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Hamid v Prasad [2003] FJHC 246; HBC0031j.2002S (1 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0031 OF 2002

Between:

ABDUL HAMID
t/a Hamid’s Construction
Plaintiff

and

HARDEO PRASAD
Defendant

Mr. J. Savou for the Plaintiff
Mr. S. Chandra for the Defendant

JUDGMENT

By Originating Summons Abdul Hamid (the ‘plaintiff’) seeks an order against Hardeo Prasad (the ‘defendant’) for vacant possession of portion of that piece of land comprised in Lease No. 354985 being Lot 10 on Deposited Plan 5086 (the ‘land’).

This application is made under Order 113 of The High Court Rules 1988 and pursuant to s169 of the Land Transfer Act Cap. 131 (the ‘Act’).

An affidavit in support has been filed. There is also an affidavit in response. As ordered, both counsel filed written submissions.

Background facts

The plaintiff is the registered proprietor of the land. The defendant is in occupation of a portion of the land and has not paid any ground rental in respect of the land since 1973 either to the Director of Lands or to the plaintiff since he (the plaintiff) became the proprietor.

The Director of Land’s consent has been obtained to initiate these eviction proceedings against the defendant.

There is an action HBC0089 of 1994S pending against the plaintiff as the First Defendant and the Director of Lands as the second defendant by the defendant in the present action who is alleging fraud in that the plaintiff had knowledge or is deemed to have had knowledge of the plaintiff’s interest in the land and has disregarded his interest by accepting a new lease in his own name on the land.

I gave an interlocutory judgment in that case on 8 April 1994 wherein I ruled, inter alia, on the status of the plaintiff in relation to his interest in the land stating:

“I find that no lease document was ever issued to the Plaintiff or his father before him in respect of Lot 24. The Plaintiff was paying $2 land rent to D1 until 1973 and nothing was paid after that; he remained on this land ever since. There is no evidence to show that he was ever issued with any tenancy document. Although he built a substantial dwelling-house on the said land it was done without the consent of the Director of Lands (D1) even though the Suva Rural Local Authority and the Town Planning Board gave the necessary permits to build. How far D1 is involved in the permission to build is for it to answer in the trial of this action.

The Plaintiff states that an equitable interest in the land has been created in his favour in the circumstances outlined by him. The Plaintiff was on 1 February 1994 given notice by D1 to remove his dwelling-house within 7 days.

This therefore is the status of the Plaintiff: a person without a lease or a tenancy or a licence of any kind enabling him to occupy the land. That being the situation, as far as D1 is concerned it is for it to answer the allegations against it in the trial of the action and not for me to decide on the affidavits in the application before me.

For some reason this action is still pending trial.

Plaintiff’s contention

It is the defendant’s view that just because there is the said pending case before the Court these eviction proceedings cannot proceed. He submits that this is a good reason for him to resist the application under s169. But the plaintiff says that this cannot be so as evinced by the following paragraph in Dinesh Jamnadas Lalji and Anor. v Honson Limited FCA Civ. App. 22/85 where Mishra J.A said:

“At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act.” (emphasis added)

The learned counsel for the Plaintiff Mr. Savou submits that what the defendant alleges does not constitute fraud. He says that the defendant’s affidavit fails to establish facts on which the plaintiff is alleged to have committed fraud in that the only ‘particulars’ on which the defendant relies is that the plaintiff having knowledge of the defendant’s interest in the land, nevertheless went ahead and had his interest registered in the land and disregarded the defendant’s interest.

Counsel further submits that in the said civil action HBC0089.94S it has already been determined that the defendant is a person without a lease or tenancy or licence of any kind enabling him to occupy the property. He has no legal status over the property.

Mr. Savou submits that the plaintiff is the registered proprietor of the land and his title is guaranteed under s39(1) of the Act. The defendant has been in illegal occupation of the land since 1973.

Defendant’s contention

The learned counsel for the defendant submits that the defendant has lived all his life on the land inheriting it from his father Badal who also lived on it since 1940.

Rent was paid by the defendant to the Director of Lands from 1961 to 1973. A three bedroom house was built on it; it is ‘right in the middle of the boundary which is towards the plaintiff’s land’. Upon registration of the Lease the Director of Lands gave 7 days’ notice to the plaintiff to vacate the land.

In the said Civil Action No. 89/94, the case which is pending, the defendant, inter alia, sets out particulars of fraud. He said that the plaintiff and Director of Lands had full knowledge of the existence of the rights of the defendant in the land etc. He submits that there is conspiracy between the plaintiff and the Director of Lands in irregularly registering a lease under the Act to defeat the interest of the defendant.

Mr. S. Chandra submits that the plaintiff’s argument is based on the principle of indefeasibility of title. He does not agree with that principle as in the circumstances of this case the defendant has an equity or equitable interest to remain on the land.

He submits that s169 and Order 113 applications are not relevant to the situation here and ought to be dismissed.

Consideration of the issue

As ordered, both counsel filed written submissions and I have given these due consideration.

The undisputed fact is that the plaintiff is the registered proprietor of the land. Being State land consent to institute these eviction proceedings has been given by the Director of Lands.

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-

“s.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.”

s.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.”

It is for the defendant to ‘show cause’. For the reasons hereinafter appearing I find that the defendant has not done so.

The defendant has raised the point that because the said action is pending before this Court involving the defendant in relation to the land this Summons for possession should not be heard. It should be noted that the pendency of the action is no bar to my hearing the summons for possession and this proposition has support in the Fiji Court of Appeal case of Dinesh Jamnadas already referred to hereabove.

Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

“....that mere institution of .. proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”

Apart form allegation of fraud, which I shall consider later, there are no complicated questions of fact in this case to be investigated. Therefore procedure under s169 is most appropriate here. On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

“... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

On the requirements of section 172 the Supreme Court in Morris Hedstrom Limited v. Liaquat Ali, (Action No. 153/87 at p2 said as follows and it is pertinent:

“Under Section 172 the person summonsed may show cause why he refused to give possession of the land and if he proves to the satisfaction 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 that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced.”

Indefeasibility of title

The principle of indefeasibility of title comes into operation in this action. On this aspect the following sections 38, 39 and 40 of the Act are relevant to this case and are to be borne in mind in considering the issue before the Court.

Section 38 provides: (registered instrument to be conclusive evidence of title).

“No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title”.

Section 39 provides: (estate of registered proprietor paramount, and his title guaranteed):

Section 39(1)

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register constituted by the instrument of title, thereto, but absolutely free from all other encumbrances whatsoever except:-

(a) the estate or interest of a proprietor claiming the same land, estate or interest under a prior instrument of title registered under the provisions of this Act; and

(b) so far as regards any portion of land that may be by

wrong description or parcels or of boundaries be erroneously included in the instrument of title of the registered proprietor not being a purchaser or mortgagee for value or deriving title from a purchaser or mortgagee for value; and

(c) any reservations, exceptions conditions and powers contained in the original grant.

(d)

39(2) Subject to the provisions of Part XIII no estate or interest in any land subject to the provisions of this Act shall be acquired by possession or user adversely to or in derogation of the title of any person registered as the proprietor of any estate or interest in such land under the provisions of this Act.” (emphasis added)

Section 40 states: (purchaser not affected by notice):

Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud contrary notwithstanding,. (emphasis mine)

Section 169 calls for evidence of title. Therefore unless an applicant is the registered proprietor or lessor of the land in question he will not have recourse to this section at all. In this case the applicant/plaintiff is the registered proprietor of the land.

In the said sections of the Act there is reference to indefeasibility of title and ‘fraud’. The defendant alleges ‘fraud’ on the part of the plaintiff and that he conspired with the Director of Lands in acquiring the lease of the land.

It is clear from the affidavit evidence before me that as required by law no particulars of alleged ‘fraud’ have been given. They are just wild and general allegations. As against these allegations, the court has before it the plaintiff as the registered proprietor holding a registered lease over the land. Even in the said civil action 89/94 wherein there is allegation of ‘fraud’, the issue has not been decided for that action is lying dormant for some unknown reason. The plaintiff in the present action cannot be expected to wait for the outcome of the decision in that case. In any case, this is a s169 application which can be dealt with independently of the other case.

Hence under the provisions of s171 of the Act, on the facts and circumstances of this case, the Court is entitled to deal with this matter in the manner I have stated whilst at the same time if I so decide to order a full trial before the Court.

Fraud

The defendant has raised the issue of ‘fraud’ and ‘conspiracy’ in his response to this application. In short all he said is until the said action No. 89/94 is finalised the plaintiff has no right to evict him or enter the land and that the matter needs to be determined in that action. On the said interlocutory decision that was given by this Court in 89/94 it was an interim one or an interlocutory application and the substantive action continues in Court.

In this regard it is pertinent to note that section 40 of the Act, inter alia, states:

“... knowledge that any such unregistered interest is in existence shall not of itself be imputed as fraud.”

Even if there was an ‘interest’ of the nature alleged it is not relevant to the plaintiff’s application for the plaintiff was a lessee of the land by the Director of Lands. Hence if the defendant has any claim, it is rightly against the Director of Lands. It is to be noted that the defendant has not either paid any ‘rent’ to Director of Lands since 1973 or to the plaintiff to endeavour to establish a semblance of an ‘interest’ in the land.

Mere alleged knowledge of the defendant’s interest as that alleged is insufficient and incapable on its own to impute fraud in the plaintiff.

In considering the ‘fraud’ aspect in this application I have borne in mind the ‘test of fraud’ as stated by Salmon J in the following passage in the New Zealand Court of Appeal case of Waimiha Sawmilling Company v Waione Timber [1923] NZGazLawRp 32; [1923] N.Z.L.R. 1137 at p.1175:

“The true test of fraud is not whether the purchaser actually knew for a certainty the existence of the adverse right, but whether he knew enough to make it his duty as an honest man to hold his hand, and either to make further enquiries before purchasing, or to abstain from the purchase, or to purchase subject to the claimant’s rights rather than in defiance of them. If, knowing, as much as this, he proceeds without further inquiry or delay to purchase an unencumbered title with intent to disregard the claimant’s rights, if they exist, he is guilty of that wilful blindness or voluntary ignorance which, according to the authorities, is equivalent to actual knowledge, and therefore amounts to fraud ...”

A similar situation such as the one here arose in the unreported case of Ram Singh f/n Sobha Ram v Azad Kumar f/n Bihari (Civil Action 661/85 and 44/86 – Lautoka [Western Division] – Dyke J) but there was no allegation of fraud except misrepresentation. There the plaintiff claimed that he holds documentary evidence of the Lands Department’s assurances and promises that he would be given a lease of the land.

I have already stated above what I found in 89/94 as to the defendant’s status in regard to the land. He is not a tenant, there is no tenancy and nothing to show that there is a tenancy and there is no evidence of payment of rent to anyone.

In these circumstances the Court cannot interfere with the exercise of discretion on the part of the Director of Lands as to whom he intends to grant the lease of the land. He is entitled to grant to whoever is most entitled or qualified.

Dyke J’s statement in Ram Singh (supra) which is as follows is apt and I adopt it in this case:

“Azad Kumar’s status has not changed from that of a squatter, and Ram Singh has a valid lease over the land. Perhaps Azad Kumar could seek compensation or damages from the Director of Lands if he can prove that he has been misled into expending money on building a house on the land by valid promises or misrepresentations by the Director, but this cannot affect Ram Singh who holds a valid lease properly issued to him over the land.

Ram Singh holds a valid lease and naturally wishes to develop the land. Azad Kumar cannot produce any title or enforceable right to remain on the land.

In the present case the defendant built a house on the land and it is understood that part of his house is sitting on a portion of the plaintiff’s land in respect of which vacant possession is sought.

In this respect the following statement by the Court in response to matters raised by counsel in the Court of Appeal case of Ram Chand and Others v Ram Chandra (Civil Appeal No. 21/02S) is apt and I adopt it here:

“the fact that a tenant carries out improvements without the consent of his or her landlord does not give him a right to continue in the occupation of the land if the landlord is otherwise lawfully entitled to it. On the other hand, if improvements are carried out pursuant to some understanding, however loose, it may be that in some cases rights will be conferred on tenants at least to purchase the land if a price can be agreed upon. One cannot lay down any hard and fast rule. Every case will depend upon its own facts.

Conclusion

To sum up, s.169 provides a summary and expeditious method of obtaining possession. This is applicable to ordinary cases without any complicated questions of fact and legal inferences.

Apart from general allegation of ‘fraud’ this is clear cut straightforward matter without complications and can be easily dealt with in a summary manner.

I find that that the defendant has not ‘shown cause’ to my satisfaction why he should not give vacant possession of the land as required under s172 of the Act.

In the outcome, the plaintiff, who is the last registered proprietor of the land, for the reasons given hereabove, is entitled to immediate vacant possession of same irrespective of the pendency of the said civil action which has been lying dormant for some years.

It is therefore ordered that the defendant give immediate vacant possession of the land to the plaintiff under the provisions of the Act with costs to be paid by the defendant to the plaintiff’s solicitor in the sum of $400.00.

D. Pathik
Judge

At Suva
1 August 2003