IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 458 of 2007

BETWEEN:

Naresh Chand
Plaintiff

AND:

Rosy Chand
1st Defendant

AND:

Suva City Council
2nd Defendant

AND:

Housing Authority
3rd Defendant

Appearances: Mr Kunal Singh for the plaintiff
Mr P. Salele for the first defendant 
The second defendant was unrepresented
Date of hearing: 3rd May, 2012
Closing submissions of the plaintiff filed on 18 May,2012

JUDGMENT

1.	In these proceedings, the plaintiff, seeks to recover possession of a state lease of land. The statement of claim recites that in 2002, the plaintiff permitted the first defendant, his brothers' wife, to stay on that property temporarily, without consideration. It was mutually agreed that the said licence or invitation was terminable, upon the plaintiff giving reasonable notice to the first defendant to vacate the property. On 12th January, 2006, the plaintiff issued a notice to quit through his solicitors to the first defendant. The first defendant remained.

The statement of claim proceeds to state that the first defendant has erected a building adjoining the existing building, without the approval of the second and third defendant, the Suva City Council and Housing Authority respectively. It is alleged that the second defendant failed to stop the construction, despite the complaints of the plaintiff. 
The first defendant has rented out the premises, despite not possessing a certificate of completion. It is stated that the third defendant has threatened to sell the property, if the city rates are not paid. 

The plaintiff also claims loss of mense profit at the rate of $200.00 from January,2006, to September, 2007, totalling a sum of $ 4200, on the basis he has been deprived of the use of the property. He also claims losses of opportunity to develop the property, arrears of city rates in a sum of $3,000.00, an order that the first and second defendants demolish the newly-erected building on the said property and remove all materials and general damages.

The first defendant's statement of defence 

The first defendant, in her statement of defence, states that she has an equitable interest in the property. The basis of her claim is as follows. In August 1982, her husband and his father had purchased the property from the third defendant. Her husband had paid the purchase price in instalments, until 1993, when the property was fully paid for. The first defendant alleges that in order to assist in the plaintiff's visa application to travel overseas, her husband and his father had transferred their undivided half shares in the property, to the plaintiff. Her husband had done so on the understanding that the plaintiff would re-transfer the half share to him, when he returned. 

It is alleged that on 1 May, 2002, her husband had applied to the third defendant for consent to transfer his half share to the plaintiff, but since the third defendant had not registered the sublease, the third defendant issued the sub-lease directly to the plaintiff. The deceased died on 20 December 2002, and the plaintiff has refused to re-transfer the half share to the deceased's estate. 

The first defendant counter-claims for specific performance of an oral agreement made between her deceased husband and the plaintiff to return the undivided half share of the property to the estate of her husband, Muni Chand Deo. As an alternative cause of action, the first defendant pleads that the plaintiff acquired the defendant's half-share in the property, by way of fraud. 

The second defendant's statement of defence 

The second defendant, in its statement of defence, states that the plaintiff had not lodged an application for approval for construction of the building. It has no records of any complaint made by the plaintiff of the alleged breach by the first defendant and denies that the plaintiff has consequently, suffered loss or damages. 

The second defendant states that it has a charge on the property, for non-payment of city rates. The alleged unlawful occupation of the property is not a reason for the plaintiff, to stop paying the rates. The statement of defence concludes by stating the claim against the second defendant is misconceived.

The plaintiff's reply 

The plaintiff, in his reply to the statement of defence and defence to the counter-claim, states that his late brother and father transferred their shares in the property to him,since they were unable to meet rental and city rates payments. The plaintiff denies that there was an oral agreement to re-transfer the half share to his late brother, as alleged and states that the alleged oral agreement is contrary to section 59 of the Indemnity, Guarantee and Bailment Act.

The plaintiff had discontinued the action against the third defendant. 

2.	The hearing

The plaintiff's testimony

The plaintiff commenced his testimony by producing a sub-lease from the third defendant, in his favour. He stated that the property was transferred to him by his brother(the first defendant's husband), as the latter was migrating to New Zealand. In support, he produced a letter dated 1st May, 2002, from his father and brother addressed to the Chief Executive of the third defendant, addressing the reasons for the transfer. The plaintiff denied that his brother had transferred the property, in order that he (the plaintiff) could obtain a visa to go overseas. He said he did not have a valid passport and had no intention of going overseas.

The property was purchased in 1982, by his father, Muni Deo from his FNPF funds and funds sent from his brothers residing overseas. No payments were made for the purchase of the land by the first defendant's husband, who was a panel beater and did not have a full time job. His late brother had moved to Tonga and New Zealand. When he came back in the latter part of 2002, he had asked the plaintiff for a place to reside. The plaintiff's late brother had then, built a temporary house on the property. The second defendant had given the plaintiff notice to dismantle the property, since this was built without its approval. At this time, the property was registered in the plaintiff's name. There is a charge on the property for arrears of city rates in a sum of $ 6000.

Counsel for the first defendant, Mr Salele, in cross-examination, referred the plaintiff to a summary of payments made to the third defendant. The plaintiff then, agreed that payments were made by his late brother. The plaintiff refuted the contention that the property was fraudulently transferred to him. 

The first defendant's evidence 

The first defendant testified that her late husband had bought the property from his earnings, in Fiji. Her father in law was added as a co-owner, as her husband was single, at the time of purchase. The policy of the third defendant was that a single person could not purchase land. She stated she had heard the plaintiff telling her late husband that he requires the land, in order to travel overseas and that he would return the property, upon obtaining the visa. 

She disputed that her father-in-law had signed the letter dated 1st May, 2002, relied on by the plaintiff. She said her father-in-law had suffered a stroke and could not write. Her husband had told her that his father had not gone to the third defendant's office. 

It transpired in cross-examination, that in April, 2002, the first defendant's husband had built a structure on the property within a period of one month, after he and his family returned from New Zealand.

3.	The determination

The issues which lie at the heart of this case, as recorded at the pre-trial conference, are whether the defendant has a legal or equitable interest in the property and whether the plaintiff had obtained the sub-lease by fraud, as alleged by the first defendant. 

The first defendant relies on a conversation she heard between the plaintiff and her late husband, where the plaintiff had told her late husband that he requires the land, in order to travel overseas and that he would return the property, upon obtaining the visa.

The answer to this contention lies in section 59(d) of the Indemnity, Guarantee and Bailment Act,(cap 232) which precludes a party from enforcing an agreement relating to land "unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized". Accordingly, the oral contract pleaded by the first defendant, which was not proved, is invalid and unenforceable. 

I find the evidence in favour of the plaintiff, compelling. Apart from the lease in his name, there are two other documents that fortifies the plaintiff's case. The first is the formal application made by the father and brother of the plaintiff to the third defendant, for consent to transfer the property to the plaintiff. The second is a letter dated 1st May, 2002,written in manuscript and signed by the plaintiff's father and brother to the third defendant, in the following terms:

" I Muni Deo and Muni Chand Deo hereby wish to transfer the above paid property to Naresh Chand true natural love and affection.

As my father namely Muni Deo is a stroke patient and I am migrating to NZ in a few months time I wish to transfer the property to my younger brother who is looking after this property.
Your urgent attention to transfer the above property will be highly appreciated"

As regards, the application made to the third defendant, the first defendant asserted that the plaintiff's father had a stroke and did not sign nor visit the third defendant's office. This assertion and the contention that her husband had made payments towards the purchase, were unsubstantiated by the first defendant. The plaintiff's response to the first assertion was that his father had encountered a stroke, a few years prior to 2002, and had recovered. The plaintiff said the application for consent to transfer the property to him was signed by his father before the third defendant. Significantly, no allegation was made by the first defendant that her husband had not signed the application made to the third defendant.

The first defendant pleads the same facts and alleges fraud, as an alternative cause of action. It is contended that the plaintiff deceived her husband into believing that if he transferred his half share in the property to the plaintiff, the plaintiff would transfer it back to him. In my view, this is inconsistent with the first cause of action. In any event, the first defendant has not made out a case of fraud. In the absence of fraud, the plaintiff as registered proprietor has an indefeasible title to the land, in terms of section 39(1) of the Land Transfer Act(cap131). 

Section 39 has its counterpart in Australia and New Zealand. In Jaideep Kishore v Krishna Kumari and Diven Balram, (2001) 1 FLR 299 at page 303 Gates J (as he then was) quoted the following passage from Fels and Another v Knowles,(1907) 26 NZLR 604 at 620 which contains the essence of the principle of indefeasibility of title:

"The cardinal principle of the statute is that the register is everything, and that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world".
(emphasis added)

His Lordship also cited Assets Company Ltd v Mere Rothi, (1905) AC 176 at pg 210 where Lord Lindley defined fraud for the purposes of the Land Transfer Act as "actual fraud, ie dishonesty of some sort, not what is called constructive or equitable fraud".

In my judgment, the plaintiff is entitled to vacant possession of the property. The plaintiff had not granted the first defendant license to occupy the property in perpetuity. The first defendant admits she received the notice to quit dated 12th January, 2006 . Accordingly, the plaintiff's claim for mense profit at the rate of $200.00 from January,2006, to September, 2007, totalling a sum of $ 4200, succeeds. The claim for general damages was not established, and is declined.

The first defendant's husband had erected a temporary building on the property.This must be removed by the first defendant. It is axiomatic that city rates are paid by the owner of the property, which in the present case, is the plaintiff. The claim by the plaintiff for payment of arrears of city rates is declined.

4.	Orders

I make order as follows;

a)	The first defendant shall give the plaintiff vacant possession of housing authority sub-lease no. 510627 comprised in state lease no.4283, lot 48 on DP 3876 situated at Raiwai, within a period of two months from the date of this judgment.

b)	the first defendant shall demolish the newly-erected building on the said property and remove all materials, within the period of two months .

c)	The first defendant shall pay the plaintiff loss of mense profit in a sum of $ 4200.

d)	The plaintiff's claim against the first defendant for general damages and arrears of city rates is declined. 

e)	The first defendant shall pay the plaintiff costs summarily assessed in a sum of $ 2000.

A.L.B.Brito-Mutunayagam
Judge

18 January, 2013