1956] 3 All ER 970 at p973 Lord Denning said that in a civil action there was no requirement to establish a fact on beyond reasonable doubt, the high degree needed in criminal action.

[16] The difference between the civil and criminal burdens have been discussed by Lord Denning in, Miller v Minister of Pensions ([1947] 2 All ER 372 at pp 373–375). The burden of proof in civil matters, was elaborated in the said judgment in the following manner

'That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probable than not," the burden is discharged, but, if the probabilities are equal, it is not.

[17] On the analysis of the evidence the Plaintiff has not signed the transfer and 1st Defendant, her late husband had acted in collusion and caused another unknown party to impersonate the Plaintiff, and sign the transfer documents, in the purported transfer. In a civil action in order to vitiate the transfer, fraud needs to be proved against the 1st Defendant and this was established on the required burden of proof. The fraud alleged in this instance was actual fraud and not constructive or equitable fraud. In the circumstances the Judgment of Philips J in Fiji High Court case of Chute v Wati, HBC 29 of 2008 (unreported) cited in the written submissions by the 1st Defendant cannot be applied in favor of her.

[18] The 1st Defendant had relied heavily on not producing a forensic report regarding the signature of the purported transfer document. I do not agree with the said contention. When the lawyer who executed the transfer document ruled out the Plaintiff being the person who signed purported transfer it in his office, that is sufficient proof to discharge the burden.

[19] It is not the number of witnesses or reports prepared by experts that matters in the discharge of burden of proof. It is the quality of the evidence presented to the court that matters in establishing a fact on required degree of probability. The quality of the evidence affects the cogency and can be measured from credibility, consistency, spontaneity of the evidence. In the analysis, the degree of probability is a factor that determine the proof.

[20] The lawyer's evidence can be considered as independent evidence. He was the lawyer for the 1st Defendant and had known her well enough so that he had not doubted her and her late husband's statement as to the identity of the Plaintiff. It was 1st Defendant and her late husband that paid his charges for execution of the transfer. There was no reason for him to give evidence in support of the Plaintiff. He said he had not even seen the Plaintiff before coming to court. Not only he was a disinterested party but also credible witness. In the cross examination his credibility was well established and he explained the reason he came to court to give evidence.

[21] When there is cogent and direct evidence before the court regarding the purported signature of the Plaintiff, there was no need of any forensic evidence to prove that, the signature appearing in the purported transfer was a forgery. When there is no cogent direct evidence as to the proof of fact, the court can consider the opinions of experts for its final determination. In this case the fact that the Plaintiff needed to prove was that he did not sign the purported transfer of his interest in land to the 1st Defendant and, it was done with the knowledge of 1st Defendant. These facts were established with cogent evidence. The person who committed forgery was not identified but that was not a requirement for this civil action.

[22] The failure of the criminal prosecution for forgery was due to non identification of the offender, but that does not have a bearing on this case for declaration sought in this action.

[23] The subsequent conduct after the purported transfer also supports the Plaintiff. The 1st Defendant did not take any action to evict the Plaintiff.

[24] The Plaintiff did not lead any evidence regarding the damages. Even in the submissions there was no reference, except at conclusion where the damage was claimed on loss of enjoyment of the property. (see para 7.05)

[25] No evidence was presented to the court regarding this claim for damages hence the Plaintiff had failed to prove damages on the balance of probability.

[26] The 1st Defendant in the statement of defence had stated that she had paid $15,000.00 to the Plaintiff. On the balance of probability this fact was not proved. It is unlikely such a large amount paid without documentary proof. No details of alleged payment was given.

[27] Summarily assessed at $6,000.00 and this cost is awarded against the 1st Defendant only. I do not award a cost for the 2nd Defendant, considering the circumstances of the case.

Conclusion

[28] The Plaintiff has established the act of fraud against the 1st Defendant in the execution of the purported transfer No 597025 in favor of the 1st Defendant on 25th October, 2006. There was no evidence presented to the court regarding damages to the Plaintiff. The allegation of the 1st Defendant that she paid $15,000.00 was not established. The Plaintiff's evidence established fraud against 1st Defendant on strong and clear evidence. (See; Gallie v Lee & Another 1969 1All ER 1062). The Plaintiff is entitled for a declaration that the said transfer on Crown Lease No 249867 is null and void. The cost of this action is assessed summarily at $6,000.00 to be paid by the 1st Defendant within 21 days.

Final Orders

[a] The transfer No 597025 in favor of 1st Defendant registered over Lease No 249867 on 25th October, 2006 is declared null and void.

[b] The Plaintiff is granted a cost of $6,000.00 against the 1st Defendant to be paid within 21 days.

Dated this 25th day of November, 2015.

Justice Deepthi Amaratunga
High Court, Suva