IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT
CIVIL APPEAL NOs. ABU 077 of 2019 & ABU
0022 of 2020
(Civil Action NO. HBC 347 of 2018)
BETWEEN : JOSATEKI TAGI and THERESA ELIZABETH FIONA
TAGI
Plaintiffs/Appellants
AND : REGISTRAR OF TITLES
1st Defendant/1st Respondent
: ATTORNEY GENERAL
2nd Defendant/2nd Respondent
: VIRGINIA KWONG
3rd Defendant/3rd Respondent
Coram : Basnayake JA
Lecamwasam JA
Dayaratne JA
Counsel : Mr. S. Valenitabua for the Appellant
Ms. M. Faktaufon for the 1st and 2nd Respondents
Mr. N. Lajendra for the 3rd Respondent
Date of Hearing : 3 November 2022
Date of Judgment : 25 November 2022
JUDGMENT
Basnayake JA
[1] This is an appeal filed by the Plaintiffs/Appellants (Plaintiffs) to have the judgment of the
High Court dated 22 August 2019 set aside. By this judgment the summons of the
Plaintiffs dated 3 July 2019 was declined with costs.
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[2] The Plaintiffs on 23 November 2017 (pgs. 75-76 of the Record of the High Court (RHC))
has made an application to the 1st Defendant/1st Respondent (1st Defendant) for a vesting
order. In that the Plaintiffs stated that the Plaintiffs purchased Certificate of Title (CT)
16966 in or around 1988 and have remained in possession of the same land. The Plaintiffs
stated that the adjoining land is CT 16967 and they have been in possession of the same
from 1988 to date.
[3] In that application the Plaintiffs state, “5. That there are no documents or evidence of title
affecting such land in our possession or under our control other than those included in
the schedule herein; 6. That save as aforesaid we are not aware of any lease, mortgage
or encumbrances effecting the said land or that any person other than ourselves has any
Estate Interest therein”.
[4] The 1st Defendant has responded to the above application (pg.92) in an email notifying
that, “In order to lodge a vesting order application on any title, there should not be any
dealings registered on the title within 20 years”. The dealings are a mortgage that was
executed by the 3rd Defendant to Bank of Hawaii (pgs. 50-56 RHC) on 17 March 1999
and discharged in January 2018 (pg. 58).
[5] Thereafter the Plaintiffs filed originating summons on 20 November 2018 seeking:
1. Whether the Plaintiffs’ application for vesting order is properly before the 1st
Defendant and whether they have satisfied the three elements in section 78 of the
Land Transfer Act (LTA) of Fiji in :-
(a) Continuous possession for a period of not less than twenty years.
(b) Is such that, the applicants for vesting order would have been entitled to
estate in fee simple in the land on the ground of such possession and;
(c) The applicants could tag-on the period of possession of his or her
predecessor.
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[6] The 1st and the 2nd Defendant/Respondents (hereinafter referred to as the 1st Defendant)
in response (pgs. 46-48) stated that the last registered proprietor of CT 16966 is Epeli
Nadriubalavu and the registered proprietor of CT 16967 is Virginia Kwong (3rd
Defendant/Respondent). The 1st Defendant further stated that there have been dealings on
CT 16967 during the last 20 years. No 16967 had a mortgage registered on 17th March
1999 which was discharged by the 3rd Defendant in February 2018. Therefore it was clear
to the Registrar of Titles (1st Defendant) that the 3rd Defendant as the last registered
proprietor had a legal interest over the said land. The Plaintiffs have failed to satisfy the
Registrar of Titles that for all intents and purposes they were in continuous possession for
not less than 20 years.
[7] The 3rd Defendant stated that the property CT 16967 is in a residential zoning area and
not agricultural. The receipt issued to the 3rd Defendant by the Nasinu Town Council
vouch for this. The 3rd defendant has also annexed rates paid to Nasinu Town Council
from the year 2006 to 2018 (pgs. 29 to 30) marked “c”. The 3rd Defendant also filed a
statement made to the police in respect of a construction of a drive way on this property.
The 3rd Defendant stated that she has engaged a lawyer to remove a storage yard and lovo
shed that has been illegally put up in the property.
[8] The learned Judge in his judgment (pgs. 6-9) states that the Plaintiffs have not established
the precondition laid down in section 78 of LTA and that the assertions in the affidavit of
the Plaintiff are unsubstantiated. Further it was stated that, the alleged period of
possession was not continuous as a mortgage was registered on the land on 17 March
1999. In Bechani Golay v North End Property Development Ltd [1989] FJCA 5[1989]
35 FLR 89 the court said that, “In order to constitute title by adverse possession the
possession relied on must be for the full period. Also in Daya Wati v Registrar of Titles
[2017] FJCA 99 (14 September 2017) it was held that the Plaintiff is required to establish
adverse possession as per section 78. Hence the learned Judge held that the Plaintiff’s
application was rejected correctly by the 1st Defendant and declined the summons with
costs.
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[9] Grounds of Appeal:
1. The Learned Judge erred in law and in fact in failing to hold that Section 78 of the
Land Transfer Act is the correct procedure in determining whether the vesting order
application should have been accepted.
2. The Learned Judge erred in law and in fact in failing to hold that the Plaintiff/Appellant
have had uninterrupted actual control with intention to use the said land for 28 years
now, without any objection from the 3rd Defendant.
3. The Learned Judge erred in law and in fact in holding that the Appellants’ vesting
order application cannot succeed because there is a recent dealing in the title and such
dealing or mortgage interrupts the Appellants’ continuous possession.
4. The Learned Judge erred in law and in fact in failing to hold that the Registrar of Titles
had no legal grounds or right to refuse the Appellants’ joint application for vesting
order under section 78 of the Land Transfer Act.
5. The Learned Judge erred in law and in fact in failing to consider the Fiji Court of
Appeal authority in Hari Prasad v Mira Sami & Others Civil Appeal No. ABU 118 of
2017 that what is required of the Appellants to show the Registrar of Titles is some
tangible evidence of continuous possession for more than 20 years.
6. The Learned Judge erred in law and in fact in failing to consider that the Appellants’
vesting order application must be considered first pursuant to the express requirements
under section 78 of the Land Transfer Act which excludes dealing in the title.
7. The Learned Judge erred in law and in fact in failing to consider that if the Appellant’s
succeed in their vesting order application then the Registrar of Titles issues them with
a new title ignoring all dealings in the title.
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Submission by the learned counsel for Plaintiffs
[10] The learned counsel submitted that the Plaintiffs’ application for a vesting order was as
per S. 78 of the LTA which require:
i. Continuous possession for a period not less than 20 years
ii. On the ground of such possession applicant would have been entitled to an estate fee
simple
iii. The applicant could tag-on the period of possession of his predecessor.
[11] The learned counsel submitted that the 1st Defendant was in error in refusing to accept the
Plaintiffs’ application for a vesting order on the ground that there was a dealing registered
on the title for the past 20 years. The learned counsel relied on the judgment of Wati v
Registrar of Titles (ABU 6 of 2016) (14 September 2017) and Prasad v Sami & Others
[2019] FJCA 100 (7 June 2019). However I find that the facts in these two cases are
different. In both these cases there were no dealings with the land unlike in the present
case where a mortgage has been registered and discharged. It was this mortgage and the
discharge that the 1st defendant has referred to as dealings and considered as an
interruption. The Plaintiffs claim possession from 1988. However a mortgage has been
registered with the 1st Defendant in 1999. That was with Bank of Hawaii. Later the
business of Bank of Hawaii was taken over by the Australian and New Zealand Bank
(ANZ) who discharged the mortgage in 2018. The Plaintiff does not show any adverse
claim against the Bank.
Submission of the learned counsel for the 3rd Defendant
[12] The learned counsel submitted that although the learned counsel for the Plaintiffs
submitted that the existence of a mortgage is immaterial, the Plaintiffs state in the
application for a vesting order (pgs. 75-76) in paragraphs 5 and 6 that, “there are no
documents or evidence of title affecting such land in our possession or under our control
other than those included in the schedule herein and that save as aforesaid we are not
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aware of any lease, mortgage or encumbrance affecting the said land or that any person
other than ourselves has any Estate interest therein” (emphasis added).
[13] The learned counsel for the 3rd Defendant submitted that the Plaintiffs have omitted
paragraph 3 of Form 13 for the application for a vesting order. Section 3 of Form 13
states, that, “there are no leases, mortgages or encumbrances registered on the
abovementioned title save and except the following (set out short particulars and state
whether these leases, mortgages and encumbrances have been extinguished or ceased to
affect the land and, if so, how”.) The learned counsel submitted that at the bottom of the
Plaintiff’s application for a Vesting Order inviting information for any
“MEMORANDUM OF PRIOR LEASES, MORTGAGAES AND ENCUMBRANCES
REFERRED TO:” has been left blank. The Plaintiffs avoided answering and decided to
leave it blank. The Plaintiffs did not deny the existence of such mortgages or
encumbrances.
[14] As against this the 1st Defendant found a mortgage registered in the Register in the year
1999, which mortgage was discharged in 2018. Therefore on their own declaration the
Plaintiffs cannot maintain this application. When the 1st Defendant was told that there is
no mortgage registered against this land and when the 1st Defendant found such
registration what could the 1st Defendant as Registrar of Titles do other than rejecting
such dubious application? The learned counsel also submitted that the Plaintiffs made no
effort in court to produce evidence of possession. If the Plaintiffs claimed that this land
was possessed through cultivation then the question would have been how it could be
done being a residential property where rates have been paid to Nasinu Town Council by
the 3rd Defendant.
Adverse Possession
[15] As per the facts of this case it becomes clear that the Plaintiffs have been claiming title to
the adjoining land registered under the name of the 3rd Defendant. The Plaintiffs claim
that, they got title to CT 16966 in 1988 and ever since that they have been in possession
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of the adjoining land, which is CT 16967. The plaintiffs state that the possession was
through cultivation of cassava and vegetation, and having a lovo pit on the earth of this
property. The Plaintiffs also said that they were holding weddings and parties in the land
in order to claim title under section 78 of the LT Act. However the 1st Defendant who is
the Registrar of Title found that this land is registered in the name of the 3rd Defendant
who has mortgaged this land in 1999 to Hawaii Bank and that there is no continuous
possession. The learned Judge relied on the principle of adverse possession and having
declared that the Plaintiffs failed to prove adverse possession declined the reliefs claimed
by the Plaintiff.
[16] I would like to mention some authorities from the Supreme Court of Sri Lanka which may
give some guidance. In De Silva vs. Commissioner General of Inland Revenue (80 New
Law Reports (NLR) 292) Sharvananda J. held that where a person who bases his title in
adverse possession must show by clear and unequivocal evidence that his possession was
hostile to the real owner and amounted to a denial of his title to the property claimed.
In Kiri Hamy Muhandirama vs. Dingiri Appu (6 NLR 197) Moncrieff J. decided that in
order that a person may avail himself of section 3 of the Prescription Ordinance No. 22
of 1871, the possession must be shown from which a right in another person cannot be
fairly or naturally inferred.
Don Peter Ranasinghe vs. Nandasekera (SC Appeal 33/ 2010 (Supreme Court Appeal
No. 33 of 2010)).
To activate the provision of law… demonstration of an overt act is fundamental.”
[17] In this case the Plaintiffs claim in their application before the 1st Defendant that they were
not aware of the existence of a mortgage. The existence of a mortgage is found in the
register maintained by the 1st Defendant. The Plaintiffs did not have a permanent
cultivation or structure built to challenge the ownership of the true owner the 3rd
Defendant. 20 years continuous possession should be possession adverse to the ownership
of the true owner. A secret intention to possess cannot be considered as amounting to
adverse possession and is insufficient to satisfy the ingredients required by law.
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[18] Considering the above authorities I am of the view that the Plaintiffs/Appellants cannot
succeed and the appeal shall be dismissed with costs in a sum of $7500.00 payable to the
1st, 2nd and 3rd Defendants/Respondents in equal amounts ($2,500.00 each) within a period
of 28 days from the date of this judgment. The grounds of appeal are answered
cumulatively in the negative.
Lecamwasam, JA
[19] I agree with reasons given and conclusions arrived at by Basnayake, JA.
Dayaratne, JA
[20] Having read the judgment in draft of Basnayake JA, I agree with the reasons and
conclusions.
Orders of Court:
1. The appeal is dismissed.
2. Costs in a sum of $7500.00 payable to the 1st, 2nd and 3rd Respondents in equal share
($2500 x 3) within 28 days from the date of this judgment.
