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Gupt v Baleitavua [2018] FJHC 1030; HBC2.2018 (24 October 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION


Civil Action No. HBC 2 of 2018


IN THE MATTER of an application by the Plaintiff under section 169 of the Land Transfer Act.


BETWEEN : JAY KUMAR GUPT aka JAY KUMAR of Sekoula Road, Laucala Beach Estate, Suva, Company Director.

PLAINTIFF


AND : SEVANAIA BALEITAVUA or any other person being in unlawful and illegal occupation of Native Lease No. 31557, Lot 3 Navotua Subdivision, Vunivau, Bua, Farmer.

DEFENDANT


Appearances : Mr. Chand, A for the Plaintiff

: Mr. Bale, A for the Defendant


JUDGMENT


  1. This is the Plaintiff’s originating summons filed pursuant to section 169 of the Land Transfer Act, seeking an order for immediate vacant possession of all that piece of land contained and described in iTaukei Lease No. 31557 being Navotua Subdivision showing Lot 3 on Plan No. B 220, in the Province of Bua and in the Tikina of Bua, comprising an area of 24a.1roop; and for the Defendant to pay the Plaintiff’s costs on an indemnity basis.

The law

  1. Section 169 of the Act allows the following persons to 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:
  2. In summary proceedings under section 169, the Plaintiff must first show locus by proving he belongs to at least one of the categories of persons named in section 169 (1) above.
  3. Only after this is established is the Defendant required, under section 172 of the Act, to prove to the satisfaction of the Court that he has a right to possession. In Muthusami v Nausori Town Council F.C.A. 23/86 the Court of Appeal stated that this must be done by way of affidavit evidence. The Defendant need not prove conclusively a right to possession, it being sufficient that he shows some tangible evidence establishing the existence of a right. (Morris Hedstrom Ltd v Liaquat AliAction No. 153 of 1987)

Analysis

  1. The issue for the Court’s determination is whether an order for vacant possession should be granted in the Plaintiff’s favour.
  2. In bringing this application, the Plaintiff relies on his title which is Annexure A of his affidavit in support. iTaukei Lease No. 31557 is an agricultural lease and the last registered proprietor thereof is Jay Kumar whose title was registered on 25 June 2015 at 12.28pm.
  3. According to the Plaintiff, the Defendant who is in occupation of his property does not have his consent or permission to do so. Instead, the Defendant has unlawfully entered onto his property and taken possession of it, unlawfully claiming ownership.
  4. For the Defendant, it is submitted that the Plaintiff is not the last registered proprietor of the property. Mr. Bale says the Plaintiff’s name in this case is Jay Kumar Gupt, also known as Jay Kumar. The last registered proprietor of the property is one Jay Kumar, not Jay Kumar Gupt. Reference is also made to the transfer document as well as the application for consent to assign the lease, where the name that appears on both documents is that of Jay Kumar, not Jay Kumar Gupt. For this reason, the Defendant says that the Plaintiff is not the last registered proprietor.
  5. It is well known that the acronym a.k.a stands for “also known as”, used to “introduce pseudonyms, aliases, nicknames, working names, legalized names, pen names, maiden names, titles, etc.” In this case, the PlaintifJay Kumar Gupt, aka Jay Kumar. As I see it, it makes no difference whether it is Jay KumarKumar, aka Jay Kumar Gupt, or the other way around. It simply means that the Plaintiff is known by another name. The Defendant does not say that the Plaintiff is not the person he says he is, the objection being merely technical in respect of the order of the names as they appear in this action, and in respect of the name Jay Kumar on the consent, transfer and certificate of title instruments. For my part, I do not consider the objection affects the title of the Plaintiff at all, and is accordingly dismissed. A fortiori where the Defendant says that he is the plaintiff in another action involving the same piece of land in proceedings pending in the Suva High Court, where he names the 5th Defendant there (the Plaintiff in this action), as Jay Kumar Gupt aka Jay Kumar.

Civil Action No. 11 of 2017 – Jay Kumar Gupt v Sevanaia Baleitavua, Epineri Ravatu & Isoa Balemaisuva


  1. The Defendant deposes that an earlier action instituted by the Plaintiff in this action against the Defendant in HBC 11 of 2017 was withdrawn on the application of the Plaintiff’s solicitors at the time. I do not consider that the withdrawal of that action bars the Plaintiff from bringing these proceedings again against the Defendant, for discontinuance of an action or withdrawal of a claim does not bar the bringing of a subsequent action for the same cause of action. (The Kronprinz [1887] UKLawRpAC 7; (1887) 12 App.Cas. 256 at 161)Indeed, The Supreme Court Practice 1999 Vol 1 at 21/5/12 states:

The plaintiff may therefore commence a new action for the same cause, to which such discontinuance will be no defence; but unless he does so in good time, his laches may be a bar (Reid v London & N. Staffs. Insce. Co. (1883) 49 L.T. 468).


Notice to quit

  1. Next, the Defendant denies being served with the Notice to Vacate and Quit, a copy of which is annexed to the Plaintiff’s affidavit in support.
  2. A notice to quit is required to terminate a tenancy. The time required for the service of such notice is set out in Section 89 (2) of the Property Law Act which provides:

(2) In the absence of express agreement between the parties, a tenancy of no fixed duration in respect of which the rent is payable weekly, monthly, yearly or for any other recurring period may be terminated by either party giving to the other written notice as follows:-


(a) where the rent is payable yearly or for any recurring period exceeding one year, at least six months' notice expiring at the end of any year of the tenancy; or

(b) where the rent is payable for any recurring period of less than one year, notice for at least a period equal to one rent period under the tenancy and expiring at any time, whether at the end of a rent period or not.


  1. To terminate a tenancy therefore (other than a fixed tenancy), it is essential that a notice to quit be served. In Kumar v Pillay [2014] FJHC 61; HBA04.2013 (14 February 2014) per Wati J at 45, an appeal from the Master’s decision, Wati J found that the Respondent had not proved service of the notice. Her Ladyship stated:

A notice to quit is necessary under section 89 (2) (b) of the Property Law Act to terminate a tenancy. I cannot find any evidence of service and thus I find that the notice to vacate was not served and that the tenancy was never terminated. If the tenancy was not terminated, the appellant has shown sufficient right to stay on the property as a tenant.


  1. In this case, there is no evidence of a tenancy between the parties at any time such as to require severance by way of service of a notice to quit, and I am therefore of the opinion that any failure to serve a notice on the Defendant, is of no moment to this application.

Discovery

  1. Though the Defendant says that the Plaintiff has brought this application using “a document” that the Plaintiff had received from the Defendant during discovery in pending proceedings in the Suva High Court, it does not say which document is being referred to. The reference to Annexures SB2 and SB3is of little help, since a number of documents were, according to SB3, discovered.

Fraud

  1. Next, the Defendant says that on or about 1st July 2001, one Nand Lal entered into an Instrument of Tenancy in writing for a term of 30 years from 1st July 2001 over 6.7400 hectares of iTaukei land as Navotua Lot 4 in the District of Bua at an annual rent of $500 payable half yearly in advance, in the months of January and June every year, for agricultural purposes. He says that Nand Lal failed to pay rent to iTLTB as and when required, such that iTLTB issued against him a notice to quit dated 1st July 2010. The notice provided that nonpayment of rental arrears would result in the iTLTB terminating the lease and requiring the said Nand Lal to deliver vacant possession of the land.
  2. As a result of Nand Lal’s noncompliance with the notice to quit, the iTLTB obtained default judgment in the sum of $3,133.26 inclusive of costs, and vacant possession in Magistrate’s Court Action No. 177 of 2012. This default judgment order was advertised by the iTLTB on 27 September 2014.
  3. Prior to the judgment, Nand Lal vacated the land and sublet it sometime in 2008. This caused the Defendant to make a complaint to the iTLTB and one Mr. Nadidi Taganiselala to take possession of the said land and apply for a new lease over it. The Defendant says that thereafter, he has been in possession and occupation of the said land on the approval of a Mr. Viliame Kuilamu, Mr. Josaia Waqairatu, and Mr. Nadidi Taganiselala who are employees of the iTLTB. He says that he and members of his mataqali had also applied for a lease over the said land. It is to be noted that none of these allegations is supported by evidence.
  4. The Defendant says that he was in possession and occupation of the said property before Mr. Jay Kumar became a lessee thereof as a result of a “malicious conspiracy” between Nand Lal, the Plaintiff, and two iTLTB employees acting on behalf of iTLTB.
  5. He says that notwithstanding the breaches of the tenancy by Nand Lal and the Court’s Order for monetary judgment and vacant possession, the iTLTB granted a new lease to Nand Lal, being NL 31557 over principally the same area, with iTLTB reference number 4/02/1652 dated 14 July 2014 and registered on or about 30 July 2014.
  6. The said lease was transferred to Jay Kumar with the consent of the iTLTB granted by Mr. Nadidi Taganiselala. The Defendant says that as a further act of conspiracy, Jay Kumar Gupt had already been making payment for the said lease from March 2012, prior to the transfer of the said lease to Jay Kumar.
  7. The Defendant also deposes that in the Suva High Court matter:
    1. Viliame Kuilamu and Nadidi Taganiselala gave the Plaintiff possession and occupation of the said land;
    2. Viliame Kuilamu, Nadidi Taganiselala and the iTLTB gave a new lease to Nand Lal notwithstanding the Order of 25 September 2013;
    3. Nadidi Taganiselala gave the consent of the iTLTB to Nand Lal to transfer the subject land to Jay Kumar Gupt aka Jay Kumar;
    4. Viliame Kuilamu and Nadidi Taganiselala advised him, Sevanaia Baleitavua, to continue with occupation and possession of the subject land whilst allowing a transfer from Nand Lal to Jay Kumar Gupt aka Jay Kumar;
    5. Nand Lal and Jay Kumar Gupt carried out a transfer of the land knowing of the Plaintiff’s occupation, possession and application for lease over the land;
    6. Nand Lal carried out the transfer to Jay Kumar Gupt aka Jay Kumar to defeat the claim of the iTLTB for the Judgment sum and vacant possession against Nand Lal;
    7. Jay Kumar Gupt aka Jay Kumar received the transfer of the subject land from Nand Lal knowing the defect in the lease title;
    8. Jay Kumar Gupt aka Jay Kumar paid Nand Lal’s lease payments to iTLTB prior to acquiring NL 31557.
  8. It is settled law that a person who alleges fraud must prove actual fraud. Thus inAssets Company Limited v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at 210, the Privy Council stated:

Further, 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.


  1. Pathik J in Tradewinds Marine Ltd v Fa Civil Action No. HBC 389 of 1993 (Decision of 15 July 1994), canvassed fraud in some detail and I quote substantially from the Court’s decision there as follows:

In BUTLER v FAIRCLOUGH;#160; [1917] HCA 9; (193 CLR 78 at 97, ISAACS #160;said whad whad what was contemplated by "fraud" 160;"actual fraud, moralmoral turpitude" and GRIFFITH > (ibid at 90) said that it i it imported "personal dishonesty or moral tude"WICKS v BENNET ] HCAa>; [1921] HCA 57; (1921) 30 CLR 80 at 91, KNOX C J #160;RICH J said tha0;"fraud"&#1i> as that tes used in s43 (eq3 (equivalent to s.40 of the Act) meant "somg more mere gard ghtd ghts which the person sought to be affe affected cted had notice".


Furthermohermore, on what constitutes and establishes fr quote from INTRODUCTION TO LAW& by PEby PETER BUTT a98 as t as they have a direct bearing on the facts and circumstances of this case. It is stated there as follows:-


"In Stuart v. Kingston [1923] HCA 17; 1923).L.R. 309, Starke J. said:


"Fri>"Fraud will no longer be imputed to a proprietor registered under the Act unless some consciously dishonest act can be brought home to him. The imputation of fraud based upon the refinements of the doctrine of notice has gone."


And the Privy Council, in a later case expressed the view:


"If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear ... The act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest"(Waimiha Sawmilling Co. Ltd. v. Waione Timber Co. Ltd. [1926] A.C. 101, at 106-107).


In line with these dicta, it has been held that it is not fraud to purchase with notice of an unregistered lease, become registered as proprietor and then evict the lessee relying on the indefeasible title conferred by registration (Oretel v. Hordern (1901) 2 S.R. (N.S.W.) (Eq.) 37; Wicks v. Bennett (1021) [1921] HCA 57; 30 C.L.R. 80, at 91, 94-95; R. M. Hosking Pries Pty. Ltd. v. Barnes [19s [1971] S.A.S.R. 100, at 103; Achatz v. De Reuver [1971] S.A.S.R. 240, at 250); it is always open to the holder of an unregistered interest to protect his interest by caveat, and "a purchaser mut his eyes eyes to the fact of there being an unregistered interest, and need not take any consideration of the persons who claim under the unregistered intereb> (Munro v. Stuart [1924] NSWStRp 54; (1924) 41 S.R. (N.S.W.) 203, at 20at 206. In the words of Kitto J., "mere take a transfer wier with notice or even actual knowledge that its registration will defeat an existing unregistered interest is not fraud" (Mills v. an&#1i>[1967] HCA 15; [1967] HCA 15; (1967) 116 C.L.R. 61, at 78). Nor is it fraud to register promptly with the purpose of defeating a claim over the land which may be established by pending litigation: that is not cheating a person of a known existing right (Waimiha Sawmilling Co. Ltd. v. Waione Timber Co. Ltd. [1926] A.C. 101). On the other side of the line, a registered title is defeasible for fraud where the purchaser takes not merely with notice of the unregistered interest but having given an assurance that the interest will be preserved (Loke Yew v. Port Swettenham Rubber Co. Ltd. [1913] UKLawRpAC 11; [1913] A.C. 491, at 501-502)."


  1. While it is settled that complicated questions of fact, especially those involving allegations of fraud, are not capable of being adequately investigated and dealt with in summary proceedings (Lal v Schultz 18 FLR 152 at 154 per Gould V.P.), it is equally established that a bare allegation of fraud would not, by itself, constitute a complicated question of fact. (See Singh v Singh [1987] 33 FLR 63 (25 September 1987)
  2. On the material before me, I am not satisfied that the Defendant has shown fraud such as to render an application under section 169 of the Land Transfer Act inappropriate. The instances of fraud alleged relate, for the most part, to the actions of Nand Lal and the officers of the iTLTB. I bear in mind that the fraud alleged “must be brought home to [the Plaintiff] whose registered title is impeached or to his agents.” (Assets, supra) Here, apart from the payment of rental, premium and interest on 7 March 2012, and rental on 27 December 2013 for Nand Lal; and the allegation that the Plaintiff had received the transfer of the subject land from Nand Lal knowing of the defect in the lease title; there is nothing else to bring home the fraud to the Plaintiff. Payment of rental for Nand Lal, is not, in and of itself, without more, fraudulent. Further, there is no evidence that the Plaintiff had had knowledge of any defect in the lease title prior to the transfer of the lease to him, or of “personal dishonesty or moral turpitude” on his part.

Indefeasibility of title

  1. Pursuant to sections 39 – 42 of the Land Transfer Act, and under the Torrens system of land registration which operates in Fiji, the title of the registered proprietor is indefeasible and unimpeachable, unless actual fraud is proved. (See Subramani v Sheela [1982] FJCA 11; [1982] 28 FLR 82 (2 April 1982); Assets Company Ltd v Mere Roihi[1905] UKLawRpAC 11; [1905] AC 176 at p.210; Fels v. Knowles 26 N.Z.L.R. 608, at page 620)
  2. In Subramani(supra) the Fiji Court of Appeal (per Gould V.P., Marsack, J.A., and Spring J.A.) stated:

The indefeasibility of title under the Land Transfer Act is well recognised; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Land Transfer Act which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v. Knowles 26 N.Z.L.R. 608. At page 620 it is said:


“The cardinal principle of the statute is that the register is everything, and that, except in case 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.”


  1. Section 40 of the Land Transfer Act reads:

Purchaser not affected by notice


Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, onto see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.


  1. Of the effect of section 40 above, the Court in Tradewinds (supra) stated:

It is pertinent to note that under s.40 notice of a trust or unregistered interest in existence does not of itself constitute fraud upon the party obtaining registration. In the case before me the Plaintiffs deny that they had any knowledge of any unregistered interest of the defendant or of any trust except that they knew that he was in occupation of the property as a tenant of the previous registered proprietors. The fact that the Plaintiffs have an "indefeasible title"#160 to the property means that the title cannot be set aside because of some defect in the history of the title.

  1. In light ight of the authorities above, and given wven what I consider to be a dearth of evidence of fraudulent conduct on the part of the Plaintiff, and the absence of any relevant complicated questions of fact as far as the Plaintiff is concerned, I come to the conclusion that this is a proper case to be dealt with under section 169 of the Land Transfer Act. As I see it, the Defendant has failed to show cause why the order the Plaintiff seeks should not be made. Nor has he shown, to the satisfaction of the Court, the existence of a right to occupation of the property.
  2. Accordingly, there will be an order for vacant possession against the Defendant.

Costs

  1. The Plaintiff seeks costs on an indemnity basis but has not supported this in its application or submissions. For the Court, there is nothing before it justifying such an order.
  2. The orders of the Court therefore will be:
    1. The Defendant to deliver to the Plaintiff within one month of this Judgment, immediate vacant possession of the property contained in and described as iTaukei Lease No. 31557 being Navotua Subdivision showing Lot 3 on Plan No. B. 220 in the Tikina of Bua, Province of Bua, with an area of 24a.1r.00p.
    2. Costs for the Plaintiff, summarily assessed in the sum of $800, to be paid within 28 days of this Judgment.

Dated at Labasa this 24th day of October 2018.


Siainiu F. Bull
Master

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