Ali v Nasinu Land Purchase & Housing Co-operative Society Ltd [2021] FJHC 208; HBC88.2016 (26 March 2021)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 88 0f 2016

BETWEEN

AKBAR ALI of Davuilevu, Nasinu, Fiji, Taxi driver as the Administrator Pendente lite of the

Estate of NABIHAN.

PLAINTIFF

AND

NASINU LAND PURCHASE & HOUSING CO-OPERATIVE SOCIETY LIMITED

a co-operative duly registered under the Co-operative Societies Act and

having its registered office at Suva Street, Suva.

FIRST DEFENDANT

AND

VIJENDRA PRASAD of Lot 8, Kishore Bhindi, Laucala Beach Estate,

Suva, Driver.

SECOND DEFENDANT

AND

THE REGISTRAR OF TITLES of Civic Towers Building, Suva.

THIRD DEFENDANT

AND

THE ATTORNEY GENERAL OF FIJI of Suvavou House, Suva.

FOURTH DEFENDANT

Counsel : Ms. Lutu I. for the Plaintiff

Ms. Devan S for the 1^st Defendant

Mr. Narayan E. for the 2^nd Defendant

Ms. Ali S. for the 3^rd & 4^th Defendants

Date of Hearing : 22^nd February 2021

Date of Judgment : 26^th March 2021

JUDGMENT

[1] The plaintiff instituted these proceedings seeking the following orders against the defendants:

(a) A declaration that the transfer dated 27 March 2015 between the 1^st and 2^nd defendants of the property comprised in Certificate of title No. 42252 being Lot 7 on Deposited Plan No. 10581 is null and void.
(b) An order that Caveat No. 813809 be reinstated.
(c) An order that the defendants pay damages to the plaintiff.
(d) An order that the 1^st and 2^nd defendants pay exemplary damages to the plaintiff.
(e) An order that the costs of the proceedings be paid by the defendants to the plaintiff on a full indemnity basis.

[2] The plaintiff’s case is, the estate of Nabihan (the Estate) was entitled to the property comprised in Certificate of title No. 42252 being Lot 7 on Deposited Plan No. 10581 pursuant to a settlement agreement reached between the previous administrator of the Estate and the 1^st defendant on 23^rd June 2011.

[3] The plaintiff also states in the statement of claim that he was ready and willing to complete the transaction and instituted the Civil Action No. 218 of 2015 to compel the 1^st defendant to transfer the property to him.

[4] The first cause of action is the wrongful removal of the caveat No. 813809 lodged on 27^th May 2015. It is averred in the statement of claim that the 1^st defendant lodged a removal of caveat application with the 3^rd defendant and the 3^rd defendant wrongfully forwarded the notice of removal of the caveat to the solicitors of the 1^st and 2^nd defendants and the solicitors of the 1^st and 2^nd defendants fraudulently left the caveat to lapse the statutory 21 days’ time.

[5] The particulars of fraud as pleaded in the statement of claim are as follows:

(a) The notice was actually received by the 1^st defendant’s solicitor, Neel Shivam Lawyers.
(b) The said notice was kept by Neel Shivam Lawyers for 18 days from the date of receipt.
(c) The said notice was returned to the post office by Neel Shivam Lawyers on 17^th August 2015.
(d) Thereafter, knowing that the plaintiff or his lawyers had no knowledge of the removal of caveat, the 1^st and 2^nd defendants lodged a transfer dated 28^th May 2015 for registration against the said land.

[6] The 2^nd cause of action is that the 3^rd defendant on 3^rd February 2016 undertook to cancel the registration of the transfer in the name of the 2^nd defendant and to reinstate the caveat but failed to take steps for cancellation and for reinstatement of the caveat.

[7] At the pre-trial conference the parties admitted the following facts:

1. The plaintiff is the administrator de bonis none of the estate of Nabihan.
2. The 1^st defendant is a limited liability company having its registered office at Suva and was at all material times, the registered proprietor of the land comprised in Certificate of Title No. 42252 being Lot 7 on Deposited Plan No. 10581.
3. The 2^nd defendant is the new owner and purchaser of the land comprised in Certificate of Title No. 42252 being Lot 7 on Deposited Plan No. 10581.
4. The 3^rd defendant is the Registrar of Titles.
5. The 4^th defendant is the Honourable Attorney General’s Office who is joined pursuant to the Crown proceedings Act.
6. On 27^th May 2015, the estate lodged a caveat No. 813809 on the said property.
7. On 25^th June 2015, the 1^st defendant lodged a removal of caveat application with the 3^rd defendant.
8. The 1^st defendant registered a transfer of the said property to the 2^nd defendant on 25^th august 2015.

[8] At the hearing of the mater only the plaintiff testified. The defendants informed court that they would not adduce any evidence.

[9] At the conclusion of the hearing the learned counsel made an application from the bar table that she wished to call the 4^th defendant, the Registrar of Titles as a witness and moved for an adjournment which was objected to by the learned counsel for the 3^rd and 4^th defendants. The court declined the application and informed the parties that I would give reasons in this judgment. A party to a court proceedings does not have the right to compel another party to testify. If the plaintiff intended to call an officer from the office of the 3^rd defendant he should have subpoenaed in advanced and not after the defendants closed their respective cases.

[10] The plaintiff came to court on the basis that the 1^st defendant and the plaintiff’s mother entered into an agreement whereby the 1^st defendant agreed to transfer the property comprised in Certificate of title No. 42252 being Lot 7 on Deposited Plan No. 10581 to the plaintiff’s mother. The plaintiff in his evidence said his mother signed a document and again he said there is no agreement but he needs Lot 7. It is not clear from the evidence of the plaintiff, the only witness, whether there was, in fact, an agreement between his mother and the 1^st defendant. The property has now been transferred to the 2^nd defendant. The plaintiff has failed to adduce sufficient evidence to establish that his mother’s estate has an entitlement to the property in question.

[11] The next issue is whether the plaintiff is entitled to have the caveat No. 813809 reinstated on the ground of fraud. The fact that the first defendant lodged a removal of Caveat application and it was served on the solicitors of the 1^st and 2^nd defendant is challenged by the 3^rd defendant. In fact this fact has been admitted by the 3^rd defendant in her letter dated 3^rd February 2016 (P2). Paragraph 2 of the said letter reads as follows:

As discussed, please note that we admit the Notice of Removal of Caveat was not sent to Caveatee’s Address (copy attached for your perusal).

[12] The plaintiff alleges fraud on the part of the 3^rd defendant but there is no evidence of fraud. The burden of proving fraud is on the party who alleges fraud. One must not make allegations of this nature unless he has sufficient grounds to justify such allegations. From the letter written by the 3^rd defendant it appears that this is an inadvertent mistake on the part of the 3^rd defendant.

[13] The question then arises whether any purpose would be served by reinstating the caveat. The property has now been transferred to the 2^nd defendant. As I have stated above the plaintiff as the administrator de bonis non, has failed to show any right over this property. Therefore, the first relief prayed for in the statement for a declaration that the transfer in favour of the 2^nd defendant is null and void, must fail and no purpose would be served by reinstating the caveat.

[14] For the above reasons the court makes the following orders

ORDERS

1. The statement of claim is struck out and the action is dismissed.
2. The plaintiff is ordered to pay the defendants $4000.00 ($1000.00 to each defendant) as costs (summarily assessed) of this action within 30 days from today.
   

Lyone Seneviratne

JUDGE

26^th March 2021