Kumar v Salim [2021] FJHC 391; HBC73.2020 (17 December 2021)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No: HBC 73 of 2020
IN THE MATTER of an application under section 169 of the Land Transfer Act (Cap 131)

BETWEEN: AJAY KUMAR of Tavua Town, Tavua, Fiji, School Teacher.

Plaintiff

AND: MOHAMMED SALIM of 8 Tavua Street, Yalalevu, Ba, Fiji.

Defendant

Before: Master U.L. Mohamed Azhar

Counsels: Mr. S. Luvena for the Plaintiff
Mr. M. Yunus for the Defendant

Date of Judgment: 17.12. 2021

JUDGMENT

01. The plaintiff summoned the defendant pursuant to section 169 of the Land Transfer Act (Cap 131), to show cause why he should not vacate and deliver up immediate possession to the plaintiff of al that part of land comprised in Certificate of Title No. 7776 being Lot 51 on Deposited Plan No. 1203 situated in the District of Ba in the island of Vitilevu containing an area of 24 perches and located at 8 Tavua Street, Yalalevu, Ba, Fiji, owned by the plaintiff, being occupied by the defendant and his families (hereinafter referred to as ‘the subject property’). The summons is supported by an affidavit sworn by the plaintiff and contains the annexures marked as “AK 1” and “AK 2”.

02. The defendant, upon service of the above summons, appeared through his solicitor and filed the affidavit in opposition annexing seven documents marked as “MS 1” to “MS 7”. The plaintiff thereafter filed his affidavit in reply. At hearing of summons, both counsels made oral submission and tendered their respective written submission.

03. Both the High Courts and the Appellate Courts which have settled the law and procedure on the summary procedure available for a registered proprietor under the Land Transfer Act (Cap 131) and it does not need much deliberation. However a brief note on the law and procedure is necessary for the purpose of this judgment. It is a procedure ‘to provide a quick and relatively inexpensive summary method of finding out whether a person who is in possession had any legal right to be there’ (per: Stuart J in vek P v. Rav. Ram Sundarundar Lautoka/b> C.A. 788/76&#160 (unreportedhe rationale of e of this speedy procedure is the principle that the registration is everything and in absence ofd, thisteroprietor shar shall have an indefeasible title. This ihis is the well-known Torrens System of Reof Registration generally applied in certain countries in Pacific and on which Land Transfer Act (Cap 131) is founded. When explaining this system of registration in Breskvar v. Wall (1971-72) 126 CLR 376 Barwick C.J stated at page 385 that:

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).

04. In that same case Windeyer J. concurring with the Chief Justice stated at pages 399 and 400 that:

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).

05. The above aphorisms make it clear that, the registration is everything and it is the registration that grants the title to a person so registered. It is the title by registration and not registration of title. Such title obtained through registration is indefeasible or unimpeachable except in case of fraud. Since the Land Transfer Act (Cap 131) is based on the same concept, it provides for a speedy procedure for obtaining possession of a property where the occupier can show no cause why an order should not be made: (Mishra JA in Jamnadas v Honson Ltd [1985] 31 FLR 62 at page 65).

06. The procedure is set out in the following provisions of the Land Transfer Act Cap 131:

169. 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 rered proprietor otor of the land;

(b) a lessor withr to re-enter nter where the lessee or tenant is in arrear for such period as may be provid the lease and, in the absence of any such provision thereiherein, 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) a lessor against a lesseeenr tenant where a legal notice to quit has been given or the term of the lease has expired.

Particulars to be stated in summons

The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

Order for possession

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.

Dismissal of summons

172. If the 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;
     

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

07. The clear and unambiguous language in sections 169 and 170 sets out the requirements for the applicant or the plaintiff and the requirements of the application respectively. The locus standi of the person who seeks order for eviction is set out in section 169 and it provides for the three categories of the persons who are entitled to invoke the jurisdiction of this court under that section. The requirements of an application, namely the description of land and the time period to be given to the person so summoned, are mentioned in section 170. The other two sections namely 171 and 172 provide for the powers that the court may exercise in the applications under the section 169. The burden to satisfy the court on the fulfillment of the requirements under section 169 and 170 is on the plaintiff and once this burden is discharged, it then shifts to the defendant to show his or her right to possess the land. The exercise of court’s power, either to grant the possession to the plaintiff or to dismiss the summons, depends on how the said burden is discharged by respective party to the proceedings. However, dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings, against the person summoned, to which he or she may be otherwise entitled. Likewise, in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the summons shall be dismissed by the court.

08. The plaintiff asserted that, he is the last registered proprietor of the subject property and marked a certified true copy of Certificate of Title No. 7776 as “AK 1” and annexed with his affidavit. The section 18 of the Land Transfer Act provides that, the duly authenticated Instrument of title to be conclusive proof of the particulars contained in or endorsed upon such instrument unless the contrary is proved. The said section is as follows:

Instrument of title to be evidence of proprietorship

18. Every duplicate instrument of title duly authenticated under the hand and seal of the Registrar shall be received in all courts as evidence of the particulars contained in or endorsed upon such instrument and of such particulars being entered in the register and shall, unless the contrary be proved by the production of the register or a certified copy thereof, be conclusive evidence that the person named in such instrument or in any entry thereon as seised of or as taking an estate or interest in the land described in such instrument is seised or possessed of such land for the estate or interest so specified as from the date of such certificate or as from the date from which such estate or interest is expressed to take effect.

09. The last memorial in “AK 1” is evident that, the subject property was finally transferred to the plaintiff on 10.06.2019 and he is the last registered proprietor. The plaintiff also issued a notice through his solicitors on the defendant and gave him one month time to vacate the subject property. The plaintiff by this letter had requested the defendant to clear all rentals and utility bills before leaving the subject property and not to cause any damage to the subject property when leaving the same. That letter is marked as “AK 2”and annexed with the affidavit of the plaintiff and it was sent on 18.10.2019. The defendant not only admitted that, the plaintiff is the last registered proprietor, but also acknowledged the receipt of the letter marked as “AK 2” and sent by the plaintiff’s solicitors. In addition, the defendant admitted that, he received Notice of Distress prior to that letter marked “AK 2”. Admittedly, the plaintiff invoked the jurisdiction of this court under the section 169 (a) as the last registered proprietor of the subject property and under (c) as the lessor who issued a legal notice to quit the subject property. Accordingly, there is no dispute on the locus of the plaintiff to summon the defendant under section 169 of the Land Transfer Act (Cap 131).

10. The section 170 provides for the two requirements of the application, namely the description of land and the time to be given to the person so summoned. In facts, these are the technical requirements. The defendant however, does not dispute these requirements in his affidavit. As the result, the plaintiff has passed the thresholds under both sections 169 and 170 of the Land Transfer Act (Cap 131).
    
11. The next is the section 171 of the Land Transfer Act (Cap 131) which empowers the court to make order for possession. However, the said section 171 provides that the court should be satisfied with the consent if any such consent is necessary. This matter has been settled by the Former Chief Justice His Lordship Anthony Gates (as His Lordship then was) in Prasad 0;&#1and> #160; [200LawRp[21; [2001] 1 FLR FLR 164 (30 April 2001). His Lordship held that:

“At first sight, both sections would seem to suggest th Appl shourst obtain tain the Director's written consent prior tior to theo the commencement of section roceedings angs and exhibit it to his affidavit in support. However I favour Lyons J.'s approach in Parvati Narayan v Suresh&Pr60;Prasad ported) La High Court CivilCivil Action No. HBC0275 of 1996 1996L 15th August 1997 at p 4 insofar as his Lordship found that consent ot neat alce the:

"section 169 appl application (which is the ridding off thef the land 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 section 13. The cou nots not concerned with the grant of or refusal of, consent by the Director, provided such consent is given lawfully. Consent iely a matter for the Director. The statutory regime appears to acknowledge that the Directorector'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”.

12. The section reads as ‘...if any consent is necessary...’ and the above authority clearly states that, the consent of the Director for the application under 169 is not necessary. Thus, the question of consent does not arise in applications under section 169. The summary of above examination on law and procedure is that, if any of those three persons who may avail themselves of the procedure under the section 169, satisfies the court the above requirements or passes the threshold as discussed above, the onus of shifts on the defendant or the person, who opposes the summons, to show his or her right to possess the land or the property. In this case the plaintiff has passed the threshold as discussed above and therefore, the burden now shifts to the defendant to satisfy this court his right to possess the subject property.
    
13. The section 172 provides that, if the person so summoned (the defendant) 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. The Supreme Court in Morris Hedstrom ed &#ed –v- Liaquat Ali CA No: 153/87 explained thu nature of duty casted upon a defendant under section 172 and held that:

"Under Section 172 the person sumd may cause why he refe refused to give possession of the land if he proves to the satisfaction tion of the Judge 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. That is not to say thatlfinal or incontrovertible proof&#f a right to remain in possessuon must be adduced. What is req is that some tame tangible evidence establishing a right or supng an arguable case fase for such a right&#1st beced.<#160;(Emphasis added)

14. [1982] 28 FLR 31 (2 April 1982) where the court explained the nature of the orders a court may make in terms of the phrase used in section 172 of the Land Transfer Act, which says “he (judge) may make any order and impose any terms he may think fit”. The Court held that:
    

“..but the section continues that if the person summoned does show cause the judge shalmidismiss 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, h theon appearing has failed to satisfy the judge, and, and inde indeed are often applied when the judge decides that an open court hearing is required”. (Emphasis added).

15. The defence taken up by the defendant in his affidavit is twofold. First is that, he had already paid a sum of $ 3,400 being the arrears of rent, bailiff fee and the solicitor’s cost as demanded by the Notice of Distress issued by the bailiff on behalf of the plaintiff. Second is that, he entered into a Sale and Purchase Agreement with the previous owner of the subject property, one Shri Prasad and paid the full purchase price. The previous owner allowed him to occupy the subject property. Each defence needs separate discussion.
    
16. Payment of all rent due and all cost incurred by the lessor before the hearing is the ground which compels the court to dismiss the summons for ejectment filed pursuant to section 169 of the Land Transfer Act (Cap 131). The Act specifically provides for this in proviso of section 172 and it reads that:
    

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

17. However, the above defence is available for a lessee only if the summons is issued pursuant to section 169 (b) of the Land Transfer Act for default of payment of rent by the lessee. The sub-section (b) is reproduced below for convenience.
    

(b) a lessor wiwer to re-enter nter 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;

18. The defendant admitted in paragraph 5 of his affidavit that, he received Distress for rent prior to receiving the notice to quit marked as “AK 2” and annexed with the affidavit of the plaintiff. The defendant also stated that, he paid a sum of $ 3,400 being for arrears of rent and costs of bailiff and solicitors. The plaintiff too admitted that, he recovered the arrears of rents together with the costs of solicitors and bailiff. Thereafter, the plaintiff sent “AK 2” through his solicitors demanding the defendant to quit the subject property within a month from the date thereof. Evidently, the document marked as “AK 2” is a notice to quit as it gave the defendant one month time and demanded to settle all arrears of rental whilst requesting to clear all utility bills. When the defendant failed to comply with that notice to quit, the plaintiff summoned him. This obviously indicates that, the summons was issued pursuant to section 169 (a) and 169 (c) of the Act. Hence the defendant cannot take up the defence which is only available when the summons is issued pursuant to section 169 (b) of the Land Transfer Act for default of rentals.
    
19. The defendant annexed a copy of a letter marking as “MS 5” and claimed to be written by one Shiri Prasad who signed illegibly. The defendant claims that, it was a Sale and Purchase Agreement between him and the previous proprietor one Shiri Prasad. The said letter is reproduced below for reference and discussion. The spelling mistakes in the said letter are original and it is not edited.
    

I am Mr. Shiri Prasad, I am selling my house to Mr Mohammed Salim.

Location of my property is Tavua Street, Houase Number 8, Yalalevu, Ba I give Mr. Mohammed Salim full authority as from December 2012. The toal amount of this property is $45,000.

Mr Salim has done full house repairing and painting.

Shri Prasad selling this house $45,000 and deposit $35,000 2013 permant and Mohammed Salim give $35,000 cash and every fist January give $2000 and payment is in five year completed.

2013 fast January give Mohammed Salim $2000 payment

And 2014 First January give Mohammed Salim $2000 payment

And 2015 First January give Mohammed Salim $2000 payment

And 2016 First January give Mohammed Salim $2000 payment

And 2017 First January give Mohammed Salim $2000 payment

And Five years completed all payment

_________________ ____________________

SHIRI PRASAD WITNESS

(Signed illegibly) (Signed illegibly)

20. Serious questions arise in relation to the above letter. It is an undated letter claimed to be signed by one Shri Prasad who signed it illegibly. The first and foremost question is whether any prudent person will pay a substantial amount of $ 35,000 as an advance based on this letter? Secondly, why it does not states the date of transfer by the said Shri Prasad to the defendant? The said Shiri Prasad passed away on 25.01.2014 as per the document annexed by the defendant. His wife – a retired principal – was appointed as executrix and trustee. Accordingly, the balance payment must have been made to his wife who was the sole executrix and trustee. The defendant claims he made the full payment in 2017. The third question is, why the defendant did not demand the executrix or trustee to transfer the subject property to him if had completed the payment in 2017? In fact, the trustee transferred the subject property in 2019 to the plaintiff. Fourthly, if the defendant had paid the full purchase price to the previous owner in 2017, why did he pay rent to the plaintiff and even pay the rental arrears with solicitor’s fee and cost when the distress for rent issued by the plaintiff who became the proprietor in 2019? All these questions cast serious doubt, not only on the authenticity of the said letter, but also on the credibility of the averments of the defendant. For these reasons, I reject those claims of the defendant as they lack credibility.
    
21. This makes the conclusion that, the plaintiff passed the threshold under section 169 of the Land Transfer Act and the defendant, on the hand, failed to show cause his right to remain in the subject property. Consequently, the defendant and all his dependents are ought to be evicted with immediate effect.
    

22. Accordingly, I make following final orders:

1. The defendant is ordered to immediately hand over the vacant possession of the subject property mentioned in the summons to the plaintiff, and
   
2. The defendant is further ordered to pay a summarily assessed cost of $ 1,500.00 to the plaintiff within a month from today.
   

U.L.Mohamed Azhar
Master of the High Court

At Lautoka
17.12.2021