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Madhavan v Kunanitu [2018] FJHC 128; HBC39.2016 (15 February 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 39 of 2016
Civil Action No. HBC 40 of 2016


BETWEEN: PHILIP SATYANAND MADHAVAN of Suva, PITA CILI of Nausori, VILIAME VAKASAUSAU of Suva and PRITAM SINGH of Lautoka and Ministers of Religion and TRUSTEES FOR THE GENERAL CONFERENCE OF THE ASSEMBLIES OF GOD OF FIJI.


1ST – 4TH PLAINTIFFS


AND: THE GENERAL CONFERENCE OF THE ASSEMBLIES OF GOD OF FIJI a Religious Body registered pursuant to the Religious Bodies Registration Act and having its principle place of business at 85 Robertson Road, Suva.


5TH PLAINTIFF


AND: AISAKE KUNANITU of Samabula, Suva, Religious Minister and TRUSTEES for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI.


1ST DEFENDANT


AND: WILLIAM GREEN KUNANITU of Lot 19 Tokai, Matana Street, Nakasi, Religious Minister and TRUSTEES for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI.


2ND DEFENDANT


AND: KINI TUIDRIVA of Suva and TRUSTEE for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI.


3RD DEFENDANT


AND: JIOSEFATI VAKALOLOMA of Suva and TRUSTEE for the EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI.


4TH DEFENDANT


AND: EVERGREEN CHRISTIAN CENTRE OF THE ASSEMBLIES OF GOD OF FIJI a Religious Body registered pursuant to the Religious Bodies Registration Act and having its principle place of business at Lot 36 and 37, Joyce Road, Laqere.


5TH DEFENDANT


BEFORE: Master Vishwa Datt Sharma


COUNSELS: Mr. Isireli Fa - for the Plaintiff

Mr. Naco - for the Defendants


Date of Ruling: 15th February, 2018


RULING
(Application seeking Vacant Possession pursuant to
S.169 of the Land Transfer Act Cap 131)


  1. INTRODUCTION

HBC 39 of 2016:


  1. These are the Plaintiff’s applications for the following Orders:

HBC 40 of 2016:


(iii) A Declaration that the Defendants have not shown cause why they should not give their possession to the Plaintiffs’ property of Lot 37 on DP 3291 Joyce Place, off Pilling Road, Laqere, being CT No. 13442.
(iv) An order that the Defendants give immediate vacant possession of the Plaintiff’s property at Lot 37 on DP 3291 Joyce Place, off Pilling Road, Laqere, being CT No. 13442.
(v) An order that costs of this application be paid by the Defendants.
(vi) Any other relief that this honourable court may deem just.
  1. The Plaintiffs’ application is made pursuant to Section 169 of the Land Transfer Act.
  2. The Originating Summons and Affidavit in Support has been served on the Defendants who have acknowledged service by entering appearances in this matter.
  3. There are three (3) Affidavits filed before this court.
  1. PRACTICE and PROCEDURE
  1. The Plaintiff has made his application pursuant to Section 169 of the Land Transfer Act 1978, Cap 131.
  2. 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).
  3. 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.
  4. 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.
  5. “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:

(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.”

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

PLAINTIFF’S CASE

  1. The 1st – 4th Plaintiffs are the Trustees of the General Conference of the Assemblies of God Church of Fiji, the 5th Plaintiff. The 5th Plaintiff is a religious body registered under the Religious Bodies Registration Act. The 5th Plaintiff is the registered proprietor of CT 13441 and CT 13442. The 1st – 4th Defendants are the Trustees of an organization known as the Evergreen Christian Centre of the Assemblies of God of Fiji, the 5th Defendant herein. The 5th Defendant is a religious body registered under the Religious Bodies Registration Act.
  2. At all material times the 1st – 5th Defendants were members of the 5th Plaintiff. The 5th Defendant was an affiliate and local church under the Central Eastern Division Council of the 5th Plaintiff. At this time, the 1st – 5th Defendants, whist being members of the 5th Plaintiff were in occupation of CT 13441 and CT 13342 upon which was the premises that was the church. The Church was used as a worship premises for the 1st – 5th Defendants. The Church premises and the two, CT’s 13441 and 13442 belonged to the 5th Plaintiff and was registered in the name of the 1st – 4th Plaintiffs as trustees of the 5th Plaintiff. On the 25th of September 2011, the 1st – 4th Defendants as Trustees of the 5th Defendant at an Extra Ordinary Meeting of the 5th Defendant resolved to sever their association with the 5th Plaintiff based on their differences in Church doctrine.
  3. The 1st – 4th Defendants upon severing their association/affiliation from the 5th Plaintiff, proceeded to claim ownership of Certificate of Title 13441 and 13442 and resolved to transfer the two CT’s from the Trustees of the General Conference of the Assemblies of God of Fiji (5th Plaintiff) into the Trustees of the Evergreen Christian Center of the Assemblies of God of Fiji (5th Defendant).
  4. The Plaintiffs then entered into correspondences with the 1st – 5th Defendants seeking them to reconsider their position but the Defendants refused. The 5th Plaintiff then had no alternative but to issue the 1st – 5th Defendants with a 1 (one) month’s Notice to vacate CT 13441 and CT 13442 and the premises thereon pursuant to Section 169 of the Land Transfer Act.
  5. The Defendants have failed to vacate the premises on CT 13441 and CT 13442 resulting in the current proceedings being instituted by the Plaintiffs seeking the Defendants vacant possession of certificated of titles Ct 13441 and CT 13442 and from the premises thereon.

DEFENDANT’S CASE

  1. The Defendants have refused to comply with the Plaintiff’s Notice to Vacate. The Defendants rational for failing to vacate the two certificated of titles are set out in the Affidavit of Aisake Kunanitu at paragraphs 7, 8, 9, 14, 18, 20, 21, 24, and 25 and states as follows-
  2. “7. That I wish to state that both the properties CT13441 and CT 13442 were first acquired as vacant lots from the Nasinu Land Purchase Company Limited in 1977 and were bought with funds raised solely by the members of the 5th Defendant church themselves.”

“8. That the subsequent development of the properties including the construction of the buildings was done through the efforts of the members themselves and there was no contribution at all from the 5th Plaintiff organisation.”

“9. That as to the issue of ownership, the members of the congregations themselves are the rightful owners since they contributed to the initial acquisition and development of the property.”

“14. That ... I wish to state that we as a church had adopted this view because of our belief that the property belonged to that members who had contributed financially to the acquisition of the property and its subsequent development and who had in good faith given it to the Trustees of the AOG Fiji to hold in Trust in complaisance with the constitution.”

“18. That these were the reasons why it was communicated to the General Assembly of our intention to have the two properties transferred back to us as referred to in paragraph 12 because as far as we were concerned we were autonomous and voluntary members of the 5th Plaintiff organisation.”

“20. That ... I wish to state that although we have moved out of the General Conference of the Assemblies of God of Fiji, we maintain our rights to the property in that we never received any kind of contribution or assistance at all from the Plaintiffs in the acquisition and development of the property.”

“21. That ... I wish to ask the court that due consideration be given to the sacrifice and efforts put in by the members to purchase the land and finance the development to its current status.”

“24. That the congregation has occupied the two properties since 1977 and has contributed immensely to its upkeep and maintenance sacrificing their personal needs for the cost of development of the two properties.”

“25. That ... I firmly; believe that it is only proper that due recognition be made of the equity ownership of the defendants congregation members in the property and that the Plaintiffs compensate the Defendants according to the valuation before we vacate the properties.”

ANALYSIS AND DETERMINATION

  1. 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 Defendants where they are required to show cause in terms of their right to remain on the Plaintiff’s property and whether the Defendants have any arguable case before this Court, in terms of s.172 of the Land Transfer Act Cap 131?

  1. 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)

  1. 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:

(Underline for emphasis)

  1. In the instant case, the first limb of s169 applies. The Plaintiff’s action falls under Section 169 (a) applies to the Plaintiffs as the 1st- 4th Plaintiffs are the last registered proprietors of Certificate of Titles CT13441 and CT 13442 as trustees of the 5th Plaintiff. However, the Defendants vigorously oppose this application and their contention are as follows-

“That the subsequent development of the properties including the construction of the buildings was done through the efforts of the members themselves and there was no contribution at all from the 5th Plaintiff organisation. As to the issue of ownership, the members of the congregations themselves are the rightful owners since they contributed to the initial acquisition and development of the property. That the members as a church had adopted this view because of their belief that the property belonged to that members who had contributed financially to the acquisition of the property and its subsequent development and who had in good faith given it to the Trustees of the AOG Fiji to hold in Trust in compliance with the constitution. These were the reasons why it was communicated to the General Assembly of our intention to have the two properties transferred back to us as referred to in paragraph 12 because as far as the members were concerned they were autonomous and voluntary members of the 5th Plaintiff organisation.”

The Defendants further contended that they have a right to remain in occupation of the property by virtue of a resulting or a constructive trust and also in Equity having being occupants of the property from its inception. That the Defendants connection to the properties is not merely as contributors to the purchase and the development but they have become beneficiaries under the Trust where the Plaintiffs hold the property as Trustees.

The Defendant’s also brought to this Court’s attention through their written submissions that the registration of the names of the Trustees on the Titles of the two (2) properties was done in faithful compliance to the Church Constitution and their doctrinal beliefs.

At the close of the Defendant’s submissions, the Counsel said “we now have a situation where the Plaintiffs now possess a legal Title whilst the Defendants have an Equitable claim to the property due to their occupation and the funds they had expanded in the initial purchase and the subsequent development of the property. In the event that the Court decides to accept the Plaintiff’s contentions and orders they seek, the Defendants submit that the Court ought to accept the valuation of the properties and allow the Defendants to be compensated for their contributions to the properties before they move out of the properties.

  1. I have thoroughly perused the Certificate of Titles of both properties CT 13441 and 13442 marked as Annexures ”Ä” contained within the Affidavit deposed by Viliame Vakasausau on 08th February, 2016 and filed in Court on 18th February, 2016.
  2. The Certificate of Title No. 13441 was transferred to the Trustees of the Assemblies of God of Fiji on 14th August, 2008. The Certificate of Title No. 13442 was transferred to the Trustees of the Assemblies of God of Fiji on 16th December, 1977.
  3. Therefore, there cannot be any dispute that the Plaintiffs are the registered proprietors as Trustees of the Assemblies of God of Fiji in both the Certificate of Titles No. 13441 and 13442 respectively. Further, this action rightfully has been commenced by the Trustees of the Assemblies of God of Fiji against the Defendants.
  4. After the Plaintiff has established the first limb test of section 169 that is that the Plaintiff is the registered proprietor of the properties Contained and described In the Certificate of Title Nos. 13441 and 13442 accordingly. Then the Defendants bear the onus of showing cause as to why vacant possession should not be granted by the Defendants to the Plaintiffs.
  5. Pursuant to section 172 of the Land Transfer Act Cap 131. The Defendant needs to satisfy this court on affidavit evidence that she has a right to possession. (Case of Muthusami v Nausori Town Council F.C.A. 23/86 refers).
  6. There is no need to prove conclusively a right to possession and it is sufficient for the Defendant to prove that there is some tangible evidence establishing the existence of a right or of an arguable defence. (Case No. 152 of 1987- Morris Hedstrom Ltd v Liaquat Ali refers).
  7. The Defendants have raised the Defence of Equitable Interest in both the properties CT 13441 and CT 13442.
  8. Equitable Defence was formerly a defence which was only available in a court of equity. With the procedural merger of law and equity however, equitable defences can be raised along with legal defences in same action.
  9. The Defendants at all material times were members of The General Conference of the Assemblies of God of Fiji. They were an affiliate and local church of The General Conference Assemblies of the Assemblies of God of Fiji and were governed and bound by the constitution of The General Conference of the Assemblies of God of Fiji.
  10. The 1st-5th Defendants passed resolutions on 25th September, 2011 severing their membership from the General Conference of the Assemblies of God of Fiji, the 5th Plaintiff and sought for the transfer of the two properties CT 13441 and CT 13442 from the 5th Plaintiff to the 5th Defendant.

It follows that the 1st-5th Defendants after severing their membership from the 5th Plaintiff’s Church are no longer part of the 5th Plaintiff, The General Conference of the Assemblies of God of Fiji.

  1. I have perused The General Conference of the Assemblies of God of Fiji Constitution and the By Laws 2013 within the Affidavit of Jone Sogovale annexed and marked as “A”.
  2. Reference is made to Article XV at Section 1 which deals with “property”.

1. (iii) - All “Church property purchased by the Local Assembly shall be held in trust in the name of The General Conference of the Assemblies of God of Fiji.

(iv) - All “church property” purchased by the Divisional Councils shall be held in trust in the name of the General Conference of the Assemblies of God of Fiji.

(v) All “church property” purchased by General Conference of the Assemblies of God of Fiji and/or the Executive committee shall be held in trust in the name of The General Conference of the Assemblies of God of Fiji.

(vi) All “church property” purchased by recognised Institutions of the Assemblies of God of Fiji shall be held in trust in the name of The General Conference of the Assemblies of God of Fiji.

  1. The Affidavit in Reply of Rev Aisake Kunanitu deposed on behalf of the Defendants at paragraphs 20-26 inclusive, stated in summary that they moved out of the General Conference of the Assemblies of God of Fiji. Although they have occupied the two properties since 1977 and contributed immensely with sacrifices to maintain and develop the two properties, no contribution or assistance was received from the Plaintiffs in the acquisition and development of the property. That due compensation should be paid to the Defendants by the Plaintiffs if they succeed in this case in exchange for the properties.
  2. The Defendants in the instant case should have been aware of the fact and it is quite obvious that when the members as Defendants made any contributions, sacrifices to maintain and develop the church properties, it was in the interest of the church, its members and the followers of the church holistically but not for individual benefit whatsoever.
  3. I note that the 1st Defendant’s letter written on 30th December, 2011 advised the General Secretary of the 5th Plaintiff that he and his followers were of the view that the Evergreen Christian Centre Assemblies of God Church property was the property of the members of the same and accordingly steps would be taken to transfer the Certificate of Title Nos. 13441 and 13442 respectively.
  4. Further, in terms of the Church Constitution and By-Laws, all the properties that is under the Trusteeship of the 5th Plaintiff should be administered pursuant to the Assemblies of God of Fiji Constitution and the By-Laws.
  5. The Defendants were served with Notice to Quit on 22nd July, 2015 and despite the Notice served, have failed to give vacant possession of the properties and continues to occupy the same.
  6. It is for the Defendant to show cause why they are refusing to give immediate vacant possession of the land to the Plaintiffs and must be able to show Court some tangible evidence of their right to the possession of the land, which I find the Defendants have failed to do so to the extreme.
  7. I further find that the Defendant has failed to raise any triable issues nor did they have any legal or equitable right to continue occupying the Plaintiff’s property whatsoever. By simply appraising court that they have immensely contributed towards the church to its maintenance and development is not sufficient evidence per se to prove the defence of the equitable right and defence raised herein. This court needed some tangible evidence of their right to possession to the two properties CT 13441 and CT 13442 respectively.
  8. Accordingly, the Defence of Equitable Right and/or interest raised by the Defendants fails.
  9. I must reiterate and stress that the summary procedure has been provided in the Land Transfer Act. Cap 131 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.

This applies in the current case before the court and the Plaintiffs are entitled to have their application decided summarily accordingly.

  1. The Plaintiff is for the purposes of section 169 are the last registered proprietor and Lessee of the said property and accordingly has the locus standi to commence or bring in this proceeding against the Defendant.
  2. Sections 39-42 of the Land Transfer Act, and under the Torrens system of land registration which operates in Fiji, the title of the registered proprietor is indefeasible unless actual fraud is proved. (Case of Subramani v Sheela [1982] FJCA 11; [1982] 28 FLR 82 (2 April 1982); Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p. 210; Fels v Knowles 26 N.Z.L.R. 608, at p 620 refers). In this case there is no question of fraud raised.
  3. In Subramani (supra) the Fiji Court of Appeal (per Gould V.P.’ Marsack, J.A., and Spring J.A.) states as follows-

‘The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v Knowles 26 N.Z.L.R. 608. At page 620 it is said;-

“The cardinal principle of the statute is that the register is everything, and that, except in case of the actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against the entire world.”

  1. I find that the Defendants have failed to show any cause including a right to possession or have tangible evidence establishing a right or supporting an arguable case for such a right that must be adduced in terms of section 172 of the Land Transfer Act Cap 131.
  2. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause “was immediately shown.
  3. It has become appropriate now and I am inclined to order costs against the Defendants in this case bearing in mind the time spent in court in representation of the case, usage of court resources and time and so forth. Cost is summarily assessed at $1,000 against the Defendants in total and to be paid within 14 days’ time frame to the Plaintiffs.
  4. In Conclusion, for the aforesaid rational ,I have no other alternative but to make the following final Orders against the Defendants-

FINAL ORDERS

  1. An order that the Defendants give vacant possession of the Plaintiffs’ property at Lot 36 on DP 3291 Joyce Place, off Pilling Road, Laqere, being CT No. 13441 to the Plaintiffs in one calendar months’ time on or before 15th March, 2018 @ 4 pm.
  2. An order that the Defendants give immediate vacant possession of the Plaintiff’s property at Lot 37 on DP 3291 Joyce Place, off Pilling Road, Laqere, being CT No. 13442 in one calendar months’ time on or before 15th March, 2018 @ 4 pm.
  1. Execution is hereby suspended till the 15th March, 2018 @4pm.
  1. The Defendant to pay Costs to the Plaintiffs summarily assessed at $1,000 and to be paid within 14 days’ time frame.
  2. Orders accordingly.

Dated at Suva this 15th day of March, 2018

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

Master of High Court, Suva


cc: Fa & Company, Suva.
Naco Chambers, Suva.

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