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Sagar v Housing Authority [2002] FJHC 12; Hbc0357d.2000s (15 July 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 357 OF 2000S

Between:

VIDYA SAGAR
Plaintiff

and

HOUSING AUTHORITY
Defendant

Ms. V. Lal for the Plaintiff
S. Chandra for the Defendant

DECISION

The Housing Authority owned land at Waila which it subdivided. One of the lots was purchased by the Plaintiff.

The Plaintiff’s case is that in 1999 a landslide which was caused by a blocked road drain damaged his property.

The Defendant’s case is that the road in question did not belong to it at the time that the landslide occurred since it had already been dedicated to the Director of Lands.

At a conference held in December 2001 under the provisions of O 34 r 2 (6) I pointed out that the Housing Authority had raised a legal defence which if decided in its favour would in all likelihood determine the outcome of the proceedings without the need for a trial to be held. I asked both counsel to file written submissions.

In his written submissions filed on behalf of the Housing Authority Mr. Chandra stated (without any contradiction by the Plaintiff) that the road in question (Lot 7 on DP 7194) was dedicated and the instrument of dedication was registered on 26 March 1996. Mr. Chandra submitted that in the absence of fraud which was not being alleged the dedication granted the Director of Lands indefeasible title to the land by virtue of Section 39 of the Land Transfer Act (Cap 31). Citing remarks by Hardman J in Walker v. District Land Registrar (1923) GLR 465 he submitted that:

“When dedication is complete the ownership of the dedicator in the land is extinguished altogether.”

Mr. Chandra submitted that the liability of the Housing Authority as dedicator had been extinguished.

In her written submission in answer Ms. Lal exhibited a copy of a letter from the Department of Lands and Survey dated 3 November 1999 which reported that the Department had concluded that the dedication of the road was accepted by the Director of Lands in error. The error apparently consisted in not obtaining from the PWD its certification that the road had been constructed to its standards and that the PWD had undertaken its further maintenance.

In my view a simple error not involving fraud cannot provide a ground for impeaching the dedication. Accordingly the dedication must be indefeasible and I so hold.

It is perhaps worth adding that according to a letter written on 3 December 1999 also exhibited to Ms. Lal’s written submission the Housing Authority appeared to accept that it had some responsibility for what had occurred. It undertook to carry out certain works on the road. What the value of the actual damage to the Plaintiff’s land (apparently unimproved) was, I do not know. Whether the action is properly within the jurisdiction of the High Court or whether it should in fact have been commenced in the Magistrates’ Court is not clear. There seem to be grounds for optimism that realistic discussions between the existing parties and the Director of Lands could lead to a settlement of this action without the need to take the proceedings further.

M.D. Scott
Judge

15 July 2002