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High Court of Fiji |
IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION
AT LAUTOKA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 232 of 2017
BETWEEN
NALESH NAND of Yalalevu, Ba
APPELLANT
AND
FOUR R ELECTRICAL & GENERAL CONTRACTORS LTD - a limited liability company having its registered office at Yalalevu, Ba.
RESPONDENT
Appearance : The appellant in person
Mr. Shailend Krishna for the respondent
Hearing : Monday, 5th October 2020 at 9.00 am.
Judgment : Friday, 05th February 2021 at 9.00 am.
J UD G M E N T
(A) INTRODUCTION
(01) On 21.06.2019, the learned Master granted an application pursuant to Section 169 of the Land Transfer Act, Cap 131, brought by the respondent. The learned Master made an order for vacant possession.
(02) On 24.06.2019, the appellant lodged an appeal against the decision of the learned Master.
(03) The background to the case is set out in the judgment of the Master.
01. The plaintiff company filed the instant summons supported by an affidavit sworn by its director Rishikendra Kumar pursuant to Section 169 of the Land Transfer Act (Cap 131) against the defendant and all other occupiers of the property comprised in Certificate of Title No. 36513, land known as Valele and Nawaralailai being Lot 1 on DP 8561 in the District of Ba and Island of Viti Levu and sought following orders from the court:
- THAT the Defendant, NALESH NAND and together with all other occupiers of the subject property do give immediate vacant possession of Certificate of Title No. 36513, all the piece of land on Certificate of Title Number 36513, land known as Valele and Nawaralailai being Lot 1 on DP 8561 in the District of Ba and Island of Vitilevu.
- THAT the Defendant do pay costs to the plaintiff for this application to be assessed on a Solicitor/Client basis; and
- THAT such further or other relief as this Honourable Court may deem just and fair.
08) The plaintiff company invoked the jurisdiction of this court under the Section 169 (a) of the Land Transfer Act, being the last registered proprietor of the subject property. The annexure “RK 1” is the true copy of the Certificate of Title certified by the Registrar of Titles. It is evident from the said Instrument of Title and the averments of both affidavits filed on behalf of the plaintiff company that, it became the proprietor of the subject property through Mortgagee’s sale registered on 14.12.2015. However, the defendant in paragraph 4 of his affidavit states that, his late mother Champa Wati is the registered proprietor of the subject property. Interestingly, the defendant relies on the same Instrument of Title marked as “RK 1” and tendered by the plaintiff company for his contention. In fact, the late mother of the defendant was the original proprietor of the subject property. However, the title passed to the plaintiff company under and by virtue of Mortgage’s sale and the plaintiff company is the last proprietor of the subject property at the moment.
(B) Grounds of Appeal
The grounds of appeal upon which the appellant relied on are;
As per Will of Deceased Champa Wati it is clearly stated that “I have secured first charge mortgage to ANZ Bank Ba Brnach in favor of Mr Rishikendra Kumar’s business”.
As per the content of the Judgment page 4 of 11 Paragraph 8 on the hearing day before the Master Judge and in presence of Plaintiffs lawyers in Chambers of Master Judge to clear the doubt I showed to the honourable court that there is no second page to prove that Plaintiff is the owner of the property. And in my affidavit in opposition filed on 24th January, 2018 paragraph 4 read as follows that Late Mrs. Champa (who died on 12th June 2017) is the registered proprietor of all that piece and parcel of land comprised in Certificate of title Number 36513 reference to previous CT 13771 as plaintiff and his lawyer has already annexed RK – 1 a certified copy of the said title consisting of one page that confirms Champa Wati is the owner.
I consider this case is conspiracy case. It’s a predetermined matter and a plot to torture my family since 2016 and my mother late Mrs. Champa Wati who died a slow death due to lack of hope in life.
Exhibited hereto Affidavit In Support of Plaintiff served by Bailiff on Page 3
Therefore as per 2013 Constitution the Supreme Law of Fiji Chapter 2 sub heading Right to life Section – 8. Every person has the right to life, ad a person must not be arbitrarily deprived of life.
“Proprietary estoppel is one of four principal mechanisms to acquire rights over property, seen particularly in the case of land. A legal claim, especially connected to English land law, which may arise in relation to rights to use the property.”
However Proprietary Estoppel was not considered by the Honourable Master Judge.
In the language of business environment, no individual can perform to his or her full capacity unless they are free of all personal inhibitions.
Therefore as per 2013 Constitution the Supreme Law of Fiji CHAPTER 2 under sub heading Heading Freedom from cruel and degrading treatment Section 11 – Paragraph (1) every person has the right to freedom from torture of any kind whether physical, mental or emotional and from cruel, inhumane, degrading or disproportionate severe treatment or punishment.
Exhibited hereto Affidavit in Support filed on 7th November, 2017 on Page 3
However as per 2013 Constitution the Supreme Law of Fiji CHAPTER 2 under heading Freedom from Arbitrary Evictions Section 39 Paragraph (2) No Law may permit arbitrary evictions.
Therefore as per 2013 Constitution the Supreme Law of Fiji CHAPTER 2 under sub heading Application section – 6 paragraph (7) subject to the provisions to this constitution, laws made, and administrative and judicial actions taken, after the commencement of this constitution are subject to the provisions of this chapter.
(C) Consideration and the determination
(01) Ground – 01
That the Master Judge did not consider all the relevant and detailed documents provided in my Affidavit in Opposition filed on 24th January, 2018, some real and demonstrative physical evidences produced by me to the Honourable Court together with my oral submission on hearing day 15th November, 2018 in addition to Defendant Submissions filed on 23rd November, 2018.
(a) The learned Master stated as follows in paragraph (18) and (19) of the judgment;
(18) According to above decisions, the duty of the court is to decide
whether a defendant adduced any real or demonstrative physical evidence establishing a right ororting an arguable case fase for such a right or even he failed to adduce such evidence whether an open court hearing is required or not, given the circumstances of a case. Bearing these princ in mind, I now turn to exao examine the affidavit of the defendant.
(19) As stated above the defendant attached several documents and deposed several facts in his affidavit. The affidavit and the documents therewith span over number of pages. However all of them not only irrelevant to this proceedings, but also insufficient either to establish a right to remain in possession or an arguable case or to influence this court to decide that an open court hearing is required. If I correctly summarize all of his averments what he says is that his late mother Champa Wati is the registered proprietor and he has an interest to stay in the property and to fulfil the unfinished projects of his late parents.
(b) Therefore, it is clear to me that the learned Master had considered all the documents exhibited to the affidavit in opposition filed by the appellant before he made the order for possession. In this case, as stated by the Master, the appellant has failed to prove a right to remain in possession or has failed to show tangible evidence establishing a right or supporting an arguable case for such a right.
(c) The appellant relies primarily on two grounds; (1) His late mother, Champa Wati is
the last registered proprietor of the subject land till today (2) The proprietary estoppel.
(d) The respondent company invoked the jurisdiction of the Court under Section 169 (a) of the Land Transfer Act, being the last registered proprietor of the subject property. It is evident from the instrument of Title (annexure RK – 1), the respondent company became the proprietor of the subject property through mortgagee sale registered on 14.12.2015. The appellant in his grounds of appeal states that his mother, late Champa Wati, is the last registered proprietor of the subject property. It was submitted by the appellant that his mother secured a loan by mortgaging the property to ‘Australia and New Zealand Banking Group Limited’. It was next submitted that the mortgage was not discharged since it was not paid off. The appellant relying on Certificate of Title 36513 submitted that his mother, late Champa Wati is still the last registered proprietor of the subject land. It was next submitted that the appellant has the right to possess or use the property because he is the beneficiary of the estate of late Champa Wati. Both the appellant and the respondent referred to Certificate of Title No. 36513 as evidence of ownership. The Certificate of Title 36513 (respondent’s exhibit RK-1) shows that the mortgage on the subject property has been discharged and the lender, i.e, ‘Australia and New-Zealand Banking Group Ltd’ has been removed from the title. The certificate of title further shows that the property has been re-mortgaged to ‘Westpac Banking Corporation’ by Champa Wati and since the mortgagor began defaulting under the terms of her mortgage, the ‘Westpac Banking Corporation’ pursuant to its powers under the mortgage instrument, had advertised the property for sale and on 14-12-2005 the subject property has been transferred to the respondent by mortgagee sale. In my view, the Certificate of Title relied on by the appellant has been obtained before the subject property underwent discharge process and second mortgage. The copy of the Certificate of Title 36513 (appellant’s exhibit -5) submitted by the appellant does not contain all the changes and updates. The certified copy of the Certificate of Title tendered by the respondent is a document that is continually edited and updated. It clearly shows that the last registered proprietor of the subject land is the respondent and he had bought the subject property at mortgagee sale while the mortgagor, i.e, Champa Wati, was alive. The mortgagor has not applied for an injunction restraining the mortgagee’s, i.e, Westpac Banking Corporation’s power of sale. The appellant in this case has not challenged before the Master the validity of the second mortgage or Bank’s power of sale granted pursuant to the mortgage. The appellant has not specifically alleged corruption, collusion or fraud against the purchaser (the respondent) and the mortgagee (the Westpac Banking Corporation). There is no prior mortgage security in the form of an equitable mortgage. Thus, the doctrine of proprietary or equitable estoppel does not apply. Therefore, it is equitable for the “Westpac Banking Corporation” to assert its right of mortgagee sale.
(e) The ground (1) has no merits and is dismissed.
(02) Ground - (2)
(a) 2. That under the Land Transfer Act (Cap 131) the Registered Owner of the said
property on the Original Title C.T. 13771 is Mrs. Champa Wati (deceased 12th June, 2017) as it belonged to her since 27th May, 1974, a certified copy of Original Title from register, which I proved to the honourable Court on the hearing day. As per the original title page request for new CT was cancelled on 30th October, 2006.
(b) I have dealt with the above issue in ground (1).
(03) Ground - (3)
(a) 3. That some real and demonstrative physical evidence was provided to the honourable
Court on Hearing day that Deceased Champa Wati is the registered owner of that piece and parcel of land comprised in certificate title number CT 36513 and drawing showing two other lots CT 36514 and CT 36515 as per annexure marked RK-1 in Affidavit in Support of Plaintiff filed on 7th November, 2017 contains only one front page with the drawing and the land proprietor indicating proofs of the name Champa Wati is the owner of the land and nothing is on that page to confirm that the Plaintiff is the owner of the said land. I have proved that Mrs. Champa Wati Deceased is the registered owner till to date. As you open that RK-1 in Affidavit In Support of Plaintiff the title page with only one front page, on the left hand corner its written Reference to previous Title C.T. 13771. To know the truth open previous Title CT 13771 and it shows the said property under Land Transfer Act (Cap 131) transferred to Mrs. Champa Wati on 27th May, 1974. And the mortgage with ANZ Bank Ba Branch on 27th March, 2002 is not discharged.
As per Will of Deceased Champa Wati it is clearly stated that “I have secured first charge mortgage to ANZ Bank Ba Brnach in favor of Mr Rishikendra Kumar’s business”.
As per the content of the Judgment page 4 of 11 Paragraph 8 on the hearing day before the Master Judge and in presence of Plaintiffs lawyers in Chambers of Master Judge to clear the doubt I showed to the honourable court that there is no second page to prove that Plaintiff is the owner of the property. And in my affidavit in opposition filed on 24th January, 2018 paragraph 4 read as follows that Late Mrs. Champa (who died on 12th June 2017) is the registered proprietor of all that piece and parcel of land comprised in Certificate of title Number 36513 reference to previous CT 13771 as plaintiff and his lawyer has already annexed RK – 1 a certified copy of the said title consisting of one page that confirms Champa Wati is the owner.
I consider this case is conspiracy case. It’s a predetermined matter and a plot to torture my family since 2016 and my mother late Mrs. Champa Wati who died a slow death due to lack of hope in life.
Exhibited hereto Affidavit In Support of Plaintiff served by Bailiff on Page 3
(b) I have dealt with this issue in ground (1).
(04) Ground – (4)
(a) 4. That the Will of Deceased Champa Wati was also produced to the honourable Court
on Hearing as a Physical Evidence subject to the demand made by the Honourable
Master Judge. I did confirmed to the honourable Court that Will of Deceased is in process and progress as the advertisement in regards to the Estate of Deceased Champa Wati was published in the Fiji Sun and the Plaintiff never contested the Will.
(b) This ground deals with the last Will of the appellant’s mother and it is irrelevant to the proceedings under the Land Transfer Act. The ground (4) is dismissed.
(05) Ground – (5)
(a) 5. That more than $10,000 (Ten Thousand Dollars) in EFL Bills consisting of 4 Meter
Bills, Water Bills consisting of two meter Bills and Town Rates registered under Late Mrs Champa Wati are paid by me till to date despite the Plaintiff forcefully using the property since 3rd August, 2016 as no notice was served to any of the individual proprietors and since then I am unemployed, also I have three kids who are schooling, with eldest in Year 13, second in Year 7 and youngest in year 5.
Therefore as per 2013 Constitution the Supreme Law of Fiji Chapter 2 sub heading Right to life Section – 8. Every person has the right to life, ad a person must not be arbitrarily deprived of life.
(b) This ground is irrelevant to the proceedings under Section 169 of the Land Transfer Act. The appellant cannot succeed in satisfying the court of his right to remain in possession of the subject property by his assertion of paying water bills, EFL bills and Town rates. They are neither suggestive of promissory nor proprietary estoppel. The appellant did not succeed in showing that the title of the property did not pass to the respondent at mortgagee sale or that the mortgagee namely ‘Westpac Banking Corporation’ had any obligation in law or in equity to permit the appellant to continue occupying the property such that he could show cause why the respondent should not have obtained the order for vacant possession. Besides, the appellant has not specifically alleged corruption, collusion or fraud against the purchaser at mortgagee sale namely the respondent and the mortgagee, i.e. the Westpac Banking Corporation. The ground (5) lacks merits.
(06) Ground – (6)
(a) 6. That Proprietary estoppel of the said property Nitya Nand and sons Arcade consisted
of three business on the said property of Late Mrs. Champa Wati, who died on 12th June, 2017. All the renovation works on the said property was carried out by each individual proprietor as per approved plan dated 14th September, 2007 approved by Ba Town Council, OHS and National Fire Authority and renovation completed on 30th April, 2008. In this matter no Notice was served to me and to any of the business proprietors and forcefully closing our business and forcefully removing items from our business outlets since 3rd August, 2016 by the Plaintiff. In this case each individual business proprietors should have been compensated. Each individual proprietor was investor in the said property and they were late Mrs Champa Wati – Proprietor of Nitya Nand and Sons and National Construction Company, Mrs Yogita Nand – Proprietor of ENS Quantity Surveyors and Management Services. Proprietors own a part of Nitya Nand & Sons Arcade that has value. In other words proprietors have acclaim on portion of the assets owned in the Nitya Nand & Sons Arcade belonging to Deceased Champa Wati.
“Proprietary estoppel is one of four principal mechanisms to acquire rights over property, seen particularly in the case of land. A legal claim, especially connected to English land law, which may arise in relation to rights to use the property.”
However Proprietary Estoppel was not considered by the Honourable Master Judge.
(b) The learned Master stated as follows in paragraph (28) and (29) of the Judgment.
In the background of above decision and the provisions of section 40 above, the defendant cannot succeed in satisfying this court of his right to remain in possession of the subject property or getting the plaintiff company’s summons dismissed, with his mere assertions of history and family business contained in his affidavit. His averments neither suggestive of promissory nor proprietary estoppel. Accordingly, Plaintiff Company’s case is a clear-cut and straightforward case, where no complicated issues involved. Therefore, the plaintiff company is entitled to have this matter decided in its favour as Justice Gould V.P. stated in Ram Narayan v. Moti Ram (Civil Appeal. No. 16/83 FCA, decided on 28.07.1983) as follows:
“...the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way”.
It seems that the defendant has been in occupation of the property for some time with his late mother and having business too. However, being in occupation for long time or care and compassion for the land or the property cannot supersede the clear principles on which the Land Transfer Act (Cap131) is founded. In CPS Realty-Fiji Inc And David Simpson & Anne Simpson Civil Action No. 178/90 (unreported) Jayaratne J., held that:
“Section 169 of the Land Transfer Act is very strict in its application. It is very effective piece of legislation to obtain recovery of possession of land by Summary
Judgment. No amount of compassion, unfairness or caring for the land as urged by the Defendant can be allowed to supersede the statutory
legal effect of the Section”.
(c) It is clear that there is no evidence of any promissory or proprietary estoppel. As I
stated in paragraph 1(d) above, there is no prior mortgage security in the form of an equitable mortgage. Thus, the doctrine of proprietary or equitable estoppel does not apply. Therefore, it is equitable for the ‘Westpac Banking Corporation’ to assert its right of mortgagee sale. The ground (6) lacks merits.
(07) Ground – (7)
(a) 7. That my Affidavit in Opposition is clearly summarised on property issues, analysed
and detailed on true facts of mental torture, punishment in a sense no sufficient ventilation as it is not good for healthy environment, no privacy for me and my family, trespass of the land and building, house arrest for me and my family, forcefully and illegally closing and removing of items from each business proprietors area who all invested in their own business and property within the Nitya Nand & Sons Arcade in the property of Deceased Champa Wati since 3rd August, 2016. However Honourable Master Judge finds it irrelevant to the proceedings and failed to consider the physical evidence, which was provided on the Hearing day.
In the language of business environment, no individual can perform to his or her full capacity unless they are free of all personal inhibitions.
Therefore as per 2013 Constitution the Supreme Law of Fiji CHAPTER 2 under sub heading Heading Freedom from cruel and degrading treatment Section 11 – Paragraph (1) every person has the right to freedom from torture of any kind whether physical, mental or emotional and from cruel, inhumane, degrading or disproportionate severe treatment or punishment.
(b) I have dealt with this in ground one.
(08) Ground – (8)
(a) 8. That the Plaintiff documents filed by a qualified lawyer in regards to the Affidavit in
Reply filed on 7th February, 2018 in Paragraph 7 as it clearly states that “I am advised by my solicitor Messrs Krishna & Co and believe that the Affidavit in Reply is scandalous and vexatious and should be struck out of abuse of process”. In this case which documents Plaintiff is proving.
(b) The ground is unintelligible and vague and difficult to respond to. The ground (8) is
dismissed.
(09) Ground – (9)
(a) 9. That the Plaintiff documents is invalid filed by a qualified lawyer in regards to the
Affidavit in Support of Rishikendra Kumar sworn on 6th November, 2017 and filed on 7th November, 2017. The second page of sworn in documents do not carry stamp of Commissioner of Oaths and there is no proper signature.
(b) This was never raised before the learned Master. Besides, the appellant has waived the irregularity by responding to the respondent’s affidavit in support.
(10) Ground (10), (11) and (12)
(a) 10. That no mortgage was carried out by the defendant on the said registered
property of Deceased Champa Wati.
However as per 2013 Constitution the Supreme Law of Fiji CHAPTER 2 under heading Freedom from Arbitrary Evictions Section 39 Paragraph (2) No Law may permit arbitrary evictions.
Therefore as per 2013 Constitution the Supreme Law of Fiji CHAPTER 2 under sub heading Application section – 6 paragraph (7) subject to the provisions to this constitution, laws made, and administrative and judicial actions taken, after the commencement of this constitution are subject to the provisions of this chapter.
(b) It is difficult to discern any serious issues from ground (10), (11) and (12).
The appeal lacks merits.
ORDERS
(01) The appeal is dismissed.
(02) There will be no order as to costs.
...............................
Jude Nanayakkara
[Judge]
High Court - Lautoka
Friday, 05th February 2021.
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