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Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC272 OF 1999L

RAJENDRA PRASAD

V

WALI MOHAMMED

Gates J.

Mr V. Mishra for the Plaintiff
Mr G.P. Shankar for the Defendant

4th August 2000, 3rd June 2005

JUDGMENT

ss.169, 172 Land Transfer Act summons seeking order of ejectment; defects in defendant’s affidavit; affidavit text ending on one page, jurat alone on following page; "before me" omitted from space immediately above Commissioner’s signature; irregularities in the form of the jurat cannot be waived by parties; leave of court required Order 41 r.4; inadequate certificate of commissioner concerning use of an interpreter Order 41 r.3; claim of fraud; constructive knowledge of plaintiff alleged of transfer by previous owner to defendant; equitable fraud; sufficiency of evidence required to resist summons; whether need to inquire from tenant of his interest in title; indefeasibility of register, save fraud.

[1] The plaintiff seeks vacant possession of a Housing Authority sub-lease No. 196800. His summons of 19th July 1999 to show cause pursuant to sections 169 and 172 of the Land Transfer Act Cap 131 provides the detailed description of the land in question. The defendant claims the plaintiff should have known of the defendant’s prior interest in the property.

[2] The plaintiff, now resident in Canada, swore an affidavit in support. He said he purchased the property following a mortgagee sale, for good consideration, free of encumbrances. Since 1994 he has been the registered proprietor of the lease, and he exhibited a copy of the Housing Authority sub-lease showing registration in his name memorialised on the title.

[3] The property was originally leased to one Mahesh Surendra Rae in 1982. The plaintiff said he knew of the defendant’s occupation but that he had been advised by his solicitors that the defendant was a trespasser.

[4] Nonetheless through his then solicitors he gave notice to quit dated 3rd February 1998. The defendant did not vacate, and has never paid any rental to the plaintiff for his occupation over the years. The plaintiff has always objected to the defendant’s occupation.

[5] The defendant has to comply with section 172 of the Act in order to defeat this summons. The relevant part of that section provides:

"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;"

The onus of proof is therefore on the defendant, and to the standard "if he proves to the satisfaction of the judge a right to possession of the land": Vijay Prasad v. Satish Prasad (unreported) Civil Action No. 307 of 1996S at p.2.

[6] It is admitted, as well as established affirmatively by evidence, that the plaintiff is the last registered proprietor of the relevant land to qualify as a person who may issue the summons [section 169(a)].

Irregularities in defendant’s affidavit

[7] Plaintiff’s counsel objected to the defendant’s affidavit. The errors were of varying significance. He pointed out:

(i) That the affidavit stated it was filed by solicitors for the plaintiff, when it should have referred to the defendant.

(ii) The affidavit was not indorsed, and was in breach of Order 41 r.9(2).

(iii) The text was separated from the jurat inappropriately.

(iv) The words "Before me" were omitted above the Commissioner’s signature.

(v) And the certificate referring to the use of an Hindustani interpreter, when the affidavit was sworn, was inadequate.

(vi)

[8] None of those errors should have occurred if more care had been taken in the preparation and swearing of the affidavit. The Supreme Court Practice for 1995 at para 41/1/11 states:

"Affidavits should never end on one page with the jurat following overleaf. The jurat should follow immediately after the end of the text. The signature of the Commissioner for Oaths should be written immediately below the words "Before me."

Irregularities in the form of the jurat cannot be waived by the parties but see r.4."

[9] The affidavit was sworn before a Third Class Magistrate at Lautoka. The jurat was altered by hand, the alterations not being initialled by the Commissioner; Re Cloake 61 LJ Ch.69; Best v Woods 39 1LTR 41. The certificate was amended by the insertion of the words "through Rajnesh". The certificate did not state that the interpreter had been sworn as is also required [Order 41 r.3(4)(a)]. It must be remembered that the taking of a deponent by a Commissioner for Oaths through his or her affidavit is a judicial proceeding. The oaths of the deponent and of the interpreter are to be taken and an appropriate certificate recording both facts included in the jurat.

[10] Though I am urged to strike out the affidavit in this form, I am prepared to grant leave for the use of it in evidence pursuant to Order 41 r.4 and r.9(2).

The defence case

[11] The defendant says he had made an agreement with the previous owner to buy the lease. He took possession of the property and paid $3,000.

[12] He gives several reasons for showing cause. They are:

(a) That the plaintiff had actual or constructive notice of occupation "and probably of any interest as a purchaser."

(b) That the Housing Authority had failed to provide him with any notice.

(c) That the previous owner held the property in trust for him pending completion of the sale.

(d) That the Housing Authority, the previous registered proprietor, and the plaintiff are all guilty of fraud for the "furtive" sale to the plaintiff.

(e) And he sought leave to join the previous registered proprietor and the Housing Authority to defend the matter, to set aside the transfer to the plaintiff, and to seek damages.

Fraud

[13] In Fiji under the Torrens system of land registration, the register is everything: Subaramani & Ano v Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Registrar of Titles under the Land Transfer Act [see sections 39, 40, 41, and 42]: Fels v Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

"It is to be noticed that each of these sections excepts the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor or his agent: Assets Co Ltd v Mere Roihi.

It is these sections which, together with those next referred to, confer upon the registered proprietor what has come to be called "indefeasibility of title." The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration."

[14] Actual fraud or moral turpitude must therefore be shown on the part of the plaintiff as registered proprietor or of his agents Wicks v. Bennett [1921]30 CLR 80; Butler v Fairclough [1917] HCA 9; [1917] 23 CLR 78 at p.97.

[15] Fraud for the purposes of the Transfer Act has been defined by the Privy Council in Assets Company Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at p.210 where it was said:

"...by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Land Acts, must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shewn that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon."

Fraud: Sufficiency of evidence

[16] In Sigatoka Builders Ltd v Pushpa Ram & Ano. (unreported) Lautoka High Court Civil Action No. HBC182.01L, 22 April 2002 I had occasion to say:

"Though evidence of fraud and collusion is often difficult to obtain, the evidence here falls a good way short of a standard requiring the court’s further investigation. In Darshan Singh v Puran Singh [1987] 33 Fiji LR 63 at p.67 it was said:

"There must, in our view, be some evidence in support of the allegation indicating the need for fuller investigation which would make section 169 procedure unsatisfactory. In the present case the appellant merely asserted that he had paid the money for the purchase of the property. This was denied by both Prasin Kuar and the respondent. There was nothing whatsoever before the learned judge to suggest the existence of any evidence, documentary or oral, that might possibly assist the appellant in treating the case as falling within the scope of section 169 of the Land Transfer Act and making an order for possession in favour of the respondent."

In that case it was also held that a bare allegation of fraud did not amount by itself to a complicated question of fact, making the summary procedure of section 169 inappropriate see too Ram Devi v Satya Nand Sharma & Anor. [1985] 31 Fiji LR 130 at p.135A. A threshold of evidence must be reached by the Defendant before the Plaintiff can be denied his summary remedy. In Wallingford v Mutual Society [1880]5 AC 685 at p.697 Lord Selbourne LC said:

"With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon, in a manner which would enable any Court to understand what it was that was alleged to be fraudulent."

[17] This seems to be the position in this case. The defendant referred to an agreement to sell (to him) by the previous owner but failed to exhibit the agreement. Similarly he referred to making a payment of $3,000 for the property but exhibited no evidence of such payment such as a receipt or bank statement. He is not even certain to whom he paid the money, "this money was to the best of my knowledge paid to the Housing Authority." He also said the Housing Authority, through its officers, was aware of his interest as purchaser. If so, evidence would surely have been available of such interest. None was forthcoming.

[18] The plaintiff would have known of the defendant’s occupation of the premises, hence the issuance of the notice to quit through his solicitors. But there is no evidence of his knowledge of the defendant as a possible prior purchaser. The defendant said the plaintiff "probably" knew. There is no evidence of that, nor was there any reason to make further inquiries of the tenant as to whether he had any prior interest in the title: Hardeo Prasad v Abdul Hamid (unreported) Court of Appeal. Fiji Civil App No. ABU0059.03, 19th March 2004; Waimiha Sawmilling Co v Waioni Timber [1923] NZGazLawRp 32; [1923] NZLR 1137 at 1175; Hunt v Luck [1902] UKLawRpCh 16; [1902] 1 Ch. 428 There was nothing suspicious for the plaintiff to shut his eyes to.

[19] There is similarly no evidence of any trust established, existing, or to be inferred, between the defendant and the previous owner in connection with the property. The evidence of a "furtive" sale is non-existent.

[20] There was no letter in reply from the defendant when served with the notice to quit protesting that he the defendant, was the lawful owner.

[21] I note also that for there to be a lawful dealing in the lease there must be a prior written consent from the lessor [clause 2]. The defendant provides no evidence of such a consent for a dealing by the previous registered owner with himself.

Conclusion

[22] The defendant has failed to show cause. The plaintiff’s title as registered proprietor is indefeasible in these circumstances. The plaintiff is entitled to an order as prayed in his summons for immediate vacant possession and I so order. I order costs against the defendant of $500 inclusive of disbursements.

[23] Before parting with this file it is appropriate that I record to the parties my regret for the delay in completing this matter. Delays at Lautoka High Court have been systemic. Though there are signs that the application of an appropriate number of judges to the work at that centre is improving disposal of the backlog, regrettably this had not previously been the situation. I tender to the parties an apology for my part of the responsibility for the delay.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiff: Messrs Mishra Prakash & Associates, Lautoka.
Solicitors for the Defendant: Messrs G.P. Shankar & Co., Ba