IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action HBC 48 of 2014

BETWEEN:

RAJESH PRASAD and USHA PRASAD
PLAINTIFFS

AND:

MUNESH PRASAD
DEFENDANT

BEFORE: Hon. Justice Kamal Kumar

COUNSEL: Mr. A. Senfor the Plaintiffs
 Mr. N. Vere for the Defendant

DATE OF HEARING: 15 April, 2014
DATE OF JUDGMENT: 2 December, 2015

JUDGMENT
(APPLICATION FOR VACATION POSSESSION)

1.0 Introduction

1.1	On 11 August 2014 Plaintiffs caused to file Summons seeking that:-

"Defendant do show cause why he should not give immediate vacant possession to the plaintiff of the plaintiffs land and premises which is occupied by the defendant situated on Certificate of Title No. 21229 known as "Nacekoro" Lot 1 on Plan No. 5321 containing one hectare, eight thousand nine hundred and seventy-six square metres situated in the District of Savusavu in the Island of Vanualevu AND the costs of this application be paid by the defendant to the plaintiffs."

1.2 The Summons was set down for hearing on 15 October 2014 when following directions were given:-

(i)	Defendant to file and serve Supplementary Affidavit by 21 October 2014.

(ii)	Plaintiffs are at liberty to file and serve Affidavit in Reply by 29 October 2014.

(iii)	Both parties to file submissions on preliminary issue of service of Summon and substantive matter by 7 November 2014.

(iv)	Any Reply to either parties' Submissions to be filed and served by 14 November 2014.

(v)	Thereafter Ruling on notice.

1.3 Following Affidavits were filed on behalf of the parties.

For Plaintiffs

(i)	Affidavit in Support of Plaintiffs sworn on 7 August 2014 and filed on 11 August 2014(Plaintiffs 1st Affidavit).

(ii)	Affidavit in Reply of Plaintiffs by Firstnamed Plaintiff sworn on 10 September 2014 and filed on 16 September 2014 (Plaintiffs 2nd Affidavit)

(iii)	Affidavit in Reply of Plaintiffs by Firstnamed Plaintiff sworn and filed on 13 October 2014 (Plaintiffs' 3rd Affidavit).

For Defendant 

(i)	Affidavit of Defendant sworn and filed on 4 September 2014 ("Defendant's 1st Affidavit")

(ii)	Supplementary Affidavit of Defendant sworn and filed on 9 October 2014 ("Defendant's 2nd Affidavit").

(iii)	Second Supplementary Affidavit of Defendant sworn on 20 October 2014, and filed on 21 October 2014 ("Defendant's 3rd Affidavit").

1.4 Summons was heard on 15 October 2014 after which both parties were directed to file Affidavits and Submissions as stated at paragraph 1.2 hereof.

2.0 Preliminary Issue on Order 41 Rule 9 (2) –High Court Rules

2.1 It is noted that whilst all the Affidavit filed by Plaintiffs comply with Order 41 Rule 9 (2) none of the Affidavit filed by Defendant has indorsement as required by Order 41 Rule 9 (2) of the High Court Rules.

2.2 Current Chief Justice, His Lordship Justice Gates and other Judges of this Court including myself have highlighted time and again the failure by parties in particular their Solicitors to comply with order 41 Rule 9(2) of the High Court Rules 1988.

2.3 Order 41 Rule 9(2) provides as follows:

 "Every Affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing and an Affidavit which is not so indorsed may not be filed or used without the leave of the Court."

2.4 In the matter of Kim Industries Ltd. (Unreported) Lautoka High Court Winding – Up Action No.HBF0036 of 1999L, his Lordship Justice Gates (as then he was), the Current Chief Justice stated as follows:

 "If any Affidavit bears an irregularity in its form such as the Omission of the indorsement note, leave must be obtained from the Court for it to be filed or used..." (page 3)

2.5 Similar comments were made by his Lordship in State v H.E. The President &Ors. (unreported) Lautoka High Court Judicial Review No. HBJ007 / 2000L 12 October 2000. Chandrika Prasad v Republic of Fiji(unreported) Lautoka High Court Action No. HBC0217 / 2000L [Ruling on Stay Application – 20 December 2000, Ruling on Joinder Application – 17 January 2001].

2.6 In Jokapeci Koroi & Ors. v Commissioner of Inland Revenue & Anor. (unreported) Lautoka High Court Action No. HBC179/2001L (24 August 2001) his Lordship Justice Gates (as then he was) and Current Chief Justice removed two (2) Affidavits filed on behalf of the Defendants from the Court file for failure to comply with the Order 41 Rule 9 (2) and ordered the Defendants file the said Affidavit with indorsement in compliance with Order 41 Rule 9(2) within 14 days. His Lordship at page 4 of the Judgement stated as follows:

 "These mistakes are of little consequence to the actual litigation but since the setting of the format of an Affidavit, vehicle for the presentation of sufficient evidence to the Court, is a relatively simple exercise, these errors should no longer persist."

2.7 I commend the Solicitors for the Plaintiffs for complying with Order 41 Rule 9(2) of High Court Rules.

2.8 None of the Affidavits filed on behalf of the Defendant complies with Order 41 Rule 9(2) of the High Court Rules in any respect.

2.9 Also no leave has been sought by Counsel for the Defendant to use the Affidavits in this proceeding.

2.10 In view of the nature of the proceedings, leave is granted for Defendant to rely on the Affidavits filed. However the litigants and their counsel should take note of thefact that failure to comply with Order 41 Rule 9(2) and failure to obtain Court's leave to utilise these Affidavits could result in the Affidavits being removed from the court file which of course will be fatal to their client's case. 

3.0 Application for Vacant Possession

3.1 The Summons for Vacant Possession was issued on 11 August 2014 with returnable date of 28 August 2014.

3.2 Summons was served on the Defendant on 12 August 2014 as appears from Affidavit of Steven Sharma sworn on 14 August 2014 and filed on 9 September 2014.

3.3 Sections 169 and 170 and 172 Land Transfer Act Cap 131("LTA") provides as follows:

169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

170. The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons.

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:

 Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

3.4 The Plaintiff has complied with the requirement of section 170 of LTA which then leaves the Defendant to show cause as to why he should not deliver vacant possession of the subject property.

3.5 In Morris Hedstrom v Liaquat Ali Civil Action No. 153 of 1987 (3rd April 1987) his Lordship Justice Sheehan M. J (as he then was) in dealing with s.169 application stated as follows:- 

 "Under Section 172 the person summoned may show cause why he refused to give possession of the land 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."

3.6 The above principle have been adopted and applied in this Court and Fiji Court of Appeal. In Prasad v Hamid [2004] FJCA 10; ABU0059.2003 (19 March 2004) the Full Court of Appeal in respect to section 172 of Land Transfer Act stated as follows:-

"As has been remarked in other cases, provisions of this kind are common in many common law countries. There is a substantial amount of authority dealing with them and with the principles which apply when the procedure of summary judgment is invoked. The all important question always is whether the Defendant can prove to the satisfaction of the judge a right to the possession of them land. These words have been the subject of some judicial gloss both in Fiji and elsewhere. For present purpose it is sufficient to refer to a decision relied upon by the primary judge in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87) where the Supreme Court said (at p.2) that under s. 172 the person summoned may show cause why he refuses to give up 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 Court added that that was not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What was required was that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced. What we have called the gloss on the section derives from the summary nature of the proceedings instituted under s. 169. Courts are always reluctant to give summary judgment in cases where a Defendant shows that he has some reasonably arguable defence or case which requires to be heard at a proper trial of the proceedings."

3.7 The principal inMorris Hedstrom case has been applied by Court in Fiji.

3.8 It appears that his Lordship Justice Sheehan (as he then was) failed to take into consideration the fact that section 172 requires Defendant "to prove to the satisfaction of the judge a right to possession of the land."

3.9 There is no provision in the Land Transfer Act which state that if Defendant can show "arguable defence" then the summons will be dismissed.

3.10 Therefore and with all due respect Defendant has to show cause why he should not deliver vacant possession by proving to Court that he/she has right to possession of the subject land and nothing else.

3.11 The Defendant in his 1st Affidavit except for stating that he had filed Civil Action No. 42 of 2012, does not say anything else in support of his case.

3.12 In Defendant's 2nd Affidavit he:

 (i) Admits that Plaintiffs are registered proprietors but says that Transfer of subject property was fraudulently made.

 (ii) Civil Action No. 59of 2014 replaces Civil Action No. 42 of 2012;

 (iii) He attempted to amend Writ of Summon in Civil Action No. 59 of 2014.

3.13 In Defendant's 3rd Affidavit he states that:

 (i) The subject property was owned by his father Kamla Prasad and he and his family have been residing on the subject property;

 (ii) When the subject property was advertised by NBF Asset Management Bank ("the Mortgagee") for Mortgagee Sale he tendered for the subject property;

 (iii) His tender was accepted by the Mortgagee;

 (iv) Sometime in 2011 Mortgagee's Solicitors sent Transfer and Sale and Purchase Agreement for his signature to the Agreement;

 (v) He signed the Sale and Purchase Agreement and sent it to Mortgagee's Solicitors;

 (vi) He through his Solicitor wrote to Mortgagee demanding that Mortgagee sign the Agreement;

 (vii) On 2 August 2012 and 20 August 2012 Mortgagee's Solicitor wrote to his Solicitor informing them that sale to him has been withdrawn because of Bankruptcy Order against him;

 (viii) Even though above letter stated Bankruptcy order is as attached, no such order was attached;

 (ix) Both letters were copied to Mr Amrit Sen and Mr Amrit Sen wrote a letter to District Office in Savusavu advising that a Bankruptcy Order was made against him;

 (x) On 3 October 2013 he lodged Caveat against the Title to the subject property.

 (xi) He instituted legal proceedings against the Mortgagee in this Court being Civil Action No. 42 of 2012 and later joined Plaintiffs, Registrar of Titles and Attorney General of Fiji;

 (xii) Caveat was removed wrongfully by Registrar of Titles;

 (xiii) Mortgagee re-advertised sale of subject property and one Prem Chand's tender was accepted but the subject property was transferred to the Plaintiffs;

 (xiv) Registrar of Titles by letter dated 2 May 2014 acknowledged that notice for removal of caveat was wrongly issued under section 110 of LTA instead of section 116 and stated that her office will not process the application for removal of caveat until correct notice is issued to the caveator;

 (xv) Despite the assurance given in the aforesaid letter caveat was removed;

 (xvi) On 17 June 2014 he and other occupants on the subject property received notice to vacate the subject property.

3.14 Defendant has relied on Civil Action Nos. 42 of 2012 and now 59 of 2014 and wrongful removal of caveat to show cause that he has right to possession of the subject property.

3.15 It is undisputed that the Plaintiffs are the registered proprietors of the subject land.

3.16 Section 39 (1) of Land Transfer Act provides as follows:

"S 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 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.

3.17 The definition of fraud for the purpose of Land Transfer Act was stated by Privy Council in Assets Company Limited v Mere Rohini [1905] AC 176 at 210 as follows:

 "Passing now to the question of fraud, their Lordships are unable to agree with the Court of Appeal. Sects. 46. 119. 129. And 130 of the Land Transfer Act, 1870, and the corresponding sections of the Act of 1885 (namely, as 55, 56, 189 and 190) appear to their Lordships to shrew that by fraud in these accounts 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."

3.18 In Fels v Knowles (1907) 26 NZLR 608 the Court of Appeal dealing with similar provisions and proceedings for setting aside of transfer stated as follows:

 "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. Nothing can be registered the registration of which is not expressly authorized by the statute. Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest, or in the cases in which registration of aright is authorized, as in the cases of easements or incorporeal rights, to the right registered". See Subarmani v Dharam Sheila (1982) 28 FLR 82.

3.19 In Wicks v Bennet (1921 – 22) 30 CLR 80 their Honors Chief Justice Knox and Justice Rick at page 91 stated as follows:

 "Fraud in these sections mean something more than mere disregard of rights of which the person sought to be affected had notice. It imports something in the nature of personal dishonesty or moral turpitude (Butler v Fairclough)."

3.20 The Plaintiffs acquired the subject property from the Mortgagee for valuable consideration.

3.21 In order for Defendant to impeach the title of the Plaintiffs to the subject property he must establish actual fraud on the part of the Plaintiffs in acquiring the property.

3.22 At paragraph 8 of Defendant's 2ndAffidavit he states as follows:-

 "That I have sworn an affidavit in support of the Summons marked "M3" and my affidavit contains all the relevant facts to prove the actual fraud that the Plaintiffs in this action had committed to enable the land in issue to be transferred to them. A copy of my sworn affidavit is exhibit hereto marked "M4".

3.23 Apart from the above paragraph no other allegations of fraud is made against the Plaintiffs.

3.24 Also no evidence has been produced to Court to show that Plaintiffs have committed any fraud when they became registered proprietors.

3.25 I think it is appropriate that I look at Civil Action Nos. 42 of 2012 and 59of 2014 and Miscellaneous Action Nos. 1 of 2012, 2 of 2012 and 1 of 2015 filed by the Defendant.

 1. Miscellaneous Action No. HBM 1 of 2012

 (i) On 9 May 2012 Defendant commenced action by filing Notice of Motion seeking leave to file Writ of Summons against the Mortgagee.

 (ii) On 22 February 2013 the Learned Master struck out this action on ground that the procedure adopted by the Defendant was wrong.

 2. Miscellaneous Action No. 2 of 2012

 (i) On 8 April 2013 Defendant filed Application for Leave to issue proceedings against NBF Asset Management Bank, the Mortgagee.

 (ii) On 6 May 2014 the Learned Master granted leave for Defendant to file proceedings against Mortgagee and was granted twenty one (21) days to file claim.

 (iii) After several adjournments this action was struck out by the Learned Masteron 7 August 2015 for failure by Defendant (Plaintiff in Miscellaneous Action No. 2 of 2012) to comply with earlier order/direction.

 3. Civil Action No. 42 of 2012

 (i) On 28 August 2012 Defendant filed this action against the Mortgagee for breach of contract and negligence.

 (ii) On 25 September 2012 her Ladyship Madam Justice Wati ordered consolidation of this action with Miscellaneous Action No. 1 of 2012 and that if leave was granted in Miscellaneous Action 1 of 2012 then Defendant (Plaintiff in Action No. 42 of 2012) could proceed otherwise writ would have no effect.

 (iii) On1stAugust 2013 Defendant filed Application for Interim Injunction against the Mortgagee to restrain it from exercising its power of sale.

 (iv) On 6 May 2014 Learned Master struck out this action on the ground that ruling in Miscellaneous Action No. 1 of 2012 will determine this matter.

 (v) On 18 August 2014 Defendant filed Amended Writ of Summons whereby he joined Plaintiffs, Registrar of Titles and Attorney General of Fiji as 2nd, 3rd and 4thDefendants respectively and also amended his Statement of Claim.

 (vi) On 2 September 2014 Mortgagee as Defendant applied to strike out the action on the ground of abuse of process and that the action against the Mortgagee to be declared as having no effect in accordance with Order made on 25 September 2012.

 (vii) On 4 September 2014 the Learned Master once again struck out this matter on the ground that Miscellaneous Action No. 1 of 2012 was struck out.

 4. Civil Action No. 59 of 2014

 (i) On 15 September 2014 Defendant instituted this action against the Mortgagee for breach of contract and negligence.

 (ii) On 13 October 2014 Defendant filed Application to add Plaintiffs, Registrar of Titles and Attorney General of Fiji as Second, Third and Fourth Defendants respectively and amend Statement of Claim

 (iii) The Application to add additional Defendants and amend Claim was heard on 9 June 2015 and on 7 August 2015 ruling was delivered whereby the application was struck out for reasons stated in the ruling.

(iv)	Summons for Direction is listed to be called on 7 December 2015.

 5. Miscellaneous Action No. HBM 1 of 2015

 (i) In this action Defendant filed Inter-Parte Notice of Motion seeking following declarations and orders against the Plaintiff and Fourth and Fifth Defendants and the Mortgagee, Registrar of titles and Attorney General of Fiji as First, Second and third 

 "1. A DECLARATION: That the 2ndDefendant had mistaken/unlawfully removed Caveat No. 786618 filed by the Applicant/Plaintiff against any dealings with the land described in Certificate of Title Number CT21229.

 2. A DECLARATION: That the 2nd Defendant had mistakenly/unlawfully registered the transfer and mortgage of the land described in Certificate of Title No. 21229 to the 4th and 5th Defendants vide dealings No 798600 and 798601.
 
 3. AN ORDER: That the 2nd Defendant to Re-register in Certificate of Title No. 21229 Caveat No. 786618 she mistaken/y/unlawfully removed until the finalisation of Labasa High Court Civil Action No. 59 of 2014.
 
 4. AN ORDER: That the 2nd Defendant to cancel the transfer and mortgage of land described in Certificate of Title No. 21229 vide dealings No. 798600 and 7976-1 and to stop any further dealings related to the said land until the finalisation of the Labasa High Court Civil Action No. 59 of 2014.

 5. AN ORDER: That the 4th and 5th Defendants do not do any excavating or anything else with the land described in Certificate of Title No. 21229 or interfere with the Plaintiff or any other person currently residing on the land in issue in any manner whatsoever until the finalisation of Labasa High Court Civil Action No. 59 of 2014."
 
 (ii) The Inter-Parte Motion is listed to be called on 7 December 2015 to fix hearing date.

3.26 In the Affidavit filed in Miscellaneous Action No. 1 of 2015 there is no allegation of fraud against the Plaintiffs. 

3.27 I note that the Miscellaneous Action No. HBM 1 of 2015 is commenced by Inter- Parte Notice of Motion which is procedurally wrong. However since the matter is listed to be called before the Master of the Court I will leave this to the Learned Master to deal with.

3.28 With Miscellaneous Action Nos. 1 of 2012, 2 of 2012 and Civil Action No. 42 of 2012 being struck out the only other actions pending are Civil Action Nos. 59 of 2014 and Miscellaneous Action No. 1 of 2015.

3.29 Civil Action No. 59 of 2014 is against the Mortgagee only.

3.30 As stated earlier Plaintiffs being registered proprietors have indefeasible title to the subject property.

3.31 Plaintiffs title to the subject property can only be defeated on ground of actual fraud on their part when the subject property was transferred to them.

3.32 Again as stated earlier there is no evidence produced to Court which show any form of fraudulent conduct on part of the Plaintiffs when the subject property was transferred to them.

3.33 I accept Plaintiffs Counsels' submission that mere institution of proceedings in respect to the subject property does not of itself restrain the registered proprietor to institute eviction proceeding and obtain order for vacant possession. Bahskar v Khan[2002] FJHC 260; HBC 0043-45j of 2002 (27 August 2003)

3.24 Even though Civil Action No. 42 of 2012 has been struck out I notice that the cause of action against the Plaintiffs (2nd Defendants in Civil Action No. 42 of 2012) was based on negligence.

3.35 I fail to understand how can Plaintiffs be responsible for the following:-

 (i) Mortgagee refusing to Transfer subject property to the Defendant;

 (ii) Registrar of Titles removing the Caveat wrongfully

 (iii) Mr Amrit Sen allegedly writing to mortgagees' solicitor or District Officer about Bankruptcy order against the Defendant;

3.36 After analysing the evidence before this Court, hearing and reading the submission I am satisfied that Defendant has failed to show cause as to why he should not give vacant possession of the subject property to Plaintiffs and he has failed to prove to this Court's satisfaction that he has a right to possession of the subject property.

3.37 In respect to costs I take into consideration the Affidavits and Submissions filed by the parties and the hearing of the Application.

3.38 I made following orders:

 (i) Defendant do give immediate vacant possession of the property known as Lot 1 on Deposited Plan No. 5321 "Nacekoro" in the district of Savusavu in the Island of Vanua Levu containing an area of one hectare, eight thousand nine hundred and seventy – six square metres comprised and described in Certificate Title No.21229 and situated at Buca, Nacekoro Road, Savusavu to the Plaintiffs.

 (ii) Execution of this Order be stayed until 31 December 2015.

 (iii) Defendant do pay Plaintiffs costs assessed in the sum of $1500.00 within fourteen (14) days of this judgment.

Kamal Kumar
JUDGE