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Kumar v Vuiyasawa [2012] FJHC 1002; HBC356.2011 (2 April 2012)

IN THE HIGH COURT OF FIJI
(CENTRAL DIVISION) AT SUVA
EVICTION PROCEEDINGS

Civil Action No. HBC 356 of 2011

BETWEEN:

VINESH KUMAR

of Laucala Beach Estate Suva in the Republic of Fiji Bank Officer.

PLAINTIFF

AND :

MS VUIYASAWA

of 4 Jaya Ben Place, off Kanavi Street Samabula in the Republic of Fiji.

DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. Lateef for the Plaintiff

Ms. Malimali Barbara P. Briar for the Defendant

Date of Hearing : 8th March, 2012

Date of Ruling : 2nd April, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff who purchased the property from the mortgagee sale instituted this action for eviction from the premises. The Defendant was neither the mortgagor nor a person who had any proprietary right over the property in issue, but she has occupied the property as her 'family home'. The Defendant as well as the previous proprietor knew about the mortgage and also about the mortgagee sale, and no caveat was lodged. The mortgagee sale was advertised on April and May, 2011 and the transfer was effected in October, 2011. No caveat was lodged, and the Plaintiff obtained the transfer subject to fraud exception in the Land Transfer Act. The Defendant is not alleging fraud against the Plaintiff, but against an employee of mortgagee.
   

2. FACTS
   

2. The Plaintiff is the last registered proprietor of the Certificate of Title No 11892 being Lot No 18 on deposited plan No 3029 comprising 33.1 perches. The said property was transferred to the Plaintiff after a mortgagee sale on 13th October, 2011.
   
3. The premises in issue was transferred to the previous proprietor on 2nd April, 2003 and it was subject to several mortgages and finally it was mortgaged to Caregivers Incorporated who advertised the said property in pursuant to the said mortgage on a daily news paper on 30th April, 2011 and also on 14th May, 2011.
   
4. The Defendant is only an occupant of the premises who claims that it is her 'family home'. She has not alleged any proprietary right established in law.
   
5. The Defendant is making allegations of misconduct by an employee of Caregivers International, the previous mortgagees of the property, where even the Defendant's mother is one of the Directors and the affidavit in opposition deals with the said issue, and I would not repeat the same here for obvious reasons.
   

100. LAW AND ANALYSIS
     

6. The Defendant has not alleged a fraud against the Plaintiff and in her affidavit in opposition comprising of 49 paragraphs and numerous annexed documents she is alleging some misconduct of an employee of the mortgagee, Caregivers International and the failure of said employee to pay tax liability of the mortgagee that has resulted in the sale of the mortgaged property by the mortgagee. Even if I accept all the allegations made by the Defendant it does not establish a right to possession and I will not include the said allegations in the affidavit in opposition as they are irrelevant to the issues before me. If proved that may establish a fraud, against an employee of mortgagee.
   
7. Section 38 of the Land Transfer Act, provides that the registered instrument to be conclusive evidence of title, subject to fraud. The registration is conclusive and it overrides any other unregistered right. The right the Defendant and his mother had over the property was subject to the mortgage, there is ample evidence that everyone, including the Plaintiff and her family members were aware of the mortgage as well as the mortgagee sale, and since neither the Defendant nor his mother registered a caveat on the property, there was no notice of any subsequent arrangements or other connections with the mortgagor to the purchaser of mortgagee sale. The alleged misconduct of mortgagee and or an employee of the said company was not known to the Plaintiff as there was no caveat filed and there was no notice of the alleged incidents at the Caregivers Services (mortgagee) to prospective buyers and the parties have not taken steps to notify the others of the future dealings on the property. So, no right to possession established by the Defendant unless on the fraud is established in terms of Section 38 of the Land Transfer Act which state as follows
   

"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".

8. In Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) Justice Gates (as his lordship then was) held in an application for eviction in terms of Section 169 of the Land Transfer Act and I cannot do better in succinctly, and precisely defining the exception of 'Fraud' in relation to Land Transfer Act as such I quote it in full the laconic determination on the exception of 'Fraud' as stated by His Lordship Gates (as he then was) below.
   

"Fraud

[13] In Fiji under the Torrens system of land registration, the register is everything: Subramani & 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 shown 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." (emphasis is added)

9. 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."

10. It is clear the averments contained in the affidavit in opposition do not contain allegation against the Plaintiff and or his agent and the indefeasibility of the title is not affected, by the allegations contained in the affidavit in opposition.
    
11. So the Defendant is required to show a right to possession of the premises in terms of Section 172 which states as follows
    

"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...."

12. The Defendant has failed to establish a right to possession, and the Plaintiff's title is indefeasible.
    

4. CONCLUSION
   

13. The Defendant in the affidavit in opposition alleging some fraudulent activities of an employee of Caregivers Services, which was the mortgagee of the property. Any act or misdeed of an employee cannot be a reason to vitiate the deed of transfer in pursuant to the mortgagee sale. Even assuming that the allegation contained in the said affidavit in opposition is proved, there is no fraud against the Plaintiff. In the laconic determination of Gates J (as he then was) Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) a bare allegation of fraud did not amount by itself to a complicated question of fact, making the summary procedure of section 169 inappropriate. The Defendant has not even made a bare allegation of fraud against the Defendant, instead alleging fraud against an employee of the mortgagee. The actual fraud by the registered proprietor or his agent is needed to satisfy the exception of fraud as held in Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, PC. The mere fact that Plaintiff might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make does not itself prove fraud. (As held in Asset Co (supra)). The Defendant's mother is admittedly a director of the said mortgagor. The Defendant is not alleging fraud on the part of the Plaintiff and or his agent. So, the title to the Plaintiff is indefeasible the Defendant was neither the mortgagor nor a person who claims any improvements to the property. No proprietary estoppel is established. The Defendant has not established a right to possession of the property. The allegations that are made in the affidavit in opposition clearly do not establish a right to possession as recognized in the law. I will order vacant possession of the property, and considering the facts of the case I will not order any cost.
    

5. FINAL ORDERS
   

1. The Plaintiff is granted vacant possession of the premises described in the summons for eviction immediately.
   
2. No cost.
   

Dated at Suva this 2nd day of April, 2012.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva