Home | Databases | WorldLII | Search | Feedback Court of Appeal of Fiji

Narsey v Motiram [2019] FJCA 31; ABU0039.2017 (8 March 2019)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

Civil Appeal No. ABU 0039 of 2017
(High Court Civil Action No. HPP 62 of 2014)

BETWEEN:

1. RAJENDRA JAGMOHAN NARSEY

2. HEMANT JAGMOHAN NARSEY

Appellants

AND:

Dr. MAHENDRA KUMAR MOTIRAM
1^st Respondent

AND:

REGISTRAR OF TITLES
2^nd Respondent

Coram: Lecamwasam, JA
Almeida Guneratne, JA
Jameel, JA

Counsel: Mr. R. Singh & Mr. H. Nagin for the Appellants
Mr. M. Nand for the 1^st Respondent

Ms. S. Ali for the 2^nd Respondent

Date of Hearing: 14 February 2019

Date of Judgment: 8 March 2019

JUDGMENT

Lecamwasam, JA

[1] I agree with the reasons and the conclusion of the judgment of Jameel, JA.

Almeida Guneratne, JA

[2] I agree with the reasoning, conclusion and the orders proposed by Jameel, JA.

Jameel, JA

Introduction

[3] This is an appeal from the Judgment of the High Court of Suva dated 21 March 2017, dismissing the appeal of the 1^st Defendants/Appellants (original 1^st Defendants), against the Order of the learned Master of the High Court of Suva, who, by his Ruling 12 July 2016, dismissed the application of the 1^st Defendants/Appellants (“the Appellants”), for an order of court under Order 18, Rule 18 (1) (b) , (c) and (d) to strike out the Originating Summons of the Appellants, and an order of court under Order 5, Rule 2 (c) of the High Court Rules, 1988 and the inherent Jurisdiction of the Court.

[4] The matter for determination by this court is whether the learned Judge of the High Court was correct in dismissing the appeal of the Appellants seeking the striking out of the Originating Summons filed by the 1^st Respondent.

Background – the case in the High Court

[5] The 1^st Respondent (the original Plaintiff) instituted proceedings by way of Originating Summons and supporting affidavit dated 26 November 2014, seeking inter alia the following relief:

“1. An Order that a Transmission by death document be registered on Certificate of Title No. 5890 to record the 1^st defendant as Executors and Trustees of the Estate of Jagmohanlal Jiwan aka Jagmohanlal Narsey (Deceased).

2. An Order that the 1^st Defendant execute a Deed or other document to be approved by the 2^nd Defendant to regularise the error on Transfer Dealing No. 346592 to reflect the true and correct undivided share held by each proprietors of Certificate of Title No: 5890.”

[6] As will be set out below, the effect of the relief sought was a correction of the Register of Titles, in the absence of pleading fraud or common mistake. Instead, the gravamen of the 1^st Respondent’s application was that an alleged mistake in the Deed of Transfer that had been executed on 27 September 1993 be corrected with reference to the financial statements of the Company that had Title to the property. This correction was sought to be done in terms of a direction to the Registrar of Titles, under the provisions of section 168 of the Land Transfer Act, (Cap 133), (“the Act”).

[7] The Appellants filed affidavits in opposition, and applied for striking out of the 1^st Respondent’s application under Order 18, r18 (1) (a), (b), (c) and (d) of the High Court Rules, 1988. By Ruling dated 12 July 2016, the learned Master dismissed the application for striking out on the basis that there are ‘issues and disputes that need to be heard and determined at a full hearing’, rather than being determined by summary procedure. The Appellants then appealed against this Ruling to the High Court, which by its Judgment dated 21 March 2017 dismissed the appeal of the Appellants with an order for costs of $3000.00 to be paid by the Appellants to the 1^st Respondent. This is an appeal against that judgment of the High Court.

[8] For the reasons that will be set out below, I hold that the relief sought by the 1^st Respondent in the lower court, cannot be granted because the powers of the Registrar in terms of the provisions of section 168 of the Land Transfer do not capture errors of the nature alleged in this case, and in any event, such powers have to be exercised in accordance with the principles underlying the other provisions of the Act.

The affidavit of the 1^st Respondent - dated 26 November 2014

[9] The essence of the affidavit in support of the Originating Summons filed by the 1^st Respondent was that the Appellants are the Executors and Trustees of the late Jagmohan Jiwan Narsey, aka Jagmohanlal Narsey aka Jagmohanlal Jiwan aka Jagmohanlal Narsey (“Jagmohanlal”). On 23 June 1940 a business named Hazrat Building Company (“the Company”) was formed, in 1977 there was a change in the composition of the partnership; the new partners were also the registered proprietors of a freehold property registered in Certificate of Title No.5890, the only asset of the Company.

[10] In the affidavit dated 26 November 2014, in support of the Originating Summons, the 1^st Respondent stated as follows:

“6. THAT the deceased had 13.33% of shares in the Company which he acquired through inheritance, and had knowledge of the fact that he had 13.33% shares in the company till the time of his passing away. A copy of the financial Statement signed by Partners showing the state of affairs of the partnership for the years 1993 to 2012 and the shares held by each partner is annexed hereto and marked as annexure M4”

7. THE registered proprietors of the subject property and the shares respectively held by each of them in the books of the company were as follows: -

a. Mahendra Kumar Motiram -40%

b. Thakoral Narsey- 6.67%

c. Jagmohan J. Narsey -13.33%

d. Estate of Chimanlal Narsey later transferred to Kiran- 4%

e. Jayantilal R. Narsey-4%

f. Ranchod R. Hazrat-4%

g. Bhupendra K. Hazratwale – 4%

h. Manhar Lal R. Narsey-4%

i. Narsey’s Ltd- 20%

8. In October 1993 two undivided fifth shares (totalling 40%) were sold to two partners namely Mahendra Kumar Motiram and Thakorlal Narsey, the former purchasing the share of shareholders (d) to (h) and the latter from shareholder (i). Prior to purchase of the shares, the shareholders of Narseys held a meeting on 25^th August 1993 where it was agreed that Thakorlal Narsey (Partner) would purchase the Hazrat Building share at $90,000 and pay the said lump sum payment towards the loan facility approved to Hazrat Building Company. Copies of the Minutes of Narsey’s Ltd dated 25^th August 1993 and Loan offer letter dated 19^th August 1993 from Bank of Baroda together with the loan account statement of Hazrat Building is annexed hereto and marked collectively as annexure M5.”

The ‘error’ – discovery and ‘correction’

[11] In paragraphs 9 and 10 of the affidavit, the 1^st Respondent states as follows:

9. That I have now discovered that there was an error in the said transfer documents registered on 8^th October 1993 as the transfer had been made to 3 partners. The deceased Jagmohanlal Narsey acquired additional 13,33% in error. Thus his total share increased to 26.66%. A copy of the transfer document No: 346592 is annexed hereto and marked as annexure M6. In fact if the transfer was correctly registered my share would have been 60%, Thakorlal Narsey 26.67 % and Jagmohanlal Narsey to remain at 13,33% till his passing away in 2013.

10. That I am trying to rectify this error on the Title of the property that it could correctly reflect the share percentage of each partner of the company.

11. I AM advised and I believe that the rectification of the error would not affect the deceased’s share in the books of the partnership” (Emphasis added).

[12] It is this ‘error’ described in paragraph 9 of the affidavit, namely the inclusion of the name of Jagmohanlal Jiwan, in Transfer Document 346952, which is sought to be ‘corrected’ by the 1^st Respondent through the order sought in the Originating Summons.

[13] He states that the Appellants are the Executors and Trustees of the late Jagmohanlal, who, at the time of his death owned 13.33% of the shares in the said Company, which Jagmohanlal had inherited.

[14] In October 1993, “two undivided fifth shares” (sic) (described as such in the Deed of Transfer 346952), totalling 40%, were sold to two partners namely himself and Thakorlal Narsey. He purchased the shares of the partners named in (d) to (h) (in paragraph 6 of the supporting affidavit), and Thakorlal Narsey purchased the 20% shares that Narsey’s Ltd. owned in Hazrat Building Company. It was agreed as reflected in the Minutes of the Board Meeting of Narseys held on 25 August 1993, that the said Thakorlal Narsey would purchase the share in the building at $90,000 with a loan from the Bank of Baroda. The said Board Minutes were marked as ‘M5’.

The Appellant’s affidavit in reply - 24 March 2015

[15] In replying paragraph 6 of the 1^st Respondent’s affidavit (reproduced in paragraph [10] of this judgment), whilst admitting that they were the Trustees and Executors of the Estate of the late Jagmohanlal and that he inherited 13.33% of shares in the Company, the Appellants pleaded that that in addition to those shares, in 1993, upon the closure of Narsey’s Limited, five other family shareholders, transferred their shares to him, adding to the shares which he already owned. The Appellants denied the contents of paragraph 8 of the 1^st Respondent’s affidavit and pleaded “that two undivided fifth”(sic) shares in Certificate of Title 5890 had been properly transferred to the 1^st Respondent, Thakorlal Jiwan as well as their father the late Jagmohanlal Jiwan. They pleaded that therefore, the 1^st Respondent could legally have only 53.33 % of the shares, and not 60% shares, and that the transfer had been done by Messers Patel & Co. Solicitors, on instructions of the 1^st Respondent, and that he was thus estopped from now challenging the transfer.

[16] They pleaded further that the loan from Bank of Baroda had not been taken individually by Thakorlal Narsey alone, but by the partnership, and that the Transfer No.346592 showed clearly that the transfer was for a consideration of $180,000.00 to be paid by three persons; Mahendra Kumar Motiram (Original Plaintiff- 1^st Respondent), Thakorlal Jiwan (who has not been made a party to this case), and Jagmohanlal Jiwan (their late father), which transfer had been duly registered on 8 October 1993.

The Reply affidavit of the 1^st Respondent dated 16 April 2015

[17] The position taken by the 1^st Respondent was that the ownership of Certificate of Title 5890 (which is the only asset of the company), ought to reflect the financial statements of the Company. He claimed that these had been signed by all the partners, including the deceased (father of the Appellants), who had not raised objection or disputed that fact that he had only 13.33% of the shares in the Company. He denied that the deceased Jagmohanlal received a further 13.33% of the shares in the Company by way of transfer in 1993, as Narsey’s Ltd had only 20% in Hazrat Building Company which was purchased by Thakorlal Narsey alone, and not by any other shareholder. In paragraph 12 of this affidavit he stated as follows:

“I deny paragraph 8(i) of the Affidavit and say that the Transfer document No: 346592 was not properly transferred as the transfer (sic) as the two “undivided fifth share” (sic) ought to have been transferred to Mahendra Kumar and Thakorlal Narsey only and not to Jagmohan Narsey. The transfer upon registration of the shares ought to reflect and match what is shown in the books of the Company. To this effect I refer to the financial statement of 1993 and the other financial statements thereafter.”

[18] The 1^st Respondent stated that when the error in the transfer document was discovered his Solicitors “had already prepared a Deed for regularization of shares” in Hazrat Building Company Ltd. and had sent the same to Jagmohanlal’s Solicitors in Australia on 19 September 2013, for execution. His Solicitors however replied asking for time to respond after contacting Jagmohanlal. Shortly thereafter, Jagmohanlal passed away on 27 October 2013. It is significant that it was only together with this second affidavit, that the 1^st Respondent annexed a letter supposedly written by Hari Krishna Thakorlal Narsey (“M3”) the only transferee to Transfer No. 346592, that the 1^st Respondent himself acknowledges.

The Appellant’s application for Striking Out the 1^st Respondent’s Originating Summons

[19] By Summons dated 10 June 2015, and affidavit in support dated 1 June 2015, the Appellants sought an order of court under Order 18. r.18 (1) (a), (b), (c) and (d) of the High Court Rules 1988, for striking out the 1^st Respondent’s action, with indemnity costs. The Appellant pleaded as follows: that his father the late Jagmohanlal Jiwan died on 27 October 2013 and Probate No. 55256 was granted in respect of his estate on 22 May 2014. The application for striking out was based on the following grounds:

(i) Incorrect procedure: - The Appellants contended that the 1^st Respondent had adopted the incorrect procedure of Originating Summons as the Orders sought in the Originating Summons cannot be determined on the affidavit evidence alone as there are disputed facts, and that there needs to be oral testimony to establish the impugned registration, and whether there was really a need to regularize the transfer.

(ii) Failure to add necessary parties- The Appellants contended that all persons who were parties to the impugned transfer ought to have been added as parties. In this regard, since it is the deed of Transfer No. 346952 (RHC 36) which first reflects what the 1^st Respondent claims to be an ‘error’, the testimony of the Transferors is necessary.

(iii) Limitation- In this regard the Appellants pleaded that the Transfer in issue was executed on 28 September 1993, and was registered on 8 October 1993. The 1^st Respondent instituted action by way of Originating Summons on 26 November 2014, almost 21 years later, and that any action filed out of the limitation period is an abuse of the process of court, in the particular circumstances.

(iv) Prejudice and cost: The action has been instituted after the death of their father, and that the 1^st Respondent did not take action prior to his death to regularize the Transfer. Due to the time taken between the date of the registration of the transfer (1993), and the institution of this action (2014) by the 1^st Respondent, they are greatly prejudiced in defending the action and will be denied a fair trial, should the action proceed.

The 1^st Respondent’s Affidavit objecting to the application for Striking Out

[20] The essence of the affidavit is that the action was instituted by Originating Summons to regularize the error in the transfer documents in order to bring it in line with the partnership shares as reflected in the financial reports of the business. The 1^st Respondent pleaded that the ‘error’ in the Transfer registration No. 346592 was that it failed to reflect the correct undivided share held by each proprietor of CT 5890, which he claimed must be determined by reference to the financial statements of the business. He claimed that the action was instituted only after the error in the transfer documents was discovered in 2011, and since the action was instituted in 2014, it is not statute – barred.

[21] Although the 1^st Respondent pleads that the ‘current owners’ as reflected in Transfer No. 346592 are made parties to this action, Thakorlal Jiwan is not a party. The 1^st Respondent pleaded that the transferors of Transfer No. 346952 are not made parties to the action because there is no cause of action against them. However, this position is inconsistent with the main claim of the 1^st Respondent, that it is the mistake in the Transfer Deed that needs to be corrected. In that case, at least all the transferees should have been made parties.

The Judgment of the High Court

[22] The essence of the judgment is that the action was intended to “correct certain mistakes’, and that “if there is a mistake, as claimed by the 1^st Respondent in the said document, then the Appellants are liable in law to correct it with or without a request from the plaintiff”. In paragraph [20] of the judgment, the learned Judge went on to hold as follows:

“As I understand the plaintiff has not come to court on the basis of a transfer but transmission by death or in other words succession to property upon the death of the owner.”

[23] Finally, in paragraph [21] of the judgment, the learned Judge held as follows:

“In terms of section 4(1) of the Limitation Act, any action founded on simple contract or on tort must be brought within six years of the accrual of the cause of action. There is no contract of sale and purchase in question in this matter. What the Plaintiff is seeking in this matter is to correct any error in the Transfer Dealing bearing No. 346592 and have the Transmission by Death document registered. Section 4 of the Limitation Act has no application to the matter before this court.”

Grounds of Appeal

[24] The Appellants have urged six grounds of appeal which are reproduced below:

1. The Learned Trial Judge erred in law and in fact in not properly taking into consideration that the action was filed in “Probate jurisdiction” and no relief is sought by the 1^st Respondent which deals with probate jurisdiction. The action by the 1^st Respondent which deals with probate jurisdiction. The action by the 1^st Respondent does not fall within the ambit of Order 76 of the High Court Rules.
   

2. “The Learned Trial Judge erred in law and in fact when he failed to take into consideration that the Transferors in respect of the Transfer No. 346592 dated 28^th September, 1993 were not parties to the proceedings and none of the Transferors were challenging the said Transfer and 1^st Respondent had no locus to bring the proceedings to Court on his own.”

3. “The Learned Trial Judge erred in law and in fact when he failed to give proper weight to the fact that the Transfer No. 346592 was prepared and witnessed by Solicitor J.M.Patel and there was no evidence before the Court to say that there was a mistake in the Transfer No. 346592 and the 1^st Respondent was bound to fail.”

4. The Learned Trial Judge erred in law when he failed to consider that any mistake in respect of the Transfer No. 346592 has to be a common mistake and can only be corrected on an application by the Transferors and Transferees.”

5. The Learned Trial Judge erred in law and in fact in not taking into consideration that the 1^st Respondent did not take any step from 1993 to 2013 when he was fully aware of the transaction and he had full control and possession of the documents since 1993, when he could have with reasonable diligence discovered and taken steps at the early stage.”

6. The Learned Trial Judge erred in law in holding that the Limitation Act had no application to the matter before the Court when the action deals with the Transfer of property which is contractual in nature.

Matters for determination by this court

[25] The matters for determination by this court are the scope of the powers of the Registrar of Titles under section 168 of the Act, the types of errors that can be corrected under the provisions of section 168, the basis of the correction of such errors, and at what point in time such errors can be corrected. It is against this backdrop that the court must consider the suitability of an action instituted by Originating Summons, and whether or not such action ought to be struck out in terms of Order 18, r. 18 of the High Court Rules, 1988. Accordingly, in this appeal it will be necessary to consider the nature of the mistake sought to be corrected, the context in which the mistake if any, is alleged to have occurred, and the law relating to limitation of actions.

[26] It is necessary to set out at the outset that the actual effect of the application of the 1^st Respondent in the lower court is an amendment of the Register of Titles. Further, that amendment is sought to be effected in respect of a contract, which was a sale of an interest in land. The said contract is reflected in a Transfer Deed bearing No.346592 dated 27 September 1993, by which five named Transferors, transferred to three named Transferees, “two undivided fifth shares” of their rights in the land, which is the subject matter of the said Deed of Transfer. It is this transfer that is now alleged to contain a ‘mistake’. It must be noted at this stage that all parties to the contract are not parties to the action, although its contents are now challenged.

[27] Ground one of the appeal was not pursued by the Appellants and it is therefore unnecessary for me to consider it.

[28] The second to sixth grounds of appeal can be broadly categorized under two heads: mistake in a contract which is contained in a Deed of Transfer relating to an interest in land, and the law relating to limitation in respect of the correction of such a mistake.

[29] The mistake alleged by the 1^st Respondent is that when the Deed of Transfer No. 346592 was executed, the name of the deceased Jagmohanlal was mistakenly and erroneously inserted. The 1^st Respondent has not pleaded as to how the mistake occurred, who was responsible for it, and most significantly, has not pleaded fraud on the part of any person. Thus, this alleged ‘mistake’, hangs as it were, unidentified and in suspense.

The powers of the Registrar of Titles under the Land Transfer Act

[30] Section 168 of the Act provides as follows:

“168. In any proceedings respecting any land subject to the provisions of this Act, or any estate or interest therein, or in respect of any transaction relating thereto, or in respect of any instrument, memorial or other entry or endorsement affecting any such land, estate or interest, the court may by decree or order direct the Registrar to cancel, correct, substitute or issue any instrument of title or make any memorial or entry in the register or any endorsement or otherwise to do such acts as may be necessary to give effect to the judgment or decree or order of such court”. (Emphasis added).

[31] In this matter, I am guided by the judgment of the Supreme Court of Fiji in Star Amusement Ltd. v Prasad and Others [2013] FJSC 8; CBV0005.2012 (23 August 2013), in which the court said inter-alia, said:

“58. In exercising the powers of correction conferred by sections 131, 166 and 168, the Registrar of Titles and the Court should be mindful of the other provisions of the Land Transfer Act which have provided for indefeasibility of title, and the fact that in those provisions, such as sections 39(1), 40, 41, 42(1)(c) and 42(3), an intention to protect the title of the registered proprietor except where there is fraud, is manifest. In Frazer v Walker, supra, Lord Wilberforce made it clear that section 183 of the New Zealand legislation which corresponds with our section 42(3) limited the trar's powers of correction to the period before which a bona fi60;purchaser or m or m or mortgagee acquires title. In Attorney al v Vijay Kumar amar and Everett Riley, supra, Speight VP., notat althoughhough the specific remark of Lord Wilberforeferr the restrictionstions on the Registrar's power to correct, it follows from what has been seen said earlier that if the purchaser is&bona fide he is free free from fand nand no action whether by the Registrar or by an earlier proprietor taking proceedings could avail." [Emphasis added].

[32] Clearly, the protection of infeasibility of title will apply to the title registered in favour of the 1^st Respondent, Thakorlal Narsey and Jagmohanlal. For the 1^st Respondent to displace or affect the title and interest of Jagmohanlal whose name has been registered in the Register of Titles from 1993, on the basis of an unidentified mistake, is not countenanced by any provision of law. The only way in which the alleged ‘mistake’ can be corrected is if it is established to be a simple clerical error which the Registrar of Titles is empowered to correct under the provisions of section 131(2) of the Act, or by demonstrating fraud on the part of Jagmohanlal, which is not the case here. Accordingly, for the reasons that will be set out below, the 1^st Respondent’s action by way of Originating Summons does not disclose a reasonable cause of action.

[33] The impugned Deed of Transfer No. 346592 (RHC 36), states as follows:

“IN consideration (sic) sum of $ 180, 000.00 ( ONE HUNDRED AND EIGHTY THOUSAND DOLLARS) to be hereinafter paid by MAHENDRA KUMAR MOTIRAM ( f/n/ Motiram Jamnadas THAKORLAL JIWAN and JAGMOHANLAL JIWAN both sons of Jiwan Narsey all of Suva, Fiji, Medical Practitioner and Businessmen respectively hereinafter called the transferees the receipt of which sum the transferors do hereby acknowledge do hereby TRANSFER to the transferees all the right title and interest of the transferor in the said land”

The ‘Mistake’

[34] The belatedly-impugned Transfer dated 28^th September 1993 was prepared by the law firm of H. M. Patel & Company and registered on 8 October 1993.There are 6 Transferors, all of whom have executed the Transfer on 28 September, 1993. The Transfer had not been challenged or disputed by any of the Transferors, or the other Transferees, until the 1^st Respondent did so in 2014. Nor is it the 1^st Respondent’s position that there was any dispute or no consensus ad idem between the Transferors and Transferees at the time of the execution of the Transfer. Since the entire basis of the Originating Summons is the correction of “mistake” in the Deed of Transfer, those persons who are said to have made the mistake must have been made parties. The 1^st Respondent himself states that Transfer No. 346592 ought to have included only himself and Thakorlal Narsey. If this were indeed the case, then the conspicuous absence of Thalkorlal Narsey and, or persons claiming under him, and all the Transferors as well, does not assist the 1^st Respondent’s action by way of Originating Summons, and there is no explanation as to why Thakorlal Narsey was not made a party to this action. This is significant when taken in conjunction with the contents of the email dated 24 September 2013 (RHC 48), which specifically states that Thakorlal Narsey had retained the services of the law firm of Nands Law to act for him in regard to the specific matter of “Regularization of Hazrat Building Company”.

[35] The mistake sought to be ‘corrected’ under the provisions of section 168 of the Act, is the inclusion of the name of Jagmohanlal Narsey in Transfer No.346592. In view of the fact that it is one of the transferees, namely the 1^st Respondent who is challenging the inclusion of the name of one other transferee, namely the deceased Jagmohanlal Narsey as being a ‘mistake’, the failure to add all the Transferors, and the only other Transferee that the 1^st Respondent acknowledges, namely Tahkorlal Narsey, as parties to the action, is fatal to the maintainability of the action by way of Originating Summons.

[36] In this context, it is relevant to consider the email dated 19 September 2013 is from Mukesh Nand to Mr. Subramaniyan. This states as follows:

“We act for Hari Krishna Thakorlal Narsey.

We advise that on instructions of him we prepared a Deed to regularise the erroring registration of a Transfer pursuant to which the property comprised in CT No. 5890 was transferred to 3 proprietors namely MAHENDRA KUMAR MOTIRAM, THAKORLAL JIWAN and JAGMOHANLAL JIWAN.

We understand from our client that Mr. Jagmohanlal Narsey has engaged you in this matter and you would like to discuss this further before getting your client to execute the document”.

[37] It is not enough for the 1^st Respondent to merely allege a mistake and not identify the cause or basis of the mistake, or the person responsible for it. It is significant that the 1^st Respondent does not allege that the mistake was caused by the intervention of the late Jagmohan Narsey, nor does he allege that either the Registrar of Titles, or the person who prepared the Transfer document made a mistake.

[38] Annexed to the 1^st Respondent’s affidavit dated 16 April 2015, (after the institution of the action), is a letter dated 15 April 2015 (RHC 52, written by Thakorlal Narsey addressed to his Solicitor ‘confirming’ to the Solicitor that he had retained the latter’s services to proceed “to lodge documents to regularize the shareholding of the Company”. In my view, this letter can at best, be considered a self-serving afterthought, aimed at overcoming the objection of limitation taken by the Appellants against the 1^st Respondent’s action by way of Originating Summons.

[39] The said letter is addressed to “The attention of Mr Mukesh Nand states as follows:

“Regularization of shares in Haztat (sic) Building Company

“I enclose a copy of letter of 15 July 2013, and draw your attention to the paragraph marked * wherein it was requested that you are to lodge necessary documents to regularize the shareholding of the company.

This letter serves to confirm that you had indeed started this process when Jagmohanlal Jiwan Narsey was alive.

FURTHERMORE

This letter serves to affirm that you are to continue this process”.

[40] The affidavit of the 1^st Respondent is factually incorrect because this letter is addressed to Nands Law, and not to him. Even if that fact is regarded as of no consequence, there does not appear to be any reason for the writer of the letter to confirm and reiterate to the Solicitor, a fact that the Solicitor himself had not disputed, namely, the instructions given to take steps to regularize the ‘error’ in the registration of the shareholding.

[41] In respect of the law relating to mistake, the Appellants rely on the following passage in Lovell & Christmas v Wall (1911) 104 LT 85, 93:

“The essence of rectification is to bring the document which was expressed and intended to be in pursuance of a prior agreement into harmony with that prior agreement. It presupposes a prior contract and it requires proof that by common mistake the final completed instrument as executed fails to give proper effect to the prior contract. For this purpose, evidence of what took place prior to the execution of the completed document is obviously admissible and indeed essential”.

[42] Applying the principle laid down above to the facts of the case before this court, there is no undisputed evidence in the affidavits before the court, that there was a prior arrangement which was wrongly reflected in the impugned Deed of Transfer. The learned Judge in paragraph 11 describes this as an ‘error’, and in paragraph 17 of the judgment refers to it as a ‘mistake’ in the Transfer. However, in holding as he did, the learned Judge failed to recognise that in the circumstances pleaded, the ‘mistake’ had to be a common mistake. In the absence of evidence of common mistake, there is no basis on which the learned Judge could have arrived at the finding that it was the mere correction of a mistake in the Transfer, and that such mistake can be corrected in the manner claimed by the 1^st Respondent. The contents of the affidavit filed do not reveal who made the mistake, or in what circumstances it was made, or whether it is indeed a mistake in the registration of the Transfer alone.

[43] What is relevant in this case is that the alleged mistake is in the transfer by which the 1^st Respondent himself acquired title, and which he now seeks to challenge after more than 21 years, in circumstances that do not establish that he has a reasonable cause of action.

[44] Accordingly, applying these principles to the facts of the case before this court, I am not satisfied on the affidavits that the alleged mistake in the Deed of Transfer is one that can be ‘corrected’ without doing violence to the principle of indefeasibility of title, the foundation of title by registration, and the principle underlying the provisions of the Land Transfer Act, Cap 133. Thus, I hold that the 1^st Respondent’s action for the relief sought by way of Originating Summons is without basis, and does not disclose a reasonable cause of action.

Limitation and its applicability to the contract of Transfer

[45] As I had held above, since the transaction between the parties is a contract, the provisions of the Limitation Act will apply. The 1^st Respondent claims that in 2011 the deceased Jagmohan wrote a letter undertaking to correct the error (RHC 71). This is denied by the Appellants. Subsequently, the 1^st Respondent states that he instructed his Solicitors to prepare a deed for signature of the deceased Jagmohan in 2013, and that he instituted action within the period of limitation.

[46] It is not in dispute that the Transfer had been duly registered on 8^th October, 1993, and was not challenged until this action was instituted on 26^th November 2014. Even if one were to assume that the 1^st Respondent had no reason to challenge the transfer earlier because Jagmohan during his lifetime received a percentage of profits commensurate and proportionate to the percentage of shares he held in Hazrat Building Company, and never challenged it himself; nevertheless, there is no reasonable explanation as to why there was hesitation in 2013 on the part of Jagmohan to have the ‘error’ on the Deed, if any, corrected promptly, particularly since the Respondent’s claim is that in 2011, Jagmohan gave a written undertaking to rectify the discrepancy in the share transfer that took place in 1993.

[47] In regard to the Appellant’s claim that the 1^st Respondent’s action is time-barred, the 1^st Respondent claims that his action comes within the exception contained in section 15 of the Limitation Act, which provides as follows:

“15. Where, in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the actiobased upon the frae fraud of the defendant or his agent or of any person through whom he claims or his agent; or

160;the right of action is concealed by the fraud of any such person; or

>

(c) the action is for relief thom the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered thud or the mistake, as the case may be, or could with reasonable diligence have discovered ired it:

Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against or set aside any transaction affecting, any property which-

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.” [Emphasis added].

[48] In the written submissions of the 1^st Respondent, he relies on sub-paragraph (c) of sub-section (ii) of section 15. However, sub- sections (i) and (ii) of the proviso to sub-paragraph (c) of section 15, are disabling provisions, and not enabling provisions. They therefore do not assist the 1^st Respondent’s case.

[49] In regard to the explanation attempted to explain delay in challenging the impugned Transfer, it is useful to reproduce relevant portions of the affidavit of the 1^st Respondent dated 6 July 2015.

“19)......that in 2011 the deceased Jagmohanlal Narsey “had in fact agreed to have the error regularized and in fact was aware of the Deed and had signed a letter in Gujarati language in December 2011. A copy of the said letter was sent to Messrs Sherani & Co on 11 May 2015 but there has been no response and it ought to be noted that instead of responding the 1^st Defendant has opted to file this summons to strike out the action on technical grounds. A copy of the letter written by the deceased in Guajarati language is annexed hereto marked as annexure ‘M1’.

20. The Deceased had in fact agreed to have the error regularized however before this was formalized, he died thus this matter was pending since then, The Deed was not executed as it would be improbable as the death meant all matters would be administered by the Estate thus court action was only possible after the probate was granted. The probate in this action was granted to the Defendants only on 22 May 2014 thereafter this action was filed”.

[50] The contents of these averments warrant examination in the light of the vacillating positions taken by the 1^st Respondent in respect of when he first ‘discovered the error’. If in fact a Deed had been prepared for signature by the late Jagmohan, a copy of same was not filed. If the so-called deed was ready, but could not be signed because Jagmohan died before it could be executed, then there is no explanation from the 1^st Respondent’s for not having intervened in the Probate action of the deceased Jagmohan. Instead, the position taken by the 1^st Respondent to the Appellant’s application to strike out the action of the 1^st Respondent is that he had to wait until Probate was issued. This is not an acceptable reason, and is therefore rejected.

[51] According to the 1^st Respondent, he had discovered the ‘error’ in 2011, and had discussed it with the deceased, who had allegedly then, given the 1^st Respondent a letter written in Gujarati (RHC 71), agreeing to have the ‘error regularized’. However, there is no explanation as to what happened between the 2011, (the time when the ‘error’ was discovered), and September 2013, the time when the 1^st Respondent’s Solicitors were instructed to communicate with the deceased Jagmohan’s Solicitors in Australia. The first email filed is dated 24 September 2013. (RHC 48), which is an email from a Solicitor named Chandrika Subramanyam, who has replied seeking further time to obtain a response from her client, Jagmohan.

[52] The orders sought by the 1^st Respondent were premised on an alleged mistake in the Register. However, a closer examination of the matter reveals that it is not merely a matter of correcting certain mistakes in the Register of Titles. The correction of the Register must be based on what is countenanced by law. The corrections cannot be done in a vacuum. In this case, the correction sought to be done will impact on the rights of persons whose Titles to property have been registered and given the protection of the Act. Such protection can be disturbed or affected only on the grounds provided for in law. In this case, the Deed of Transfer the contents of which are now challenged, is a contractual transfer of an interest in land, which is governed by the Land Transfer Act. In the circumstances, although the ‘correction’ sought to be made in the Register does not per se, amount to the enforcement of a contract (there being no contract between the 1^st and 2^nd Respondents), it is tantamount to challenging a contract, which is subject to the law of limitation relating to contract.

[53] This then requires consideration of the nature of the challenge to the contract. Since mistake is a ground for setting aside a contract, the mistake must be identified. The allegation made by the 1^st Respondent that the late Jagmohan was erroneously included as a Transferee, amounts to a challenge to the contents of the transfer. If, as in the case of Cundy v Lindsay (1878) 3 App Cas 458 HL, the 1^st Respondent is alleging mistaken identity, then the 1^st Respondent who is not the only transferee to the impugned Deed of Transfer is not entitled in law to challenge this unilaterally. Consequently, because it is a contract, it is covered by the provisions of section 4 of the Limitation Act the relevant portion of which provides as follows:

4.-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) actions founded >simple cone contract or on tort;

(b) actionsnforce a recognizancizance;

(c) actionsnforce an , where thre the submission is not by an instrument under seal;

(d(d) actions cover any sum recblrecble btue of any Act, oct, other than a penalty or forfeiture or sum by way of penalty or forfeitrfeiture: