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Maharaj v Narayan [1999] FJHC 173; HBC0432J.1999S (3 December 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 432 OF 1999

BETWEEN:

SATEN CHAND MAHARAJ
Plaintiff

AND:

JAI NARAYAN
1st Defendant

THE REGISTRAR OF TITLES
2nd Defendant

Counsel: Mr G. O’Driscoll for Plaintiff
Mr M. Raza for First Defendant

Hearing: 15th November 1999

Judgment: 3rd December 1999

JUDGMENT

This is an application to the Court in its “inherent jurisdiction” to restrain the Registrar of Titles (the Second Respondent) from removing Caveat No. 428178 against Certificate of Title No. 23031, and to order the First Respondent to give the Applicant Certificate of Title No. 23031 to enable him to register transfer of title. The application is made by Notice of Motion supported by the affidavit of the Applicant.

The affidavit of Saten Chand Maharaj (the Applicant) states that an agreement to sell the property (CT 23031) was initially made in 1989 between the First Respondent and one Jai Vilash. It states that Jai Vilash paid a total of $1450.00 towards the purchase price by September 1991 with a balance of $1,550.00 to be paid at monthly instalments of $80.00 plus interest.

At paragraph 8 the affidavit states that the Applicant then paid the First Respondent the sum of $13,000 as purchase price for the property with an agreement that Jai Vilash should pay the applicant $150.00 per month. An agreement was executed between the Applicant and the First Respondent on 23rd October 1996, and was varied on 18th July 1997.

The affidavit further states that the Applicant has applied for financing in respect of the property, to the Fiji National Provident Fund, and that the First Respondent has not given him the title for registration despite a Court Order of 23rd June 1999. He states that the caveat registered by him should remain until transfer of the property has been affected.

The application was heard in Chambers on 15th November 1999. The Registrar of Titles made no appearance nor made any submissions.

Mr G. O’Driscoll made submissions on the basis of the motion and affidavit. He submitted that the applicant had established a caveatable interest.

Mr M. Raza for the First Respondent opposed the application. He said that the copies of the Title and the Caveat annexed to the Applicant’s affidavit were not certified by the Registrar and were therefore inadmissible.

He said that the Applicant had failed to follow the specific statutory procedure laid down by the Land Transfer Act and that the application was misconceived. He asked for the application to be dismissed with costs.

This application purports to be for the extension of a caveat. The Land Transfer Act Cap 131 lays down specific procedures for the registration, removal and extension of caveats. Section 109 of the Act provides:

“(1) Upon the receipt of any caveat, the Registrar shall give notice thereof to the person against whose application to be registered as proprietor of, or as the case may be, to the registered proprietor against whose title to deal with, the land, estate or interest, the caveat has been lodged.

(2) Any such applicant or registered proprietor, or any other person having any registered estate or interest protected by the caveat, may, by summons, call upon the caveator to attend before the court to show cause why the caveat should not be removed, and the court on proof of service of the summons on the caveator or upon the person on whose behalf the caveat has been lodged and upon such evidence as the court may require, may make such order in the premises, either ex parte or otherwise as to the court seems just, and where any question of right or title requires to be determined, the proceedings shall be followed as nearly as may be in conformity with the rules of court in relation to civil causes.”

Section 110 of the Act provides:

“(1) Except in the case of a caveat lodged by the Registrar the caveatee or his agent may make application in writing to the Registrar to remove the caveat and thereupon the Registrar shall give twenty-one days notice in writing to the caveator requiring that the caveat be withdrawn and, after the lapse of twenty-one days from the date of service of such notice at the address mentioned in the caveat, the Registrar shall remove the caveat from the register.....

(3) The caveator may either before or after receiving notice from the Registrar apply by summons to the court for an order to extend the time beyond the twenty-one days mentioned in such notice .... and the court, upon proof that the caveatee has been duly served and upon such evidence as the court may require, may make such order .... as the court thinks fit.”

As counsel for the First Respondent correctly submitted, it is not disclosed whether the Registrar has issued the Applicant notice under section 110(1). If no such notice has been served, this application is clearly premature. If such notice has been served, the Applicant should apply by way of summons for an order to extend the caveat.

Parliament has seen fit to lay down specific procedures for the extension of caveats. Furthermore, the Registrar of Titles is given wide powers under the Land Transfer Act, which in my opinion should not be undermined by the granting of premature applications by the High Court.

Since the First Respondent’s objection is a procedural one which I have upheld, it is unnecessary for the Court to consider whether or not the Applicant has a caveatable interest which should be protected by an extension of the caveat.

I dismiss the application. The Applicant must pay the First Respondent’s costs to be taxed if not agreed.

One last matter. I find the Registrar of Titles absence in these proceedings a matter of concern. The papers were served on him on 20th September 1999, but he made no appearance on either the 12th of October 1999, or on 15th November 1999. The Court would have been assisted by his submissions and I consider his inability/refusal to appear, an act of discourtesy to the Court. I hope that remedial action will be taken by the appropriate authority to ensure that the Registrar is represented in all future cases where he is a party.

Nazhat Shameem
JUDGE

At Suva
24th November 1999