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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 77 of 2019
BETWEEN : FIJI SUGAR CORPORATION LIMITED a limited liability company duly incorporated in Fiji and having its registered office at Drasa Avenue, Balawa, Lautoka, Fiji.
Plaintiff
A N D : JOHN THAGGARD of Fmpound, Rarawai Mill, Rll, Rakiraki.
First Defendant
A N D : JOSAIA DAU of FSC Compound, Rarawai Mill, Rakiraki. Second Defendant Before : Master U.L. Mohamed Azhar Counsels: Ms. S. Daven for the Plaintiff Date of Hearing: 17.02.2020 JUDGMENT The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration
would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the
proprietor. (Emphasis added). I cannot usefully add anything to the reasons that he and my brothers McTiernan and Walsh have given for dismissing this appeal. I
would only observe that the Chief Justice’s aphorism, that the Torrens system is not a system of registration of title but a system of title by registration, accords with the way in which Torrens himself stated the basic idea of his scheme as it became law in South Australia in 1857. In
1862 he, as Registrar- General, published his booklet, A Handy book on the real Property Act of South Australia. It contains the
statement, repeated from the South Australian Handbook, that: “.........any system to be effective for the reform of the law of real property must commence by removing the past accumulations, and then establish
a method under which future dealings will not induce fresh accumulations. This is effectuated in South Australia by substituting ‘Title by Registration’ for ‘Title by Deed’...” Later, using language which has become familiar, he spoke of “indefeasibility of title”. He noted, as an important benefit
of the new system, “cutting off the retrospective or derivative character of the title upon each transfer or transmission, so as that each freeholder
is in the same position as a grantee direct from the Crown’’. This is an assertion that the title of each registered proprietor comes from the fact of registration, that it is made the source
of the title, rather than a retrospective approbation of it as a derivative right. (Emphasis added). ‘The cardinal principle of the statute is that the register is everything, and that, except in case of 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 all the world. Nothing can be registered the registration of which is not expressly
authorized by the statute.’ The indefeasibility of title under the Land Transfer Act is well rised; and the prin principles clearly set out in a judgmenthe New Zealand Court of Appeal dealing with provisions of t of
the New Zealand Land Transfer Actr Act which on that point is substantially the same as the Land Transfer Act #160;of Fiji. The ca F160;Fels v. Knowles 26 N.Z.L.R. At pa0 it id: "The cardinal principle of the statustatute is that the register is everything, and that, except in case of acfraudhe pa the pehe
person dealing with the registered prop proprietorietor, such person, upon registration of the title under which he takes from the
registered proprietor, has an indefeasible title against all the world." “At first sight, bottionsd seesuggeat an Applicant should first irst obtaiobtain the Director's written consent prio prior to
r to the commencement of secti9 proceedings angs and exhibit it to his affidavit in support. However I favour Lyons J.'s approach in Parvati Narayan v Suresh Prasad&#sad  eported) Lad) LauHigh Court Civil Action No. HBC0275 of 1996L 15th August 1997 at p 4 insofar as his Lordshirdship found that
consent was not needed a sinc: "section 169 application (which iich is thes the ridd ridding off the land of a trespasser) is not a dealing of such a nature as requires
the Director's consent." This must be correct for the Director's sanction is concerned with who is to be allowed a State lease or powers over it, and not with
the riddance of those who have never applied for his consent. With respect I was unable to adopt the second limb of Lyons J's conclusion
a few lines further on where his lordship stated that the order could be made conditional upon the Director's consent. For if the
court's order of ejectment was not "a dealing" then such order would not require the Director's consent and the court would not be
subject to sec13. The court is nots not concerned with the grant of or refusal of, consent by the Director, provided such consent is given lawfully.
Consent is solely a matte the Director. The statutory regime appears to acknowledge edge that the Director's interest in protecting
State leases is supported by the court's order of ejectment against those unable to show cause for their occupation of the land which
is subject to the lease. The court is asked to make an order of ejectment against a person in whose favour the Director either, has
never considered granting a lease, or has never granted a lease. The ejectment of an occupier who holds no lease is therefore not
a dealing with a lease. Such occupier has no title. There is no lease to him to be dealt with. The order is for his ejectment from
the land. There is no need for a duplicating function, a further scrutiny by the Director, of the Plaintiff's application for ejectment
either before or after the judge gives his order”. "Under Section 172 the person summonsed may show cwhy he refused to give possession of the land if he proves to the satisfaction of
the JudgeJudge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour.
The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession
under Section 169 procedure. Thanot to say that finalfinal or inovertible proof of a&#f a right main in possession muon must be adduced. What is red is that somgiblngible
evidence establishingght or supr supporting an arguableuable case for such a right mu adduce>"i>(Emphasis asis addedadded) “..but the section continues that if the person summoned does show cause udge shall dismidismiss the summons; but then are added
the very wide words "or he may make any order and impose any terms he may think fit". These words must apply, though the person appeahas f to satisfy
the jthe judge,udge, and indeed are often applied when the judge decides that an open court hearing is required”. (Emphasis added). ".... 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". U.L.Mohamed Azhar Master of the High Court
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The Defendants are in person
Date of Judgment: 18.02.2020
01. The plaintiff summoned its two ex-employees – the defendants, pursuant to section 169 of the Land Transfer Act (Cap 131) to show cause why they should not give up vacant possession of official quarters they are occupying despite the notice
to vacate being served on them, after termination of their services by the plaintiff company. The summons seeks the following orders:
02. The summons is supported by an affidavit – the supporting affidavit sworn by Davendra Prasad – the Employment Relations
Manager of the plaintiff company. The supporting affidavit contains six annexures marked as “DP 1” to “DP 6” respectively. The annexure “DP 1” is the letter authorizing the deponent to swear the supporting affidavit on behalf of the plaintiff company. The annexure “DP 2” is the copy of Certificate of Title duly certified by the Registrar of Titles. The annexures “DP 3” and “DP 4” are the copies of two letters sent by the General Manager – Corporate Service of the plaintiff company to both defendants summarily
dismissing them from the service. The annexure “DP 5” and “DP 6” are the copies of two letters sent by the same manager of the plaintiff company to the defendants to quit the official quarters –
the subject properties in this matter.
03. The defendants, upon service of this summons, appeared in person and informed the court that, they applied for legal aid assistance
to contest this matter. The court granted them time and finally their application for legal aid was rejected. The defendants were
given further time thereafter to file their affidavit in opposition which they filed later. However, the defendants did not attach
any document with their affidavit. The plaintiff company thereafter filed the affidavit in reply sworn by the same officer who sworn
the supporting affidavit.
04. At hearing of the summons, the counsel for the plaintiff made oral submission based on all affidavits filed in this matter. The
defendants appearing in person relied on their respective affidavits. They further informed the court that, their grievance at Employment
Tribunal was heard and the ruling date has now been fixed.
05. The law and procedure on the summary eviction under the Land Transfer Act (Cap 131) have been settled in many cases by this court and the appellate courts and there is quite number of decisions in this area
which does not need much elaboration. However, it is necessary to briefly note the nature of the summary procedure enshrined in the
Land Transfer Act (Cap 131) and the duty of each party under that procedure. The Land Transfer Act (Cap 131) was introduced to Fiji in 1971 and it repealed the Land (Transfer and Registration) Ordinance (see: section 178 of the
Land Transfer Act). However, the other two legislations, namely Crown Land Act (now known as State Land Act), Native Land Act (now known as iTaukei
Land Act) continue to govern the lands fall under their purview. Both legislations were amended to bring them in line with the Land Transfer Act (Cap 131) which is based on the well-known Torrens System of Registration. The effect and application of the said system of registration,
that was generally applied in certain countries in Pacific, was explained in Breskvar v. Wall (1971-72) 126 CLR 376 and Barwick C.J stated at page 385 that:
06. In that same case Windeyer J. concurring with the Chief Justice stated at pages 399 and 400 that:
07. It was equally held in Fels and another v Knowles and another (1907) 26 NZLR 604 by Stout C.J at page 620 as follows:
08. Accordingly, the registration is everything and it is the registration that confers the title to a person so registered. It is
the title by registration and not registration of title. This system of registration cuts off the retrospective or derivative character
of the title upon each transfer or transmission, so as that each freeholder or proprietor is in the same position as a grantee direct
from the Crown/state. The registration is made the source of the title, rather than a retrospective approbation of it as a derivative
right. The only exception is the actual fraud, and in absence of such fraud as provided in sections 39 to 41 of the Land Transfer Act, the registered proprietor shall have an indefeasible title. This was established by the Fiji Court of Appeal in Subaramani v Sheela [1982] 28 FLR 82 (2 April 1982) where the court held that:
09. Thus, the Land Transfer Act (Cap 131) provides for title by registration and makes such title indefeasible except in case of actual fraud. As a result of this
guarantee given to a registered proprietor, there was a need for a mechanism by which a registered proprietor could enforce his or
her or its indefeasible right against any illegal occupant. This need was fulfilled by the special jurisdiction given to this court
under the sections 169 to 172 of the Land Transfer Act. The underlying principle of this summary procedure is to protect the last registered proprietor, who has an indefeasible title,
from illegal occupation by others at a minimal cost. Thus, having a summary procedure for eviction under those sections of the Land Transfer Act is the logical consequence of Torrens system of registration, which safeguards the title of last registered proprietor. The Fiji
Court of Appeal concisely stated that, it is a speedy procedure for obtaining possession when the occupier fails to show cause why
an order should not be made (per: Mishra JA in Jamnadas v Honson Ltd [1985] 31 FLR 62 at page 65).
At Lautoka
18/02/2020
URL: http://www.paclii.org/fj/cases/FJHC/2020/100.html