IN THE HIGH COURT OF FIJI 
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION		
	Civil Action No. 182 of 2013.
	
BETWEEN	:	RAM DEO of Nabitu Subdivision, Sigatoka Valley, Farmer & SHOBNA SANJANI DEO of Valelevu Nasinu, Police Officer.

		PLAINTIFF	
AND	:	J.P BAYLY TRUST a charitable organisation having its office at 193 Rodwell Road, GPO Box 15042, Suva, Fiji.
	
		DEFENDANT	
R U L I N G

INTRODUCTION

1.	I am being asked to strike out the statement of claim of the applicants pursuant to Order 18 Rule 18(1) of the High Court Rules 1988. 
2.	The Courts will exercise this jurisdiction rather guardedly because, as Mr Justice Kirby has said in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005:-

….It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.

3.	By giving every party to a civil dispute the right to have the matter determined by a court of law, section 15(2) of Fiji’s 2013 Constitution further reinforces the same principles . Kirby J  demonstrates the extent to which the Courts will take on a guarded approach  as follows in Len Lindon:

An opinion of the Court that a case appears weak and such that is unlikely to succeed is not, alone, sufficient to warrant summary termination... even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment
…….
If, notwithstanding the defects of pleadings it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading 

4.	Where an application to strike out is based on the allegation that the statement of claim discloses no reasonable cause of action, the Courts will look only at the facts as pleaded and, assuming them to be proved, ask whether the plaintiff could succeed on his claim. It is only in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law or where the cause of action is so clearly untenable that it cannot possibly succeed will the courts act to strike out a claim.  

BACKGROUND

5.	There is not much in terms of facts that is in dispute between the parties. JP Bayly Trust, a charitable trust, used to own a large piece of freehold land comprised in two separate titles namely Certificate of Title No. 35/3413 and Certificate of Title 42/4135. On this large span of land, JP Bayly had various “tenants” who were allotted separate plots which they cultivated.  The exact nature of their arrangement is not clear to me. Suffice it to say that the “tenants” were required to pay a “rent” to JP Bayly which (I presume) was levied on a monthly basis. 
6.	The boundaries that separated each “plot” from the adjoining one were not formally surveyed. The tenants, notwithstanding, all knew where the boundary lines ran. This is the picture that the applicants paint.
7.	At some point in time around 2003 and 2004, JP Bayly formally subdivided its land and created various freehold plots. The idea was to transfer the freehold title over each subdivision to every sitting tenant by way of a sale and purchase agreement. This process was completed in due course for every subdivision. 
8.	Judging from the size of each plot, a relatively small consideration was paid for each transaction. For instance, the applicants in this case namely Ram Deo (“Deo”) (the father) and Shobna Sanjani Deo (“Shobna”) (the daughter), who are co-owners of the particular estate in question, signed their sale and purchase agreement on 18 August 2004 and have since settled in full the total consideration of $12,300.09 only in exchange for title to the 2.6529 hectares freehold plot which is comprised in Certificate of Title 38349 Lot 8 on DP 7146.  
9.	However, according to the applicants, the boundaries of Certificate of Title 38349 do not coincide with the area of land which they and their family had cultivated since 1970.  They seek orders to direct the respondent to engage a registered surveyor to re-survey Certificate of Title No. 35/3413 and Certificate of Title 42/4135 and to readjust the boundaries to their Certificate of Title 38349 Lot 8 on DP 7146. 

PLAINTIFFS’ HISTORY OF OCCUPATION & CULTIVATION

10.	As I have said, not much of the facts are in dispute. Deo’s elder brother, namely Vishnu Deo, first “purchased” the interest on the said land from one Dwarka Prasad in 1970. Vishnu then had an arrangement with another brother namely Raj Deo (“Raj”) to farm the land.  Deo says that “all monies and dues were paid to [JP Bayly Trust]”. In 1985, Deo came to the land on some share-farming arrangement with Raj. When Raj died ten years later in 1995, Vishnu gave the land to Deo. From then on, Deo started paying rent to JP Bayly Trust. Deo has been cultivating the land to the exclusion of others. His brothers had done the same before him since 1970. There are other farms adjoining Deo’s on either side. The owners of these were also tenants of JP Baily Trust. They too have since acquired their own freehold titles to their respective lands as a result of the subdivision project. According to Deo, the owners of the adjoining lots have always cultivated their respective plots up to Deo’s line of cultivation without any encroachment.

APPLICANTS’ GRIEVANCE

11.	The applicants expected that they would be given title over all that land that they and their family had cultivated and occupied since 1970. However, this was not the case.  The applicants say that the boundaries of the land over which they have been given title are not in accordance with the boundaries that they had pointed out to the surveyor who was carrying out the subdivision work. It appears, although I stand corrected, that the same happened to other tenants/purchasers as well.  As Deo deposes:

…the registered plan for the said land has substantially changed the boundaries and my farm now encroaches on the neighbours land and another neighbour’s home, which was built in 1983, now is on my land.

12.	Appendix 1 to this ruling is a survey plan drawn by Cadastral Solutions Limited which the applicants attach to the affidavit of Ram Deo in support of the Originating Summons shows the difference between the pre-existing lines of cultivation and occupation and the boundary lines of the new subdivisions.

THE SURVEYOR

13.	JP Bayly had engaged a registered surveyor to survey the entire land prior to subdivision. At some point during this process, the surveyor had asked Deo to point out the boundaries which he (and his brothers before him) have been cultivating since 1970. Deo did so. After that, Deo was asked to execute a document to confirm and record the same. I gather that the other tenants were asked to do the same. However, as it turned out, the subdivision did not follow the pre-existing cultivation and occupation lines.

ORIGINATING SUMMONS

14.	The Originating Summons filed on 02 October 2013 by Ram Deo (“Deo”) and Shobna Sanjani Deo (“Shobna”) seeks the following Orders:

1.	That the First Defendant engage a registered surveyor to redefine the boundaries of the land Comprised in Certificate of Title Number 38349 in terms of the lines of occupation and cultivation by the Plaintiff, being shown on the plan prepared by Cadastral Solutions Limited, a firm of Surveyors and project Managers.
2.	That the redefined Subdivision Plan for the land comprised in CT 38349 be lodged with the Second Defendant.
3.	That the Second Defendant issue a new Certificate of Title containing the new subdivision plan and boundaries of the land.
4.	Costs on indemnity basis.
5.	Any further or other order as this Honourable Court may deem fit.

On the grounds that;
a.	That the Plaintiffs purchased the land comprised in Certificate of Title Number 38349 containing an area of 2.6529 hectares known as Nabitu in the District of Sigatoka (hereinafter referred to as the said land.) by virtue of sale and purchase agreement entered between the plaintiffs and the First Defendant on the 18 August 2004 purchased in the consideration sum of $12,300.09 (Twelve Thousand Three Hundred and Nine cents).
b.	That the First plaintiff had possession of the said land sometime in 1985.
c.	That the Plaintiffs took possession and control of the said land on and at the time of such purchase the land was not surveyed and there was no title issue by the Second Defendant.
d.	The First Defendant’s Surveyor has wrongfully marked and delineated the boundaries of the Land comprised in Certificate of Title Number 383349.  The boundaries shown by the First defendant, being the boundaries within which the Plaintiffs have cultivated on the said land since 1985 is different from the boundaries noted in Deposited Plan for Certificate of Title Number 38349.
e.	That the First defendant is in breach of clause 11 of the sale and purchase agreement entered between the Plaintiffs and the First Defendant on the 18 of August 2004 in that the First Defendant is required to provide a clear, proper and unencumbered title to the Plaintiffs.
f.	That the Plan and Survey carried on by the Surveyor incorporates houses and residences, which are not owned by the Plaintiff on to the land comprised in Certificate of Title Number 38349.
g.	That First Defendant hired and instructed a Surveyor to carry on the initial subdivision of the land owned by the Plaintiffs and the said Surveyor was employed under the control and direction of the First Defendant.

If the Defendant does not acknowledge service, such judgment may be given or order made against or in relation to him as the Court may think fit and expedient. 

APPROACHING THE ISSUES

15.	The applicants say that they are entitled to the area of land that they (and their family) had cultivated for so many years since 1970 and over which area of land they had settled, built and organised their lives. They signed a sale and purchase agreement on 20 August 2004. Some five or six weeks later, Deo would sign a Certificate of Redefinition. By that document, he confirmed to a surveyor engaged by JP Bayly Trust that he had seen the boundary pegs which the latter had shown to him.
16.	The chronology suggests that at the time the applicants signed the sale and purchase agreement, the exact demarcations had not been determined. The agreement annexed to Deo’s affidavit suggests the same because the only description of the land as it appears in the long title is as follows:

A.	The Vendor is the registered proprietor of all lands contained in Certificate of Title Nos 35/3413 and 42/4135 situated at Nabitu, Sigatoka and has caused the said land to be subdivided into lots.
B.	One of the subdivisions is covered by Deposited Plan No. 7146 but which, although assigned the above number has not been formally registered by the Registrar of Titles, pending conclusion of arrangements for access road to serve the said subdivision.
C.	The Vendor has agreed to sell to the Purchaser the freehold title to the land in Lot No. 8 DP No. 7146 at the price and on the terms and conditions in this agreement.

17.	The subject matter of the agreement is a promise by JP Bayly to the applicants to convey the whole of the land which is described as Deposited Plan No. 7146. Notably, no plan was annexed to the agreement to show what the delineations are, let alone, that what was to be sold was to be demarcated along pre-existing lines of cultivation and occupation.
18.	According to the recitals in the agreement, DP No. 7146 “has not been formally registered by the Registrar of Titles pending conclusion of arrangements for access road to serve the said subdivision”. As I have said above, the evidence suggests that the agreement was signed some six weeks or so before the survey was carried out.  From one viewpoint, the remedies sought by the applicants are akin to an order for specific performance.  The issues in this case are as follows:

(i)	if the agreement involved no express promise on the part of JP Bayly Trust to convey to the applicants in consideration of a purchase price a plot of land to be demarcated along pre-existing lines of cultivation and occupation, can this Court grant orders akin to a specific performance order against JP Bayly Trust?
(ii)	if not, is there any other ground in equity by which the applicants might succeed in having their boundaries re-adjusted along their line of cultivation and occupation?

DISCUSSION

19.	Subject to regulatory approval, a proprietor of land has a right to sub-divide his land into smaller subdivisions of whatever size and demarcations, and to sell each subdivision to a willing purchaser that he wishes to enter into contract with. 
20.	Once a subdivision title is registered with the Registrar of Titles, and transferred by the vendor to the purchaser for valuable consideration, the parties will be said to have performed their obligations to completion. The conveyance would by then have done its work and vested the applicants the legal and beneficial interest in the land - for better or worse. 
21.	Nonetheless, a plot of freehold land was duly conveyed to the applicants by the respondent. That transaction took place pursuant to the same agreement. The applicants did pay the full consideration price stipulated therein. It would appear then that both parties had performed their respective obligations under the agreement. 
22.	In this case, a plot of freehold land was duly conveyed to the applicants by the respondent. That transaction took place pursuant to the same agreement. The applicants did pay the full consideration price stipulated therein. It would appear then that both parties had performed their respective obligations under the agreement. 
23.	Logically, no residual right would vest in the purchasers thereafter to subsequently demand of the vendor to alter or readjust the demarcations if the land conveyed is the same one that is described in their sale and purchase agreement. 
24.	But what if the sale and purchase agreement does not accurately describe the property to be sold? Generally, in such a case, the purchaser would be entitled to rescind the agreement. In Flight v Booth (1834) 131 ER 1160 for example, Tindall CJ said at 1162 to 1163:

The question therefore is narrowed to the single point, whether the misdescription in the printed particulars of sale of the premises to be sold was such as to entitle the purchaser to rescind the contract altogether... 

In this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject matter of the contract that it may reasonably be supposed, that, but for such misdescription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the claim for compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of the sale.

25.	Generally also, equity will not undo a sale of land after conveyance unless there has been fraud or there is such a discrepancy between what has been sold and what has been conveyed that there is a total failure of consideration, or what amounts practically to a total failure of consideration. 
26.	The applicants before me do not want the agreement to be rescinded or undone. They want the agreement to be performed according to terms which, allegedly, were understood between the parties, though, but which are not reflected in the signed written agreement.  Is specific performance available to them? This is an issue I would rather not attempt to answer conclusively at this time?
27.	Mr. Singh argues that JP Bayly Trust has breached clause 11 of the sale and purchase agreement in failing to give his client a clear title. He points to the fact that, because the subdivision did not strictly follow the pre-existing lines of cultivation and occupation, the plaintiffs have ended up having the house of one neighbour being included within their new boundary whilst their (plaintiff’s) own house now sits within the new boundary of another neighbour (See Appendix 1).  In that regard, their title has become encumbered by the presence of the neighbour’s house on their land.
28.	Mr. Singh relies on section 62 of the Property Law Act which provides that “in every transfer by way of sale…. and in every other transfer for valuable consideration, there shall be implied … a covenant that the transferor has good right and full power to transfer and assure the property purported to be transferred, and that free and clear from all encumbrances other than such as are mentioned in the transfer”.
29.	Arguably, the covenant in section 62 could apply anyway regardless of the enforceability and validity or otherwise of the sale and purchase agreement in question. But, assuming this court were to find that JP Bayly Trust  did breach its section 62 covenant, whether or not it is then open to this court to make an order for specific performance in terms of the sale and purchase agreement, is a moot point in the circumstances of this case. 
30.	What remains is that the agreement did not adequately define the land to be conveyed and yet, a conveyance of a certain land was completed for which valuable consideration was paid. The applicants’ argument that they are entitled to be given the land demarcated along the lines of their pre-existing line of cultivation and occupation, prima facie, cannot be based on the written agreement. Can it then be based on some other ground?
31.	The difficulty in this case is that to grant the orders sought would have a domino effect in terms of their immediate neighbours’ boundaries on either side and also the other neighbours whose plots adjoin those of the applicants’ immediate neighbours. It would be so much easier if all the plot owners who have obtained their respective titles from JP Bayly Trust were joined as a party to this action.
32.	The legal issues in this case are rather complex which I would rather not determine summarily by this application.  There are, in addition, some triable issues involved. Accordingly, I dismiss the application to strike out. Parties to bear their own costs.
33.	I will now adjourn this case to Wednesday 21 September 2016 for mention to consider whether this case should be deemed as if begun by writ under the High Court Rules 1988 and in any event, for further directions.

………………………….
Anare Tuilevuka
JUDGE
06 September 2016