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Housing Authority v Devi [2001] FJHC 189; HBC577J.1999S (7 May 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC577 OF 1999

BETWEEN:

HOUSING AUTHORITY
Plaintiff

AND

NIRMALA DEVI
First Defendant

RISHI DEO AND VINODNI DEO
Second Defendants

S. Chandra for the Plaintiff
G.P. Lala for the First Defendant
N.S. Arjun for the Second Defendants

Date of Hearing- 7th May 2001
Date of Judgment- 7th May 2001

JUDGMENT

The Plaintiff is the registered proprietor of Head Lease registered number 12551 being Lot and DP3832 registered on 28th September 1972 under the Land Transfer Act Cap.131.

On or about 30th September 1980 the First Defendant acquired a Lease from the Plaintiff of Lot 20 on DP3866 in Lease No. 179546 containing an area of 29.4 perches (hereinafter called "the first Lease").

On or about 4th October 1982 the Second Defendants acquired a Lease from the Plaintiff of the adjacent Lot 19 on DP3866 being Lease No. 183928 containing an area of 27.9 perches (hereinafter called "the second Lease").

The first and second Leases were of rear lots and I am satisfied had their own individual access approximately 8 feet wide to the street named Laubu Place, Nadera. The Defendants were issued the two Leases without grant of common legal access over the access area shown on Deposited Plan No. 3866 over Lots 19 and 20.

The Defendants did not make common use of the provision of access shown on DP3866 each claiming individual access by virtue of their own private property.

A dispute arose as to the ownership of the driveway on Lot 19 and this was settled in the First Class Magistrate's Court at Suva on the 29th of March 1994. In that case the First Defendant was Plaintiff as Administratrix of the estate of Birja Nand Gosai and the Second Defendants in these proceedings were also the Defendants in the Magistrate's Court.

Both parties were legally represented and an order was made stating the Terms of Settlement of the claim and counter-claim by the Defendants by which it was agreed that the driveway on Lot 19 was the property of the Defendants and the Plaintiff was given until the 31st of July 1994 to construct a new driveway over her property after which it was agreed that the Plaintiff would not use the driveway.

The Plaintiff in this action alleges that at all times it was intended that common access to Laubu Place be provided because according to the Plaintiff individual access by each of the Defendants separately was and is not viable.

The Second Defendants dispute this assertion and thus on the 3rd of December 1999 the Plaintiff issued an Originating Summons seeking a Declaration that the access shown on DP3866 affecting the sub-leases was at all material times intended to be commonly used by both First and Second Defendants without exclusive right of user to any one of them.

When the hearing began before me I was informed by counsel for the First Defendant that she consented to the Order sought in the Originating Summons and so took no part in the hearing.

The Plaintiff concedes that the sub-leases do not expressly provide for any access but argues that the intention that there be common access and not individual access is to be implied in DP3866.

The Plaintiff states that these proceedings have been commenced at the request of the First Defendant who claims that a driveway 8 feet wide is not wide enough for her use and that the separate access shown on the plan should be altered so as to form one common access 16 feet wide.

No affidavit has been filed on behalf of the First Defendant as to why she requires a common access but I was informed by counsel for the Plaintiff that the reason why it began these proceedings was because of the frequent complaints made by the First Defendant to the Plaintiff.

Counsel for the Plaintiff submits that both First and Second Defendants knew when the sub-leases were registered to them that there was no provision for common or even individual access to Laubu Place.

The Plaintiff relies on a Memorandum of Easement shown on Deposited Plan 3866 which shows that Lot 19 is a Servient Tenement to Lot 20 the Dominant Tenement and likewise that Lot 20 is the Servient Tenement to Lot 19 the Dominant Tenement.

In their book Australian Real Property Law Second Edition by Bradbrook, MacCallum and Moore the authors discuss the rules applicable to implied grants of easements and say at para 17.25 that easements of necessity and intended easements may be implied in appropriate circumstances in favour of a grantee as well as a grantor of the land. They then refer to the rule in Wheeldon v. Burrows [1879] UKLawRpCh 204; (1879) 12 Ch D 31 where at page 49 Thesiger L.J. stated:

"On the grant by the owner of a tenement of part of the tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted."

The Defendants oppose the Summons. They say that despite the order of the Magistrate's Court on the 29th March 1994 the Plaintiff now is taking upon itself for the First Defendant something which she has never claimed. The Second Defendants say that they are bona fide purchasers for value of their lease which was transferred into their joint names on the 4th of October 1982.

They say that there was no easement or other encumbrance registered against the leasehold title when they bought the lease. They admit that when they purchased their land there was a defined access forming part of the lease but no common access. They also say that for the last 18 years they have been using their individual access without any difficulty and further, and most importantly, that the creation of common access would diminish the value of the leasehold property and that they would not have bought the land had there been a common access provided on their title. I am informed by the Second Defendants' counsel that the consent order in the Magistrate's

Court was made when it became apparent that the Plaintiff in that Court would have access to her land sufficient for a motor car to drive along it only if she constructed a driveway on her part of the land. The Defendants had already constructed their drive way.

Counsel for the Plaintiff submitted that the Second Defendants should not have relied only on the fact that there were no easements or other encumbrances on the leasehold title but they should have looked at the deposited plan.

I do not agree.

The reason why the Torrens System of Land Title was introduced in countries such as Australia, New Zealand and Fiji was to provide certainty of title to the person or persons named as the registered proprietors of any land shown on the Certificate of Title. That Certificate operates as a Declaration to the whole world that the registered proprietor has an indefeasible title against all the world.

Likewise any person searching the title will see at a glance, because Section 37 of the Land Transfer Act requires it, whether there is any estate interest or encumbrance affecting the land. This is shown in a small plan of the land concerned appearing in one of the bottom corners of the Certificate of Title.

The title thus speaks for itself. Section 37 reads as follows:

"No instrument until registered in accordance with the provisions of this Act shall be effectual to create, vary, extinguish or pass any estate or interest or encumbrance in, on or over any land subject to the provisions of this Act, but upon registration the estate or interest or encumbrance shall be created, varied, extinguished or passed in the manner and subject to the covenants and conditions expressed or implied in the instrument."

Section 126 reads thus:

"Every instrument presented for registration shall refer to all prior registered encumbrances subsisting against the land, estate or interest affected thereby."

In my judgment therefore and without any sworn evidence before me of necessity by the First Defendant I consider that there is nothing before me which would bring this matter within the principles of implied grants. I therefore dismiss the Originating Summons and order the Plaintiff to pay the Second Defendants' costs which I fix at $500.00.

JOHN E. BYRNE

Case referred to in Judgment:

Wheeldon v. Burrows [1879] UKLawRpCh 204; (1879) 12 Ch D 31.