Gupt v Baleitavua [2019] FJHC 7; HBC2.2018 (23 January 2019)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 2 OF 2018

IN THE MATTER of an application

by the Plaintiff under section 169

of the Land Transfer Act.

BETWEEN: JAY KUMAR GUPT aka JAY KUMAR

PLAINTIFF

AND: SEVANAIA BALEITAVUA

DEFENDANT

Appearance: Plaintiff - Mr. Chand A.

Defendant - Mr. Bale A.

Date of Hearing : 23^rd January, 2019(9.30 am)

Date of Judgment : 23^rd January, 2019(3 pm)

JUDGMENT

Introduction

[1] The Plaintiff who is the last registered lessee of iTaukei Lease No 31557 filed this action seeking eviction of the Defendant from the land described in said lease (The Land) in terms of Section 169 of the Land Transfer Act, 1971. The Defendant who is in possession of the land state that he was not granted the lease by iTLTB due to a fraud by iTLTB. The Plaintiff had obtained the lease from one Nand Lal who was the previous lessee of the Land. The Defendant had also filed an action for fraud against Nand Lal, Plaintiff and also iTLTB. The Defendant states that he came to the possession of the Land, when the land was vacant. So, admittedly the Defendant is a trespasser to the Land irrespective of pending action for fraud. The Master had granted order for eviction of the Defendant after hearing of the application on 24.10.2018. A Notice of Appeal was filed on 13.11.2018. An affidavit of service of the Notice of Appeal was filed on 27.11.2018. A Notice of Motion seeking stay of the orders granted on 24.10.2018 by Master was filed on 26.11.2018. The hearing listed for today is motion for stay.

Analysis

[2] Master had delivered a final determination on 24.10.2018 in terms of extended jurisdiction regarding a contested application for eviction made in terms of Section 169 of the Land Transfer Act, 1971. In terms of Section 170, the Defendant is granted minimum of 16 days to show that he has a right to possession on the land in terms of Section 172 of the said Act.

[3] The Plaintiff has proved his title and Defendant had failed to prove any right to remain in possession, though he is challenging the title of the Plaintiff, through fraud.

[4] The application for eviction was filed on 22.01.2018, a year ago. Master allowed the eviction after contested hearing on 24.10.2018

[5] In the said determination following orders were made:

“a. The Defendant to deliver to the Plaintiff within one month of this Judgment, immediate vacant possession of the property contained in and described as iTaukei Lease no 31557 being Navotua Subdivision showing Lot 3 on Plan No B. 220 in the Tikina of Bua, Province of Bua with an area of 24 A .1 R. 00P.

2. Costs for the Plaintiff summarily assessed in the sum of $800, to be paid within 28 days of this judgment.”

[6] A Notice of Appeal was filed against the said orders on 13.11.2018. It needs to be filed within 21 days as it was an appeal from final determination.(see O.59. r9(a) of High Court Rules of 1988(HCR))

[7] In terms of O.59 r 17(1) of HCR, an affidavit of service needs to be filed within 7 days and within 21 days of the filing of the Notice of Appeal a summons for direction needs to be filed.(see O.59 r.17(2) of HCR )

[8] Now it is more than 70 days from the date of filing of the Notice of Appeal, yet no summons for directions filed. The failure to file summons for direction is fatal for the appeal in terms of O59. r.17 (3) of HCR which states as follows

‘(2) The appellant shall , within 21 days of the filing of notice of appeal, file and serve a summons returnable before a judge for directions and a date for the hearing of the appeal.

(3) If this rule is not complied within, the appeal, is deemed to have been abandoned.’(emphasis added)

[9] So the failure to file summons for direction within stipulated time, is that there is no appeal against the Master’s decision delivered on 24.10.2018.

[10] The counsel for the Defendant sought directions from the court regarding the Appeal, but it is deemed abandoned long time ago and no direction can be made against an Appeal that is deemed abandoned.

[11] The Notice of Motion filed on 26.11.2018 sought following orders:

1. That the orders granted on the 24^th October, 2018 by the Learned Master of the High Court in Labasa,.......in this action be stayed pending the final determination of the Appeal.’ (emphasis added)

[12] Since the appeal is deemed abandoned the above order cannot be granted as there is no pending appeal and application for stay is refused.

[13] Without prejudice to the above, grant of stay of Maser’s decision by a judge is discretionary remedy. This action was filed by the Plaintiff in 22.01.2018. The Plaintiff is the last registered lessee of iTaukai Lease 31557 according to the memorial recorded on the lease.

[14] The Privy Council held the indefeasibility under Torrens System as follows in Britis> Americaerican Cattle Co v Caribe Farm Industries Ltd [1998] 1 WLR a> held, (per Lord Brd Browne-Wilkinson)

‘Although the details of the Torrens system vary from jurisdiction to jurisdiction, it is the common aim of all systems to ensure that someone dealing with the registered proprietor of title to the land in good faith and for value will obtain an absolute and indefeasible title, whether or not the title of the registered proprietor from whom he acquires was liable to be defeated by title paramount or some other cause’

[15] The lease comprised in iTaukai Lease 31557 was transferred to the Plaintiff by a third party who initially obtained the lease. Neither the said third party nor the Lessor is alleging fraud against the Plaintiff. In such a situation a mere allegation of fraud against the title holder, by Defendant, should not give any right to him to occupy the Land. He is not a person who is legally entitled to possession in terms of Section 172 of Land Transfer Act, 1971.

[16] The Defendant in the affidavit in opposition at paragraphs 16, 17 and 18 admitted that he is a trespasser of the Land. He does not have any title and mere allegation of fraud will not grant him right to possession of the Land.

[17] In the words of the NZ Supreme Court in >26 N.Z.L.R.604, 620;

“The cardinal principle of the statute is that the registeeverything, and that except in cases of actual fraud on the part of the person dealinealing with the registered proprietor such person upon the registration of the title under which he takes from the registered proprietor has indefeasible title against all the world. Nothing can be registered the registration of which is not expressly authorized by the statute.”(“By statute” would be more correct). “Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest or in the cases in which registration of a right is authorized, as in the case of easement or incorporeal rights, the rights registered.”

Now fraud clearly implies some act of dishonesty. Lord Lindley in Assets Co. v Mere Roihi^[[1]states that: “Fraud in these actions” (i.e., actions seeking to affect a registered title) “means actual fraud, dishonesty of some sort, not what is called constructive or equitable fraud- and unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud.”

If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear^[2]...... The act must be dishonest, and dishonestly must not be assumed solely by reason of knowledge of an unregistered interest....’ (emphasis added)

[18] When considering the above legal position the Defendant is not entitled to stay or the orders delivered by the Master on 24.10.2018. If this is allowed any party would be able to make an allegation of fraud and remain in possession till that is determined, without any right to remain.

[19] In Fiji Supreme Court case New World Ltd v Vanua Levu Hardware [Fiji] Ltd [2016] FJSC 29; CBV0004.2016 (4 August 2016) considering the factors to be considered in granting a stay and held,

‘In arriving at a decision as to whether the Petitioner’s circumstances are sufficiently exceptional for the grant of stay relief pending appeal, it is necessary to consider the relevant principles set out in the Court of Appeal in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd CAppeal ABU 0011.04S, 18th March 2005.

“(a) Whether, if no stay is granted, the applicaplicant’s right of appeal will be rendered nugatory (this is not determie). See Philip Morris (NZ) Ltd v. Liggetiggett & Myers Tobacco Co. (NZ) Ltd [1972] 2 NZLR 41(CA) l.

(b) Whether ther the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo.”

[20] If the stay is granted the Defendant who is admittedly a trespasser to the land will continue the possession as against the person legally entitled to the fruits of the decision of the Master. If the stay is granted the Defendant will further frustrated from taking possession of the Land. Under the law when he cannot show a right to remain in possession he should be evicted immediately.

[21] It will be inordinate delay considering that action was filed one year ago for vacant possession and order for vacant possession was made on 24.10.2018 and further delay to Plaintiff for the enjoyment of fruits of judgment is not warranted.

[22] The bona fides of the appellants can be considered in the light of his failure to comply with mandatory provision to file summons for directions within 21 days from the Notice of Appeal. This shows that the Defendant was not diligent to prosecute the appeal but only seeks to delay the inevitable through filing an appeal. So this factor does not support the Defendant.

[23] There are no effects on the third parties and the issue raised by the Defendant is not novel.

[24] There is no public interest.

[25] The overall balance of convenience and status quo should not allow a trespasser to continue illegal occupation over the lessee who had obtained the registered leasehold rights to the Land under Torrens System.

Conclusion

[26] The motion seeking stay of the proceedings till final determination of the appeal is struck off as the appeal is deemed abandoned. Without prejudice to that considering merits the Defendant who does not have any right to possess the Land cannot possess the Land over the Plaintiff who is the registered lessee for the Land.

Final Orders

1. The Motion for stay is struck off.
2. The cost of this application is summarily assessed at $750 to be paid within 14 days by the Defendant to the Plaintiff.
   

Deepthi Amaratunga

Judge

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^[1] [1905] A.C. 176,210
^[2] This statement was cited in Wal Davies [rd">[2007] NZCA 51; [2007] NZCA 51; [2007] 2 NZLR 508; (2007) 8 NZCP NZCPR 1 at [32] (CA) per Hammond J for the Court (leave to appeal refused: Supreme Court of New Zealand, SC 20/2007, 13 June 2007, Tipping, McGrath and Anderson JJ; [2007] NZSC 43).