Prakash v Verma [2017] FJHC 341; HBC72.2016 (3 May 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 72 of 2016

AND IN THE MATTER of an application under Section 169 of the Land Transfer Act.

BETWEEN : AVIN PRAKASH of Lot 1, Ravukase 1 Nadali, Nausori, Landlord.

PLAINTIFF

AND : FRANCES VERMA of Lot 11, Great Harbour Drive, Pacific Harbour.

DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: Mr. Abhay Kumar Singh with Mr. Ashneel Nand - for the Plaintiff

Mr. Isireli Fa - for the Defendant

Date of Ruling: 03^rd May, 2017

RULING
(Application seeking Vacant Possession pursuant to
s169 of the Land Transfer Act Cap 131)

INTRODUCTION

1. The Plaintiff by his Originating Summons dated 01^st April, 2016 is seeking an Order under Section 169 of the Land Transfer Act Cap 131 for vacant possession of the land and premises comprised in Certificate of Title No. 16357 being Lot 11 on DP No. 4042 containing an area of one rood seven perches and one tenth of a perch situated in the District of Serua; AND
2. The costs of the Application be paid by the Defendant.
3. There are 4 (Four affidavits filed before the Court:
   1. Affidavit in Support of Avin Prakash filed on 01^st April, 2016- (“Plaintiff’s Affidavit”);
   2. Affidavit of Francis Verma filed on 20^th May, 2016 (“Defendant’s Affidavit In Opposition”);
   100. Affidavit in Reply of Avin Prakash filed on 29^th September, 2016 (“Plaintiff’s Affidavit”); and
   4. Affidavit of Ryan Macdonald filed on 22^nd September, 2016 (in support of Defendant’s case).
      

PRACTICE and PROCEDURE

4. The Plaintiff has made his application pursuant to Section 169 of the Land Transfer Act 1978, Cap 131.
5. A Section 169 application is a summary procedure for possession which enable various categories of persons to call upon a person in possession of a property to show cause why he or she should not give up possession. One such category, specified in paragraph (a) of the section is ‘the last registered proprietor of the land’. (The Plaintiff falls under this category).
6. Pursuant to Section 172 of the Act, the onus is on the Defendant to show cause why they are refusing to give up possession to the Plaintiff and why an order for possession should not be made against the Defendant.
7. The Plaintiff is the registered proprietor in this instance as can be ascertained from the Certificate of Title No. 16357. The term “proprietor” is defined as the registered proprietor of land, or of any estate or interest therein in the Land Transfer Act. Hence the term “proprietor” follows within the ambit of the Section 169 application.
8. “The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:
   • (a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

9. Pursuant to section 172 of the Act the onus is on the Defendants to show cause why they refuses to give up possession to the Plaintiff and why an order for possession should not be made against them.

Plaintiff’s Case

10. (i) That he is the registered owner of the property comprised in Certificate of Title No. 16357 being Lot 11 on DP No. 4042.

(ii) That the Defendant has been occupying the said property as a trespasser.

(iii) That he had issued a notice to vacate through Quick Bailiff Service to the Defendant on the 10^th day of September 2015.

(iv) That the said notice was duly served onto the Defendant.

(v) That the Defendant has not vacated the property as to date and is occupying the said property illegally.

(vi) That the Defendant does not have any defence in this action and the Defendant refuses and/or neglects to vacate despite the notice given to him.

(vii) That the Defendant be ordered to give vacant possession of the said property in terms of the Originating Summons filed herein.

Defendant’s Case

11. (i) That he is in possession of and resident on, the property comprised in the Certificate of Title No. 16357 being Lot 11 on DP 4042.

(iii) That he had been occupying and residing at the said property on the instructions of Mr. Ryan McDonald the Registered Power of Attorney of the Owner, Mr Andreas Lestik and Mr Christopher James Donion of Sustainable Forest Industries Ltd who has negotiated with Mr McDonald of maintain and care for the Property.

(vi) That he further says that he is not occupying the said property illegally. The Defendant is a valid resident occupying the property by permission and instruction of Mr Ryan McDonald.

(vii) That he says that he has a claim against the Plaintiff, the details of which are set out below. He further says that he will be filling this claim shortly.

Defendant’s Cross Claim

(viii) That he is unaware of the transfer of the Property to the Plaintiff by the Owner Mr Andreas Lestik registered on 18 May 2007. Dealing documents 607000 and 607000 ‘A’ reflect the dealings.

(ix) That the Plaintiff has not provided any evidence of proper completion of the alleged Transfer Document pursuant to dealing document 809567. Registered 30/01/15.

(x) That the Plaintiff alleges the Transfer was executed in 2010.

(xix) That the Plaintiff alleges that he has discharged the caveat in favour of Fiji Revenue and Customs Authority. The FRCA have not been able to confirm how this arose.

(xi) That the Plaintiff alleges that he has paid all and taxes applicable to this property. The FRCA have not been able to confirm any payment of duty and taxes on the alleged Transfer of Title.

(xii) That the Plaintiff has misrepresented his actions and unlawfully transferred the Property to himself.

(xiii) That the Defendant is lawfully, resident at Lot 11 on DP 4042 and therefore seeks dismissal of the Plaintiffs application and on orders costs as the Plaintiff knowingly mislead the Defendant and this Court.

(xiv) That he asks the Court for rectification of the Title and a Declaration that the alleged Transfer dated 2010 and the Registration of that Transfer dated 30/01/15 is void and of not effect.

(xv) That they ask the Court to discharge the Caveat dated 18 December 2009. This Caveat is out of time with the Statute of Limitations preventing the caveator from claim for repayment more than 6 years from the debt being incurred.

ANALYSIS AND DETERMINATION

12. The First question for this court to determine is whether the Plaintiff has satisfied to this Court the pre-requisites of section 169 and 170 of the Land Transfer Act, Cap 131.

If, the answer to the above question is in affirmative, then the burden shifts to the Defendant where he is required to show cause in terms of his right to remain on the Plaintiff’s property and whether the Defendant has any arguable case before this Court, in terms of s.172 of the Land Transfer Act Cap 131?

13. The procedure under s.169 is governed by sections 171 and 172 of the Land Transfer Act (Cap 131) respectively which stipulates as follows:

"s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the Plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."

s.172. If a person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit."

(Underline is mine for emphasis)

14. In this case, the Plaintiff must first comply with the requirements of section 169 of the Land Transfer Act cap 131, which are stated hereunder as follows:
    • (a) The first requirement or the first limb of section 169 is that the applicant must be the last registered proprietor of the subject land.
    • (b) The second is that the applicant be a lessor with power to re-enter where the lessee or tenant is in arrears; and
    • (c) The third is where a lessor against a lessee or tenant where a legal notice has been given or the term of the lease has expired. The second and third limb of section 169 does not appear to apply in that the defendant is not the plaintiff's tenant who is in arrears and/or the term of the lease has expired.

(Underline for emphasis)

15. In the instant case, the first limb of s169 applies.
16. However, the Defendant is alleging fraud on the part of the Plaintiff. The Defendant’s contention is that he was unaware of the transfer of the property to the Plaintiff by the Owner Mr. Andreas Lestik registered on the Certificate of Title No. 16357.The Defendant is alleging that the Plaintiff has misrepresented his actions and unlawfully transferred the property to himself. Further, the Defendant stated that he is in lawful resident of the property and sought for the dismissal of the Plaintiff’s application before this Court.
17. The Defendant also submitted discrepancy of signature of the vendor in the purported Sale and Purchase Agreement and the purported Transfer documents and calls into question the authenticity of either documents in light of the assertion by the Plaintiff and Ryan Macdonald that Mr. Lehestik did not transfer the property to the Plaintiff.
18. According to the Defendant, the Plaintiff claims that he is now the registered proprietor of the property as he had purchased the property from Mr. Lehestik (Former proprietor and owner), pursuant to a transfer signed on the 05^th January, 2010, but registered only on the 30^th January, 2015, some 5 years later. Pursuant to the transfer, it is alleged by the Plaintiff that he had paid Mr. Lehestik the sum of $75,000 for the property.
19. In the affidavit deposed on 14^th September, 2016, Mr. Macdonald as the power of attorney holder for Mr. Lehestik, disputes any transfer of the property to the Plaintiff and states that any such transfer was done fraudulently and without the authority and knowledge of Mr. Lehestik.
20. Court’s attention has also been drawn to a Writ filed in Civil Case No. HBC 235 of 2016 by Mr. Lehestik against the Plaintiff (Avin Prakash). In this case, Mr. Lehestik is alleging that he had no time transferred the property to the Plaintiff (Avin Prakash) and categorically states that he has not been paid, nor has he received any monies from the Plaintiff pursuant to the alleged transfer.
21. The Plaintiff in his Affidavit in Reply filed on 29^th September, 2016 confirms entering into a Sale & Purchase Agreement and witnessed by Mr. Rudra Nand in his capacity as a Barrister & Solicitor on 22^nd December, 2009. The transfer was also duly executed by Mr. Andres Lehestik on 05^th January, 2010 and witnessed by the Solicitor. Both documents are annexed and marked as ‘A’ and “B’ respectively.
22. The Certificate of Title No.16357 filed as annexure “A” within the Plaintiff’s Affidavit in Support confirms that the property was transferred from Andres Lehestik to Avin Prakash (Plaintiff) on 30^th January, 2015. Folio No. 809567 refers.
23. Sections 38 and 39 (1) of the Land Transfer Act, as set out hereunder can be regarded as the basis of the concept of “indefeasibility of title” of a registered proprietor. Under Torrens System of land law the registration is everything and only exception is fraud;

<220#8220;38. 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.

“39-(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium if the register, constituted by the instrument of title thereto, but absolutely free from all other encumbrances whatsoever except...

His Lordship Gates, succinctly stated the principles in relation to fraud andndefeasibility of t of title in the case of Prasad v Mohammed (2005) FJHC 124; HBC 0272J.1999L (03.06.2005) as follows-

[13] In Fiji under the Torrens system nd reation, the registegister iser is everything: Subramani & Ano v Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud ttle to land is that ahat as registered with the Register of Titles under the Land Transfer Act [see sections 39, 40, 41, and 42]: Fels v Knowles [1906] NZGazLawRp 66; [1906] 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

25. In Sigatoka Builders Ltd v Pushpa Ram & Ano. (Unreported) Lautoka High Court Civil Action No. HBC 182.01L, 22 April 2002 the Court held in relation to Fraud: sufficiency of evidence;

“Though evidence of fraud and collusion is often difficult to obtain, the evidence here fails a good way short of a standard requiring the court’s further investigation. In Darshan Singh v Puran Singh [1987] 33 Fiji LR 63 at p.67 it was said:

“There must, in our view, be some evidence in support of the allegation indicating the need for fuller investigation which would make Section 169 procedure unsatisfactory. In the present case the appellant merely asserted that he had paid the money for the purchase of the property. This was denied by both Prasin Kuar and the respondent. There was nothing whatsoever before the learned judge to suggest the existence of any evidence, documentary or oral, that might possibly assist the appellant in treating the case as falling within the scope of Section 169 of the Land Transfer Act and making an order for possession in favour of the respondent.”

In that case it was also held that a bare allegation of fraudRam Devi v Satya Nand Sharma & Anor. [1985] 31 Fiji LR 130 at p.135A. A threshold of evidence must be reached by the Defendant before the Plaintiff can be denied his summary remedy. In Wallingford v Mutual Society [1880] 5 AC 685 at p. 697 Lord Selbourne LC said:

“With regards to fraud fraud <160;ofh any Court ough ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No singlerial faal fact is condded uin a manner which would enable any Court to underunderstandstand what it was that was alleged to be fraudulent.”

It is clear from the above mentioned judicial decisions that a bare allegation of fraud does nount by itself tolf to a complicated question of fact, making the summary procedure inappropriate.
27. Is case Defendant questquestions ions the Plaintiff’s title to the property. His contention is that the previous owner of the property Mr. Lehestik disputes any transfer of the property to the Plaintiff and such transfer was done fraudulently and without the authority and knowledge of Mr. Lehestik.
28. The Defendant was appointed a care taker of the property by Mr. Macdonald who was the Power of Attorney Holder for the owner, Mr. Lehestik. After a careful reading of the Power of Attorney, I could not ascertain whether any specific provision authorised the Power of Attorney Holder to appoint the Defendant as the caretaker of the property. Further, even it empowered any appointment, then that appointment would have lapsed when the property was allegedly transferred to the Plaintiff, Avin Prakash on 30^th January, 2015. The perusal of the Certificate of Title No. 16357, confirms the transfer of ownership from Andres Lehestik to Avin Prakash registered at folio Nos. 60700 and 809567 respectively.
29. There is no affidavit evidence filed in the current case before this Court by the previous property owner/Proprietor Mr. Andres Lehestik alleging ‘Fraud’ against the Plaintiff instead an affidavit filed by the Power of Attorney Holder, Ryan Macdonald.
30. Court’s attention was drawn to a pending Civil Case HBC No. 235 of 2016 - Lehestik & others –v- Avin Prakash & Ano. The substantive cause of action therein is alleging ‘Fraud’ and breach of Section 41 of the Land Transfer Act, on the part of the Defendant, Avin Prakash. The Court will hear and Determine if the allegation of ‘Fraud” has been established in this case on the part of the Defendant, Avin Prakash.
31. In the current case before me, the Plaintiff is seeking an order for ‘Vacant Possession in terms of S.169 of the Land Transfer Act, Cap 131 and the Defendant is opposing the application again alleging ‘Fraud’ on the part of the Plaintiff. It is noted that there are two (2) cases filed in Court simultaneously alleging ‘Fraud” on the part of the Plaintiff, Avin Prakash.
32. Although the Defendant has alleged ‘Fraud”, and which is also the substantive matter of the said action instituted by the Defendant, I find that there are no complicated questions of fact to be investigated in the current case before me. The procedure under Section 169 is most appropriate herein and is accordingly applied herein. Reference is made to the case of Ram Narayan –v- Moti Ram (Civ. App. No. 16/83 FCA) Gould J.P. said-

“...the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

33. In Conclusion, I proceed to grant the following orders-

ORDERS

1. The Defendant to give vacant possession of the land and Premises comprised in the Certificate of Title No. 16357 being Lot 11 on DP No. 4042 to the Plaintiff in one (1) months’ time on or before the 03^rd June, 2017.
   
2. Execution is hereby suspended till the 03^rd June, 2017.
   

100. Costs is summarily assessed against the Defendant at $750 and to be paid within 14 days.
     

4. Orders accordingly.
   

Dated at Suva this 03^rd day of May, 2017

...............................................................
MR VISHWA DATT SHARMA

Master of High Court, Suva

cc. Kholi & Singh, Suva
Fa & Company, Suva.