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Ram v Lok [2011] FJHC 798; HBC320.2007 (9 December 2011)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION


CIVIL ACTION NO: HBC 320 OF 2007


BETWEEN:


BAL RAM of Toko, Tavua, Cultivator.
PLAINTIFF


AND:


CHANDRA LOK of Natabua, Lautoka, Retired Businessman.
FIRST DEFENDANT


AND:


THE REGISTRAR OF TITLES AND THE ATTORNEY GENERAL OF FIJI
SECOND DEFENDANTS


Before
Priyantha Nāwāna J.


Counsel
Plaintiff: Mr H A Sha with Mr Degei
First Defendant: Mr V M Mishra
Second Defendants: Mr J Lewaravu


Dates for Trial: 07-08 September 2011
Written Submissions: 16 November 2011 (By plaintiff)
31 October 2011 (By defendants)
Oral Submissions: 09 November 2011
Date of Judgment: 09 December 2011


JUDGMENT


INTRODUCTION


  1. Issues raised for determination in this case arise out of a lease of native land.

FACTUAL BACKGROUND


  1. One Ballaiya of Toko, Tavua, became the lessee of the Native Lease No 44656 consequent upon a transfer from Official Receiver on 11 August 1978, (Document (2) in Agreed Bundle of Documents [ABOD-2]). The native land, the extent of which is 25A 02R 08P, is situated at Toko in Tavua in the Western Division of Vitilevu in Fiji.
  2. Ballaiya died on 03 July 1999.
  3. The plaintiff claimed that the late Ballaiya (Ballaiya) executed a so-called 'Deed of Family Settlement' (DFS) in September 1982, [ABOD-1], whereby Ballaiya distributed the land among five of his children including the plaintiff-Bal Ram and the first defendant-Chandra Lok. The plaintiff, who states that he had derived entitlement to the native land by virtue of the DFS, lodged a caveat bearing No 319371 in respect of the land on 14 April 1992 with the Registrar of Titles [ABOD-6] against any future dealing.
  4. The native land, which Ballaiya held as a lessee, thus became the subject-matter of incessant litigations both during Ballaiya's lifetime and thereafter. This case is yet another such litigation between two of his sons, Bal Ram and Chandra Lok. Plaintiff-Bal Ram is relatively younger, while the first defendant-Chandra Lok is elder in the family.
  5. On 16 June 1988, Ballaiya, by a notarially executed Power of Attorney [ABOD-5], appointed the first defendant as his attorney to act '... in [his] name and on [his] behalf and in [his] interest in Fiji...'. The appointment of the first defendant as Ballaiya's attorney is not in dispute.
  6. On 25 March 1994, the first defendant, on an alleged authority under the Power of Attorney, caused the transfer of an extent of 20A 02R of the native land in issue in his name claiming that a consideration of $ 20,000.00 was paid to Ballaiya. This 'Transfer of Lease' was registered by the second defendant-Registrar of Titles under No 360347 on 10 June 1994 [ABOD-4]. The first defendant, who signed in his capacity as the attorney for and on behalf of the transferor, also became the transferee and the registered lessee of the native land in a unique factual setting.
  7. It is this 'Transfer of Lease' bearing No 360347; and, its registration that form the essence of contentious issues among the three parties in these proceedings before court.

CASE FOR THE PLAINTIFF


  1. The plaintiff, by his writ of summons dated 15 October 2007, seeks inter alia declarations that the actions of the first defendant in transferring the lease unto himself through the Power of Attorney were improper and/or fraudulent.
  2. The reliefs, as sought above, are premised on alleged unlawful and/or fraudulent conduct on the part of the first defendant as particularized by the plaintiff in paragraph 12 of the statement of claim in that:
  3. The plaintiff, in his suit against the second defendant as specifically pleaded under paragraph 19 of the statement of claim, states that the second defendant's conduct was improper and negligent by:
  4. The plaintiff, in the above circumstances, also seeks a declaration against the second defendant-Registrar of Titles on the basis that he should not have registered the said Transfer of Lease and move court that the second defendant be directed to set-aside the registration of the Transfer of Lease No 360347 unconditionally.
  5. Thus, the plaintiff challenges the self-executed Transfer of Lease by the first defendant on its substantive respects alleging fraud against the first defendant. The plaintiff also challenges the registration of the Transfer of Lease against the second defendant on procedural respects alleging that that there was, in any event, no consent of the NLTB for such a dealing of transfer of the native lease; and, that there was, in any event, a caveat against its registration.

CASE FOR THE FIRST DEFENDANT


  1. The first defendant, in his statement of defence dated 04 December 2007, denied unlawful and/or improper and/or fraudulent conduct sought to be imputed to him over the transfer of the proprietorship of the native land through the Power of Attorney. The first defendant also stated that the DFS was unenforceable as there was no consent from the NLTB for the sub-divisioning of the native land and disputed that the plaintiff had any legal right to the native lease. The first defendant pleaded that the plaintiff's claim was not properly constituted; and, it was frivolous, vexatious and an abuse of process and relied on the principle of res judicata and on the Limitation Act in order to challenge plaintiff's action.

PLAINTIFF'S EVIDENCE


  1. The plaintiff giving evidence said that the first defendant was his elder brother in the family of eight. His father, Ballaiya, was the proprietor of the Native Lease No. 44656. The plaintiff said that, in September 1982, Ballaiya executed the Deed of Family Settlement (DFS) to distribute the land in Lease No. 44656 among five children including him and the first defendant after a family meeting. The plaintiff stated that the first defendant, on the strength of the Power of Attorney, that was purported to have been given by Ballaiya, had executed a document to transfer the property in Lease No. 44656 by signing both as the vendor and the purchaser. The plaintiff said that, to the best of his knowledge, no money was paid by the first defendant to Ballaiya for the transfer.
  2. The plaintiff asserted that Ballaiya did not consent or instruct the first defendant to transfer the said land to him. The plaintiff identified the DFS at ABOD-1 and his signature appearing at the fifth line as his; and, claimed that the sixth signature to be that of the first defendant. The plaintiff stated that the relationship between him and the first defendant started to deteriorate as the first defendant kept insisting on him to work in the cane farm despite he was suffering from epilepsy.
  3. In cross-examination, the plaintiff accepted the probate being given on the Last Will dated 13 May 1992 [ABOD-7] where the beneficiaries were the first defendant and two other brothers, Raj Dewan and Ram Chandra, in respect of all the Estate of Ballaiya overriding a previous Last Will dated 25 January 1982.
  4. The plaintiff admitted that there was a case between the first defendant and one Hari Narayan in Suva where he gave evidence. Upon the DFS being shown, the plaintiff stated that both Ballaiya and the first defendant signed it and admitted that there was no consent for subdivisioning of the land from the NLTB. The plaintiff also admitted that there was a case before the Agricultural Tribunal under No. 21 of 1994, filed on 07 July 1994, claiming tenancy rights against Ballaiya and that he filed a Writ of Summons on 08 July 1994 against Ballaiya for extension of the caveat No 319371.
  5. Answering cross-examination by learned counsel for the second defendant, the plaintiff said that Ballaiya was the registered proprietor of the Native Lease in issue; and, his caveat in respect of the whole land was based on his entitlement in the DFS.

PLAINTIFF'S CAVEAT AND ITS EXPIRY


  1. The caveat No 319371 of the plaintiff was registered on 30 April 1992 at the Office of the Registrar of Titles on the Native Lease No 44656.
  2. Ballaiya, filed an application for removal of plaintiff's caveat, as recorded in dealing No 358198, on 22 April 1994. The second defendant, by letter dated 11 May 1994, gave notice of the application of Ballaiya for removal of the caveat to the plaintiff. The letter, by way of a footnote, further informed the plaintiff that, unless an order from the High Court is obtained to the contrary, the caveat would be removed after twenty one days from the date of the receipt of the notice.
  3. The plaintiff claimed that he had received notice of the application [ABOD-3] for removal of his caveat No 319371 only on 29 June 1994. And, he got the order for extension of the caveat as recorded in dealing No 362449 on 21 July 1994 in pursuance of his application dated 15 July 1994 in High Court Lautoka Case No 188/94, having cited Ballaiya as the defendant.
  4. In light of the above evidence, Mr J Lewaravu, learned counsel for the second defendant, submitted that the order for extension of the Caveat No 319371 was received after the lapse of time for such extension. It was further submitted that, as there was no caveat in force by 10 June 1994; or, an order for extension of the caveat in response to the notice of the application for removal of the caveat by Ballaiya dated 11 May 1994, '... Native Sub Lease No 44656 ha[d] been lawfully transferred to the first [d]efendant' (Paragraph 5.42 of the written-submissions for the second defendant).
  5. The Caveat No 319371, registered by the plaintiff under Section 106 of the Land Transfer Act, was on the basis of a claim that he had derived entitlement to the native land by means of the DFS of September 1982 executed among family members including the first defendant. On the other hand, the application for removal of the caveat dated 22 April 1994 under Section 110 of the Land Transfer Act, was made by Ballaiya in his capacity as the registered lessee and the caveatee of the native land in issue.
  6. A question, however, arises as to whether Ballaiya, notwithstanding the fact that he was the caveatee, could have moved for removal of the caveat as his caveatable interests in the native lease had ceased to exist with the impugned Transfer of Lease to the first defendant, if such transfer ever took place. I, however, do not propose to delve into the matter here any further. Instead, I would leave the matter for consideration in determining the overall issues in the case later in my judgment in paragraph 66.

DETERMINATION ON THE PLAINTIFF'S CAVEAT


  1. Upon consideration of the memorials on Lease No 44656 and the evidence presented before me, it is clear that the registration of the Transfer of the Lease No 360347 had been effected by the Registrar of Titles before the order of High Court in Case No 188/94 on the application for extension of the caveat was made. Therefore, when the order of court, as recorded in Memorial No 362449 dated 21 July 1994 was registered, the caveat No 319371 had expired. In the circumstances, Mr Lewaravu is right in his submission that there was no caveat in force at the time of the registration of the Transfer of the Lease No 360347 on 10 June 1994. I, accordingly, conclude that there was no caveat in force or an order from court on the native lease No 44656 against registration of any dealing as at 10 June 1994.

CONSENT OF NLTB FOR DEALINGS ON NATIVE LAND


  1. Mr Lewaravu, who represented the Attorney-General too, raised the important issue as to the requirement of 'consent' of NLTB in relation to the caveat No 319371 and submitted that the registration of a caveat on a native land amounted to 'a dealing' for which, consent of the NLTB must first have been obtained under Section 12 of the Native Lands Trust Act. Learned counsel, having relied on Pratap Investments Ltd. V Deo Investments Ltd. [2010] FJHC 148, submitted that the plaintiff's caveat was invalid in law due to the lack '...of consent from the landlord [,] that being iTaukei Land Trust Board (NLTB); and, the plaintiff, therefore, could not have relied on an invalid caveat to resist the registration of the 'Transfer of Lease' No 360347 (Paragraph 5.30 of the written-submissions of the second defendant).
  2. The above proposition, in my view, represents the correct position in law as stated by this court in upholding the decision of the learned Master in Pratap Investments Ltd. V Deo Investments Ltd (HBC Lautoka Case No 27/2010; Misc. Case No 02/2010) on 31 March 2011 on indispensability of the consent of the NLTB even in relation to an interim dealing such as registration of a caveat on native lands. Learned counsel's submission, on the other hand, fortuitously brings into focus whether the impugned Transfer of Lease No 360347, as registered by the second defendant on 10 June 1994, had the consent of the NLTB - one of the principal issues raised by the plaintiff.

EVIDENCE ON NEED OF CONSENT OF NLTB


  1. Mr Akuila Ratu, Estate officer of the NLTB was called on behalf of the plaintiff. Mr Ratu said that he had been attached to the NLTB for twenty years and that he was functioning as a Field Officer in Tavua District in Rakiraki Province having been based in Lautoka. The witness identified the Native Lease No 44656, as contained in ABOD-2 and said that it was initially a lease given to one Trikamji and subsequent dealings were recorded in terms of the memorials on the back. Mr Ratu stated that all dealings on native lands must have the consent of the NLTB under Section 12 of the Native Lands Trust Act and that Transfer of Lease No 360347 dated 25 March 1994 did not have such consent. Witness said that the consent of the NLTB is necessary for a dealing, without which, registration of a dealing on native lease could not take effect.
  2. Answering cross-examination by learned counsel for the first defendant, witness said that the NLTB accepted the first defendant as the tenant and that there was no consent for sub-divisioning of the lease.
  3. Answering cross-examination by learned counsel for the second defendant, Mr Ratu said that the transfer from Ballaiya to the first defendant was not recorded in the file and that he could not confirm that the transfer did have the consent of the NLTB. The witness asserted that the consent of the NLTB was required for the transfer to have taken effect; and, if there was no consent all dealings became invalid.
  4. Torika Goneca, Deputy Registrar at the Office of the Registrar of Titles, having counted sixteen years of service, testified on behalf of the second defendant-Registrar of Titles. Her evidence, insofar as the requirement of consent of the NLTB is concerned, needs be considered at this juncture. Ms Goneca, answering cross-examination of learned counsel for the plaintiff said that the consent of the NLTB was required and if it is not available, the Registrar of Titles refuses to deal with the land. Ms Goneca was clear in her evidence that the Transfer of Lease No 360347 did not have the consent of the NLTB. Responding to a very precise question as to how the Registrar of Titles could have accepted the Transfer of Lease No 360347 for registration, she said: 'I cannot answer'.

MR MISHRA'S SUBMISSIONS ON CONSENT OF NLTB


  1. Mr V M Mishra, learned counsel for the first defendant relied on Phalad v Sukh Raj FJCA 43/1978 (08 December 1978) and underscored the requirement of the consent of the NLTB for the Deed of Family Settlement (DFS) relied on by the plaintiff to be valid in law. As the DFS did not have the consent of the NLTB, Mr Mishra submitted that it (the DFS) was invalid; and, '... the plaintiff's claim based on the [DFS] were frivolous and without any basis (Paragraph 40 of written submissions).
  2. Mr Mishra's submission, founded on a judicial precedent on Section 12 of the Native Lands Trust Act, needs be considered in the wake of his own admission at the oral hearing on 09 November 2011 that the first defendant had not obtained the consent of NLTB for the Transfer of Lease No 360347 that is being impugned in these proceedings. Mr Mishra's concession on the absence of the consent of the NLTB for the first defendant's Transfer of Lease is significant in the context of his own reliance on such necessity for dealings on a native land because it impacts the case against the first defendant on the same point.

THE NATIVE LANDS TRUST ACT


  1. The Native Lands Trust Act (NLT Act) in its long title states that the Act is meant to control and administer the native lands. Section 5 of the NLT Act states that:

(1) Native land shall not be alienated by Fijian owners whether by sale, grant, transfer or exchange except to the Crown, and shall not be charged or encumbered by native owners, and any native Fijian to whom any land has been transferred heretofore by virtue of a native grant shall not transfer such land or any estate therein or charge or encumber the same without the consent of the Board.


(2) All instruments purporting to transfer, charge or encumber any native land or any estate or interest therein to which the consent of the Board has not been first given shall be null and void.


  1. Section 8 of the NLT Act states:

(1) Subject to the provisions of section 9, it shall be lawful for the Board to grant leases or licenses of portions of native land not included in a native reserve for such purposes and subject to such terms and conditions as to renewals or otherwise as may be prescribed.


(2) Any lease of or license in respect of land under the provisions of this Act shall be made out from and in the name of the Board and such lease or licence shall be executed under the seal of the Board.


  1. Section 12 of the Act provides that:

(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void. ...


(Emphasis added)


  1. The scheme and symmetry of the NLT Act, therefore, does not provide for absolute alienation of native lands to any person excepting the State. Licenses or leases on native land could be effected only on the authority of the NLTB. Section 12 furnishes an absolute bar against any sale, transfer, sublease, alienation or a dealing of any kind without the consent of the NLTB; and, declares that such dealings are null and void as opposed to them being declared voidable.
  2. It is clear, even on a cursory glance, that the NLTB is statutorily created to regulate and supervise all dealings relating to native lands under the NLT Act with clear and unambiguous provisions in place. The Act specifically highlights that the NLTB's consent for any dealing is inviolable; and, any dealing without the consent is declared null and void.

JUDICIAL APPROACH ON CONSENT OF NLTB


  1. In Chalmers v Pardoe [1963] All ER 552, Privy Council held that an erection of a building on a native land in consequence of a friendly arrangement with the lessee of the native land constituted 'a dealing' within the meaning of Section 12 of the NLT Act. Such a dealing was held to be unlawful and court, even in equity, refused relief on claims of the plaintiff for monies expended on buildings on the native lease. The Privy Council concluded that:

It would seem to their lordships that this [was] one of the things that s. 12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from [the defendant]: but whatever effect this might have on the remedies the [NLTB] would otherwise have against [the defendant] under the lease, it cannot make lawful that which the ordinance declares to be unlawful'.


Their lordships after full and anxious consideration of the whole matter have reached the same conclusion as the Court of Appeal, namely, that a dealing in the land took place here without the prior consent of the [NLTB] as required by s. 12 of the ordinance: that the dealing was accordingly unlawful: and that in these circumstances equity cannot lend its aid to the plaintiff...'


(Emphasis added)


  1. The Fiji Court of Appeal in NLTB v Subramani [2010] FJCA 9, having applied the principles in Chalmers v Pardoe (supra), observed per Goundar JA and Inoke JA that:

[47] It [is] our respectful opinion that the decision in Chalmers v Pardoe protects the interests of the landowners because tenants who fail to notify the NLTB of dealings in the land under lease will get no assistance from court.


[48] However, if the NLTB or the landowners themselves directly involve themselves in such dealings, [...,] then as a matter of general equitable principle, it would be quite unconscionable, in our respectful view, for them to be able to escape the consequences of their actions when things go wrong by pleading illegality under the Act.


CONSENT OF NLTB AND TRANSFER OF LEASE


  1. Mr Lewaravu, in his written submissions, states that the consent of the NLTB was a matter for Balliaya, the registered lessee; and, Section 12 does not require the Registrar of Titles to have obtained such consent of the NLTB. Mr Lewaravu further submitted that such consent had not been obtained from the year 1950 and all dealings, in that event, would be rendered invalid. Mr Lewarau raised the issue that the NLTB had not been aggrieved by lack of its own consent for such dealings and that the first defendant was considered as its tenant.
  2. In effect, Mr Lewaravu alludes to the proposition that notwithstanding the absence of the consent of the NLTB, the act of registration of Lease No 360347 was lawful as there was no any action initiated by the NLTB to annul the transfers. Mr Lewaravu's contention, on one hand, is contrary to his own submission that the consent was essential even for a tentative and interim dealing such as registering a caveat when he dealt with that aspect in relation to the plaintiff as set-out in paragraph 27 above. On the other hand, Mr Lewaravu's contention fails to appreciate 'void' and 'voidable' dichotomy and their legal underpinnings, which are of essence in the context of facts of this case.
  3. What the NLT Act declares is that any transfer, sublease or any dealing on a native land without the consent of the NLTB is null and void. The clear and unambiguous language in Section 12 of the NLT Act makes any such dealing a nullity ab initio and requires no any action by the NLTB to make such dealing a nullity.
  4. Learned counsel submitted that no consent of the NLTB had been obtained for dealings from the year 1950 up until now, which, indeed might risk all those dealings becoming unlawful. I am of the view that perpetuation of an illegality would not bring in the result of legality by effluxion of time. Any contrary conclusion would, in my view, be obnoxious to the clear and unambiguous language in Section 12, in particular, and to the scheme and symmetry, in general, of the Act.

DETERMINATION ON CONSENT OF NLTB


  1. There is no evidence in this case that the landowners and/or the NLTB were involved in any way in respect of the impugned dealing of Transfer of Lease No 360347 that benefitted the first defendant himself by his act of transferring the proprietorship of the native land through the Power of Attorney of his father, the deceased Ballaiya. Therefore, this case does not fall into the category of cases that could be excluded from the application of the principles of Chalmers v Pardoe (supra) on the basis of the decision in NLTB v Subramani (supra).
  2. In the result, I hold that the Transfer of Lease No 360347 in the name of the first defendant is an unlawful dealing in the absence of the consent of the NLTB. Such transfer is null and void ab initio within the meaning of Section 12 of the NLT Act. The Registrar of Titles is mandated only to register lawful dealings on native lands under the provisions of the Land Transfer Act; and, he is under a legal duty to satisfy himself in regard to the availability of the consent of the NLTB when he registers dealings on native lands. Failure to do so will result the purported registration null and void ab initio without any legal effect whatsoever.
  3. The above conclusion determines the case for the plaintiff against the second defendant on the procedural aspect of consent of the NLTB for the registration of the Transfer of Lease No 360347 to become valid.

COMPLAINT OF FRAUD VIS-À-VIS FIRST DEFENDANT'S EVIDENCE


  1. I will now proceed to consider the remaining substantive issue of 'fraud' against the first defendant in executing the transfer in his name on the alleged authority of the Power of Attorney. In doing so, I am conscious, perhaps, of the risk of treating a determination on any issue arising out of the execution of the Transfer of Lease in the absence of the consent NLTB redundant. I, nevertheless, choose to proceed with a view to avoid this principal and contentious issue remaining outstanding.
  2. The first defendant in his affidavit evidence-in-chief dated 03 May 2011 admitted that the native land in issue belonged to his father, Ballaiya. He said that he had been paying approximately $100.00 - $200.00 a week to meet his father's needs over a period of some years. The first defendant said that the monies he had paid for his father's upkeep were considered as the consideration in the sum of $ 20,000.00 for the Transfer of Lease, which was effected through the Power of Attorney. The first defendant identified the Power of Attorney No 16019 dated 16 June 1988 at ABOD-5. He said that he signed himself for the transferor and became the transferee as well in the Transfer of Lease No. 360347.
  3. Answering cross-examination by learned counsel for the plaintiff, the first defendant said that he did not sign the DFS and said that the plaintiff would have forged his signature on that document. He said that he still had doubts as to his father's signature on the DFS because his father was not happy on how the land was being looked after. Answering further, the first defendant admitted that his father Ballaiya should have signed himself the Transfer of Lease; and, that the Power of Attorney was for him to act in the absence of the principal. The first defendant said that he was acting on the advice of the solicitor, which was why he signed the Transfer of Lease despite Ballaiya being present at the time of executing the Transfer of Lease.
  4. The first defendant further said that he did not have records regarding his payments; but, by 25 March 1994, he had not paid the consideration in full. He claimed that monies that he had paid to his father from time to time could have exceeded $ 20,000.00.
  5. Witness Chandra Wati was called by the first defendant on his behalf. She said that she was the daughter of Mr Satya Nand, who was the eldest son of Ballaiya and the eldest brother of the plaintiff and the first defendant. She said that she had seen the first defendant giving Ballaiya money on a number of occasions and such money was well over $ 20,000.00 for a period of time. She stated that she had personally heard Ballaiya telling the first defendant to use the Power of Attorney to transfer the Native Lease. She said that she looked after Ballaiya for a few years before his death in 1999.
  6. The complaint of the plaintiff is that the first defendant, by transferring the property of their father, Ballaiya, in favour of him (the first defendant) on the strength of the Power of Attorney, abused his powers and acted against the spirit of the Power of Attorney, which allegedly constituted improper and fraudulent conduct.

POWER OF ATTORNEY AND TRANSFER OF LEASE


  1. The scope of the Power of Attorney and the analysis of the evidence, as enumerated above, are of importance to consider the complaint of the plaintiff.
  2. Halsburry's Laws of England; Fourth Edition, Page 438 defines a Power of Attorney. It states:

An instrument conferring authority by deed is termed a power of attorney. The person conferring the authority is termed the donor of the power, and the recipient of the authority, the donee. A power of attorney is construed strictly by the courts, according to well recognized rules, regard first being had to any recitals which, showing the general object, control the general terms in the operative part of the deed.


General words used in conferring the power are construed as limited by reference to the special powers conferred, but incidental powers necessary for carrying out the authority will be implied. Thus, a power granted to the donee to manage certain property followed by general words giving him full power to do all lawful acts relating to the donor's business and affairs... does not necessarily include authority to indorse bills, for the general words are construed as having reference to managing the donors property for which indorsing bills may not be incidental or necessary...


  1. It is stated that:

'All attorneys are, in fact, agents, but all agents are not necessarily attorneys in fact. ... By attorneys, in fact, are meant persons who are acting under special power created by a deed...


Powers of Attorney are strictly construed. This rule applies not only to the interpretation to be placed upon each individual power conferred by the instrument; it applies with equal force to the purpose which the instrument is construed to subserve from a general reading of it as a whole' (At page 22).


(Powers of Attorney: F Bower Alcock; London Sir Isaac Pitman & Sons, Ltd; 1935 Pg. 1 and 22 respectively).


  1. No evidence was adduced on any incapacity or non-availability on the part of Ballaiya necessitating the appointment of an attorney to act for him. There is, therefore, no evidence before this court as to what compelled the late Ballaiya to appoint the first defendant as his attorney or the agent on 16 June 1988 to act ... for [Ballaiya] in [his] name and on [his] behalf and in [his] interest in Fiji in all matters connected with or pertaining to [his] affairs and property in Fiji....
  2. While, it may be open to a person to appoint another to act for him on the authority of a Power of Attorney without assigning any reason in the recital of the instrument, the need for such appointment should, however, be considered when an allegation of fraudulent and/or improper conduct is made against the donee of the Power of Attorney.
  3. Interestingly, there is no evidence in regard to any acts performed by the first defendant as the attorney or the agent on behalf of the late Ballaiya for almost six years except for the Transfer of Lease in his (the first defendant's) name on 25 March 1994. The only evident act performed by the first defendant on the authority of the Power of Attorney, therefore, was to extinguish the very property that he was appointed to look after for and on behalf of Ballaiya by transferring it in his name.
  4. As observed above, general words under the Power of Attorney need be construed as having reference to managing the donor's property; and, transfer of the property is neither incidental nor necessary. There are, admittedly, no special powers by which such a transfer could have been sanctioned by the donor, the late Ballaiya. In the circumstances, I conclude that the Power of Attorney was abused; and, the first defendant acted against its spirit when he purported to transfer the property by the Lease of Transfer No 360347 to him.

FRAUD DEFINED


  1. In the case of Deo Narayan and Another v Sigamani and Others [2008] FJHC 204; 05 September 2008, Jiten Singh J., considered the scope of fraud in relation a land transfer under the Land Transfer Act. His Lordship applied the definition assigned to 'fraud' in Assets Co. Ltd. V. Mere Roihi [1905] UKLawRpAC 11; (1905 AC 176) where the Privy Council stated that fraud meant actual fraud, i.e. dishonesty of some sort and not what is called constructive fraud or equitable fraud.
  2. In Waimiha Sawmilling Co. Ltd. V. Waione Timber Milling Co. Ltd. (1926) AC 101, the Privy Council again dealt with the issue of fraud and concluded that fraud is suggestive of some act of dishonesty. It was further held that that if the designed object of a transfer is to cheat a man of a known existing right that is fraudulent.

ANALYSIS OF EVIDENCE OF FIRST DEFENDANT


  1. In this case, the first defendant stated that the consideration for the Transfer of Lease was made of his payments of monies from time to time for his father, the late Ballaiya's, upkeep. While Ballaiya himself did not have any absolute right whatsoever to effect such a transfer of property for any valuable consideration, the gratuitous payments made by the first defendant, presumably, out of love and affection to the father could not, in any event, be considered to have constituted the valuable consideration for the sale of property rights. Such payments, if made, were not made in contemplation of any transfer or sale of any property by the late Ballaiya; and, for that reason there could not have been ad idem consensus or meeting of minds for the Transfer of Lease to have taken effect. Therefore, one of the most fundamentals to constitute a sale is absent; and, the purported sale of proprietary rights over the native lease is legally flawed resulting in no legal force or avail.
  2. I am of the view that the above deficiency cannot be cured by relying on the evidence of Chandra Wati later at this stage, who is, however, not disinterested but found to be a partial witness towards the first defendant. Her evidence was designed only to mechanically match the version for the first defendant. While holding that no evidential weight can be attached to her testimony having regard to the provisions in Section 6 (e) of the Civil Evidence Act No 27 of 2002 for the reason set about above, I am also of the view that her evidence, in any event, offends the parol evidence rule as the consideration does not refer to such piecemeal payments over a period of years..
  3. It appears circumstantially that, even though the first defendant claimed that the property was transferred, Ballaiya continued to defend his rights as the proprietor of the native land in issue when he resisted the caveat filed by the plaintiff, as referred to in paragraphs (21) and (25) above, despite the cessation of his caveatable interest after the Transfer of Lease. Secondly, Ballaiya was sued by the plaintiff for latter's agricultural tenancy rights before the Agricultural Tribunal on 07 July 1994 and the first defendant did not come forward to defend his proprietorship even after the purported Transfer of Lease. Therefore, on no occasion, had this Transfer of Lease surfaced during the lifetime of Ballaiya. Instead, whenever the native land became the subject matter of litigation, it was only Ballaiya and Ballaiya alone who came forward and defended his proprietorship after 25 March 1994; but, not the first defendant.
  4. Therefore, in as much as Ballaiya could not be seen to have raised opposition to the Transfer of Lease by the first defendant on the Power of Attorney before his death in 1999, as emphasized by learned counsel for the first defendant, it is more important to note that there is no evidence whatsoever that such a transfer had ever surfaced during Ballaiya's lifetime either. Instead, evidence is to the contrary, as shown in the foregoing analysis, which militates against the first defendant on the scores of absence of knowledge and consent of Ballaiya for the Transfer of Lease on the Power of Attorney by the first defendant.

DETERMINATION ON FRAUD


  1. Calanchini J. in the case of Mudu v Tavueni Multiracial Probationary Land Purchase Co-operative Society Ltd [2010] FJHC 274; HBC 22/2004 adopted the dictum in Faryana v Chocny [1952] 2 DLR 354 at 356-7, formulated as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction to the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions... .Again, a witness may testify what he sincerely believes to be true but he may be quite honestly mistaken. For a trial judge to say 'I believe him because I judge him to be telling the truth' is to come to a conclusion on consideration of only half the problem. In truth it may easily be self –direction of a dangerous kind.


The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion'.


(Emphasis added)


  1. I suitably adopt the above dictum in this case and conclude that, the preponderance of probabilities on an evaluation of evidence of the plaintiff and the defendant highly, if not exclusively, weigh in favour of the fact that the conduct of the first defendant was improper and unlawful. The first defendant got the property in the native lease No 44656 transferred in his name having abused the Power of Attorney; and, acted against the spirit of the Power of Attorney.
  2. Evidence shows that the first defendant engaged himself in a conduct that deprived Ballaiya of his existing right to the native lease for the first defendant to gain the benefit of proprietorship to the land without the knowledge of Ballaiya. I conclude that the above conduct of the first defendant, upon an analysis of all facts and circumstances, is fraudulent within the meaning of judicial dicta discussed above. I, accordingly, hold that the execution of the Transfer Lease No 360347 involved a fraud.

THREE-PRONGED CHALLENGE TO PLAINTIFF'S ACTION


  1. Mr Mishra contended on behalf of the first defendant that the plaintiff's action is time-barred under the Limitation Act. I am of the view that the plaintiff's action cannot be legally limited by time in view of the complaint of fraud alleged in the statement of claim and proved at the trial. The plaintiff, in my view, is entitled to invoke the protection under Section 15 of the Act to sustain the suit against both defendants against limitation.
  2. In addition, learned counsel relied on the principle of res judicata to challenge the sustainability of the plaintiff's action. It appeared that the challenge was founded on the basis that there was a case by one Hari Narayan against the first defendant under case No 033/2005, which was not interfered by Byrne J. by disallowing an application for leave to appeal out of time by Hari Narayan. For a plea of res judicata to succeed, the action must have been between the same parties for the same cause of action. It does not appear to me that those criteria are satisfied in this case for the challenge to be successful. I accordingly reject the plea of res judicata.
  3. Moreover, the first defendant also challenged the plaintiff's action on the basis of the absence of locus standi. The plaintiff claimed relief on the basis of the DFS, which related to the native lease insofar as the distribution of proprietorship is concerned among several children including the plaintiff and the first defendant. The DFS suffered from the same infirmities that the first defendant's Transfer of Lease suffered at the point of time of initiation of these proceedings before court. Even though, the plaintiff ceased to be a beneficiary of the second last will of 19 May 1992, his right to seek court's intervention to ameliorate his concerns over the alleged fraudulent conduct of the first defendant relating to the Transfer of Lease, having relied on his entitlement in the DFS, could and should not, in my view, be denied in a civil suit such as this. I am, therefore, not inclined to accept the contention of the first defendant in regard to the absence of locus standi for the plaintiff to initiate and maintain these proceedings. I, accordingly, reject the challenge based on absence of locus standi.

TORRENS SYSTEM, INDEFEASIBILTY THEORY AND FIRST DEFENDANT'S TITLE


  1. Learned counsel for the first defendant had devoted substantially to deal with the doctrine of infeasibility of title under the Torrens System having relied on a series of case precedents. The doctrine applies, in my view, to safeguard the title of the bona fide purchaser against the predecessor in title, which is not the case here. In this case, what is challenged is the very Transfer of Lease by the first defendant for the first defendant on the Power of Attorney and its registration. I hold that learned counsel's submissions are inapplicable to the facts of this case and they appear to me as misconceived.

CONCLUSIONS AND ORDERS


  1. I, accordingly, hold that the Transfer of Lease No 360347 dated 25 March 1994 is invalid and unlawful in law. The second defendant could not have registered the said Transfer of Lease No 360347 under the law and its purported registration is invalid and unlawful ab initio.
  2. In the result, I grant the declarations as prayed for in paragraphs (c) and (f) of the prayer against the first defendant. I also grant the declaration prayed for in paragraph (d) of the prayer against the second defendant only to the extent that the second defendant was negligent in registering the Transfer of Lease without the consent of the NLTB and such registration is invalid and unlawful.
  3. The plaintiff's action succeeds only to the extent of receiving above reliefs.
  4. I order that the first and the second defendant each shall pay costs of this action to the plaintiff in an amount of $ 1250.00 each, the total being $ 2500.00, on or before 31 December 2011.
  5. Orders accordingly.

Priyantha Nâwâna
Judge


High Court
Lautoka
09 December 2011

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