Jay v Digitaki [2023] FJHC 44; HBC236.2017 (31 January 2023)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

HBC 236 of 2017

BETWEEN:

PATRICK JOHN JAY

PLAINTIFF

AND:

SEMITI DIGITAKI

DEFENDANT

BEFORE:

M. Javed Mansoor, J

COUNSEL:

Mr. S. Singh with Ms I. Lutu for the plaintiff
Mr. A. Rayawa for the defendant

Trial:
16 & 17 June 2020

Date of Judgment:.
31 January 2023

JUDGMENT

LAND LAW: Writ of summons – Native land – Agreement for Lease – Transfer of leasehold – Register of Deeds – Res judicata –– Mesne profits – Section 172 of the Land Transfer Act 1971 – Order 18 rule 7 (2) of the High Court Rules 1988

1. The plaintiff filed action by writ seeking vacant possession of a land occupied by the defendant, and for the recovery of mesne profits and damages. The plaintiff previously filed action to evict the defendant by summary procedure in terms of section 169 of the Land Transfer Act 1971, but did not succeed.
   
2. In his statement of claim, the plaintiff stated that although he acquired the subject property on 22 April 2013, the defendant has been in unlawful possession since the time of acquisition. The plaintiff pleaded that he has continued to incur losses in not being able to rent out the property.
   
3. In a three paragraph statement of defence, the defendant denied the plaintiff’s claims. However, he did not plead details of his rights to the land.
   
4. The parties did not agree upon any facts. The subject property is described by the plaintiff as property comprised in Agreement for Lease (NLTB Ref: 4/14/2896) situated in the Tikina of Nausori in the province of Tailevu.
   
5. Both parties led evidence at the trial. The plaintiff gave evidence by skype, as he resides in Australia. Two other witnesses, Mr. Kameli Ritova, an officer of the iTaukei Land Trust Board (iTLTB) and Ms. Treta Sharma, the Registrar of Titles and Deeds, also gave evidence on behalf of the plaintiff. The defendant gave evidence on his behalf. After trial was concluded, the plaintiff filed a summons on 19 June 2020 asking for leave to be granted to recall a witnesses, in particular, Mr. Kameli Ritova. By decision dated 11 August 2022, court declined the plaintiff’s application.
   

The Evidence

6. In his evidence, the plaintiff, Mr. Patrick John Jay, said he is the owner of a property called Matabai, No.4 at Nausori in Tailevu which is 1,289 square meters in extent. His ownership was by way of an Agreement for Lease. He purchased the property for $50,000.00 in April 2013 and paid stamp duty of $1,010.00 on the transaction. Mr. Jay said he continues to pay ground rent to the iTLTB. The assignment of rights to the property to the plaintiff was registered on 22 April 2013.
   
7. The witness described the building on the property as a house with three bedrooms. At the time he purchased it, he was aware that someone occupied the property, but did not know that it was the defendant. Soon after he purchased the property, he proceeded to the land to meet the defendant, but could not do so. Thereupon, Mr. Jay said, he informed a woman who resided in the defendant’s house that he is the new owner. The plaintiff said that over a period of seven years, the defendant has continued to be in occupation of the property without making a payment.
   
8. The plaintiff said that on 21 May 2013, his lawyers issued the defendant a notice to vacate. He plaintiff made an application for vacant possession under section 169 of the Land Transfer Act. He said that this did not succeed as the master was of the view that he had not proved registered ownership of the property. The plaintiff admitted that the documents filed in that action are also before this court.
   
9. In cross examination, the plaintiff said that he took steps to register the transfer documents after obtaining the consent of the iTLTB. It was suggested to the plaintiff that the defendant was in occupation as a purchaser of the property. However, the defendant’s statement of defence did not assert a right to the property, and there was no such issue for the court’s consideration. These were the only matters raised by Mr. Rayawa in his cross examination of the plaintiff.
   
10. The second witness to give evidence on behalf of the plaintiff was Kameli Ritova, an acting senior estate officer, based at the Nausori branch of the iTaukei Land Trust Board. Mr. Ritova was familiar with the property, after he made an inspection of it, following a claim for possession by members of a mataqali. He testified that Patrick John Jay is the current registered owner of leasehold rights to the property. In cross examination, Mr. Ritova said the iTLTB had approved the assignment of the Agreement for Lease to Mr. Jay, and that the agreement gave the plaintiff the right to occupy the land. Mr. Ritova said that the iTLTB did not permit the defendant to occupy the land, and that the plaintiff had not sub-let it to the defendant. He said that the plaintiff would have required the board’s consent to sub lease the land. In order to apply for such consent, Mr. Ritova said, the person applying must have a registered lease – in the case of a surveyed land – or an Agreement for Lease in the case of a land that has not been surveyed.
    
11. Ms. Threta Gagayan Sharma is the Registrar of Titles and Registrar of Deeds in Fiji. The offices Ms. Sharma holds are regulated by statute. The witness said that the respective conveyances by Ram Pati and Sashi Lata were registered in the records of the Registrar of Deeds. She explained that an Agreement for Lease is in respect of land that is not surveyed and that such an instrument can be registered with the Registrar of Deeds. On the other hand, she said, the conveyance of a surveyed lease would be registered with the Registrar of Titles. In the present matter, Ms. Sharma said, there was only the transfer of the Agreement for Lease which was registered with the Registrar of Deeds. Ms. Sharma said that when the transfer of an Agreement for Lease is executed and registered, it would convey rights to the transferee, and that prior to registration, her office would ascertain whether consent has been granted by the iTLTB.
    
12. The transfer from Ram Pati to Sashi Lata was on 26 August 2002. Ms. Sharma said the iTLTB’s consent to transfer the Agreement for Lease to Sashi Lata was given until 25 November 2002 and later extended to 2 April 2005. The transfer was registered on 2 March 2005 with the Registrar of Deeds within the validity period of the board’s consent. She said the consent to transfer the property to the plaintiff was given until 4 July 2012, but was extended until 18 July 2013. She said the consent of the iTLTB was valid as at the date of registration of the transfer to the plaintiff on 22 April 2013. Mr. Ritova also confirmed that the iTLTB consented to the transfer of the Agreement for Lease to Mr. John Jay. Mr. Rayawa submitted that he had not seen the board’s written consent previously, and that the document was not listed in the affidavit verifying the list of documents. However, the instrument itself has been listed, and the document containing the board’s consent forms a part of the registered instrument. He was provided with a copy of the original instrument during the trial.
    
13. The land identified as Matabai No.4, Nausori in the province of Tailevu, NLC Lot 9 is highlighted in yellow in a diagram attached to the Agreement for Lease. A diagram of the applicable land, she said, is attached to an approval notice or an agreement for lease when submitted for registration. The witness explained that the subject land has not been surveyed, and, therefore, there would have been a rough survey from which an approximate extent of the land is stated in the instrument.
    
14. Semiti Digitaki, the defendant, is a class two warrant officer of the Fiji Military Forces. The evidence in chief led through the defendant was brief. Mr. Rayawa submitted that the present issue concerned a legal point, and that he would make submissions on the law rather than resort to the leading of evidence. He submitted that the case could be decided on legal submissions.
    
15. Mr. Digitaki said he did not recognise Patrick John Jay as the lawful owner. He testified that he came into occupation of the land in order to purchase it, and that he made certain payments in that behalf to Sashi Lata and her husband. In re-examination, the defendant said that he made a monthly payment of $300.00 to Sashi Lata. He denied that the payment was rent. He also said that Sashi Lata agreed with him to transfer title of the property for $600.00 and that he made that payment to her. These matters were not pleaded by the defendant. Order 18 rule 7 (2) of the High Court Rules 1988 requires a defendant to an action for the recovery of land to plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.
    
16. When cross examined, the defendant admitted that he is in occupation of property belonging to another. He said that when he entered the property he was not aware that it belonged to the plaintiff, and that it was only after he was taken to court in 2013 that he came to know of the plaintiff’s ownership. The defendant admitted that he did not pay rent to the plaintiff for the past seven years, although he paid for water and electricity. The defendant refused to leave the property, and declared that he would remain a tenant of Sashi Lata and Yogen.
    

Evaluation of the evidence

17. The Agreement for Lease was issued under regulation 12 of the Native Land Trust Regulations of 1984. The parties to the Agreement for Lease are described as lessor and lessee. The Agreement for Lease was initially between the Native Land Trust Board (now known as iTauki Land Trust Board) and one Ram Pati. The instrument describes the parcel of land and the extent. The boundaries of the property are marked and delineated on the attached plan. The property is to be used for residential accommodation. The stipulated lease term is 99 years commencing July 2002 at an annual ground rent of $250.00.
    
18. Upon an evaluation of the evidence, it is clear that the plaintiff has established rights to the property. These rights are set out in the Agreement for Lease which the law recognises. The Agreement for Lease was transferred to the plaintiff on 5 April 2012 and registered on 22 April 2013. The transferor has signed the instrument. She has acknowledged receipt of the purchase consideration in a sum of $50,000.00. The transferor’s signature is witnessed by a Commissioner for Oaths. He has also witnessed the signature of the transferee. The instrument was lodged by the law firm, Parshotam & Co. The instrument is stamped. The defendant does not challenge the instrument. A condition of the Agreement for Lease was not to allocate or deal with the land whether by sale, transfer, sub lease or licence without the consent of the Native Land Trust Board. In this case, the necessary consents were obtained to convey the land from the initial lessee, Ram Pati, to Sashi Lata and, thereafter, from her to the plaintiff in 2013.
    
19. On the other hand, the defendant has not established any right to the property, which he currently occupies free of payment for usage of the land. He did not plead a defence. Instead, he was content in making a bare denial of the plaintiff’s claims. His evidence was incoherent and did not show a basis upon which he could continue to stay on the property.
    
20. The defendant did not have a tenancy agreement with Sashi Lata, but intended to continue as her tenant, although she had transferred her property rights to the plaintiff. On another occasion, the defendant claimed to be the purchaser of the property. In cross examination, the defendant admitted that he did not have an instrument transferring rights to him from Sashi Lata. He admitted that the Agreement for Lease was not in his favour. He did not have the consent of the iTLTB to occupy the land. He conceded that the plaintiff did not grant him permission to occupy the property. The reason given for the defendant’s refusal to vacate is that he was initially unaware that the plaintiff owned the land. It was only later through Sashi Lata that he became aware that the plaintiff owned the property. The reasons given by the defendant for his failure to vacate the property when called upon to do so by the plaintiff are inconsistent and unconvincing. In these circumstances, the plaintiff is entitled to vacant possession of the property described in the statement of claim.
    
21. In submissions, the defendant raised an objection to the maintainability of the action. Mr. Rayawa submitted that the plaintiff was not entitled to pursue this action, having had the issue litigated in summary proceedings before the master^[1]. In that action, the court concluded that Mr. Jay failed to establish that he was the last registered proprietor of the land, and that the defendant had shown that there was an arguable case on the issue of possession. The main question in this case is clearly different from the issue that was before the master. The defendant’s objection based on res judicata does not succeed.
    

Mesne profits

22. The next question is whether the plaintiff is entitled to an order for the payment of mesne profits. The plaintiff, through his lawyer, issued the defendant a notice to quit dated 21 May 2013. The defendant was given a month in which to hand over vacant possession of the property. Thereafter, the plaintiff filed action under section 169 of the Land Transfer Act seeking vacant possession. The plaintiff did not succeed in that action. The defendant has occupied the property rent free notwithstanding the plaintiff’s quit notice.
    
23. In his statement of claim, the plaintiff sought mesne profits in a monthly sum of $500.00 from April 2013 until the defendant gives up possession of the property. The plaintiff did not say the basis on which he arrived at the amount he seeks. There is evidence that the defendant paid the previous owner a monthly sum of $300.00 for a few months. At times in his testimony, the defendant denied that the payment was for rent. An affidavit sworn by the defendant on 7 October 2013 and filed in an earlier proceeding before the master of the High Court describes the payment as rent. When the affidavit – tendered on his behalf – was put to him in cross examination, the defendant claimed that his affidavit is inaccurate. The court does not accept his evidence on the matter, and holds the view that the defendant made these payments to Sashi Lata in order to occupy the property. It is, therefore, reasonable for the plaintiff to recover mesne profits at the monthly rate of $300.00. The plaintiff’s claim is from April 2013. The notice to quit is dated 21 May 2013. The defendant was given a month to vacate the property. There is no evidence of the date on which the notice was served on the defendant, but the defendant does not deny receipt of the notice. Allowing for time to serve notice and for the notice period of a month, the court considers it reasonable to award mesne profits from the commencement of July 2013 until handover of vacant possession of the property.
    

ORDER

1. The defendant is ordered to hand over to the plaintiff within 21 days of this judgment vacant possession of the property comprised in the Agreement for Lease (NLTB Ref: 4/14/2896).
   
2. The defendant is ordered to pay the plaintiff mesne profits at the monthly rate of $300.00 from the commencement of July 2013 until vacant possession of the property comprised in the Agreement for Lease (NLTB Ref: 4/14/2896) is handed over to the plaintiff.
   

100. The defendant is directed to pay the plaintiff costs summarily assessed in a sum of $5,000.00 within 21 days of this judgment.
     

Delivered at Suva this 31^st day of January, 2023

M. Javed Mansoor
Judge

Solicitors:
For the plaintiff: Shelvin Singh Lawyers
For the defendant: Rayawa Law

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^[1] HBC 229.2013 (28 November 2013)