IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 351 OF 2001

Between:

RAJESH PRAKASH SHARMA
Plaintiff

and

THE REGISTRAR OF TITLES
THE ATTORNEY GENERAL OF FIJI
Defendants

and

SHIU NARAYAN f/n Ram Govind
AGRAWALA DEVELOPMENT LIMITED
Third Parties

Mr. R. Prakash for the Plaintiff
Ms. M. Rakuita for the Defendants

DECISION

By Writ of Summons dated 10 August 2001 the plaintiff claims against the defendants the following relief:

(a)	Damages

(b)	An Order that the Defendants do obtain access to that part of Certificate of Title No. 13177 which is now separated from the rest of Certificate of Title No. 13177 by the re-alignment of Waikalou creek.

(c)	Any further or other relief

An Acknowledgement of Service was on 14 September 2001 filed by the defendants intending to contest the proceedings.

In default of filing a Statement of Defence, the plaintiff now by summons dated 19 December 2001 seeks relief as stated hereabove.

Background facts

The plaintiff alleges that the defendants have defaulted in filing a Statement of Defence to this action despite time having been given to do so.

In support of this application for the said relief the plaintiff relies upon his Statement of Claim and his own affidavit in support. He also relies upon affidavit of Pankaj Bamola, a surveyor filed 19 December 2001. 

On 11 February 2002 when counsel for the defendants appeared an order was made to file an affidavit in reply to plaintiff’s said affidavit.

For the defendants, Ajay Singh, the Administrative Officer (Litigation) in the Office of the Solicitor-General filed an affidavit in Reply on 1 March 2002 and the matter was adjourned for argument on 21 March 2002.

On the said date (1 March 2002) the defendants filed a Third Party Notice pursuant to Order 16 Rule 1(2) prior to issue of Defence. This notice was served on 4 March and an Affidavit of Service filed 6 May 2002. On 22 May a praecipe was lodged and Judgment in Default of filing an Acknowledgment of Service or Notice of Intention against the second named Third party entered on 19 June 2002 by the Court. The Judgment stated:

No notice of intention to defend having been given nor any acknowledgment of service being filed by the Second-Named Third Party herein, to the claim by the Second-Named Defendants, it is this day adjudged that there be an interlocutory judgment against the Second-Named Third Party for damages to be assessed and costs.

The said Summons of 19 December 2001 was heard on 21 March 2002 when after oral submissions an order was made for filing of written submissions. The last of the submissions were filed by Mr. Prakash on 1 November 2002.

In his affidavit Mr. Singh explained the reasons for the delay in filing their defence to the plaintiff’s claim. He stated that they wanted to retrieve all information available, analyse them and then to decide whether there was a defence to the claim rather than just placing on record a defence denying liability and damages and later seek amendments. They say that they are now ready with their defence and he annexed a ‘proposed defence’ to his said affidavit.

The plaintiff’s main complaint in this case is that re-alignment of a creek running through the plaintiff’s land has allegedly caused the plaintiff to suffer damage.

The defendants say, inter alia, that the re-alignment was done by the ‘Navua Drainage Board under the Drainage Act (Cap. 143) and was done in furtherance of the aims of the Act’. Hence they say that the wrong party has been sued. It is the Drainage Board for the Navua area which should have been sued. They say that the plaintiff’s action is misconceived as they did file on ‘acknowledgement of service’ on 11 September 2001 and they did say that ‘the defendants do intend to contest the proceedings’ as required under Or.13 r.6 of The High Court Rules 1988.

The defendants sought time to file Statement of Defence several times. In their letter of 19 November 2001 they asked time till 28 November 2001 to do so. Since this was not done the plaintiff filed the present summons on 19 December 2001.

The plaintiff engaged a surveyor Mr. Pankaj Bamola to subdivide the land after the purchase. The surveyor told him that the land on the ground was in fact divided into two with Waikalou Creek coming in between it. He said that the Creek has been realigned by some Authority/Department in Government. He said that the land had been split into two pieces and the area may have changed. Attached to the plaintiff’s affidavit sworn 13 December 2001 is a copy of diagram (Annexure E) showing the split in the land. He says that now the straightened creek means that part of his land which is ‘shaded’ is without any lane or vehicular access at all and is across the creek’.

The defendants do not deny that the land is in two pieces separated by the creek and not as shown on the Title. They accept that realigned work was done by the Government which has led to part of the land being without access.

Plaintiff’s submission

The plaintiff’s counsel submits that there is nothing in the proposed defence or the affidavit which show a credible defence to the issue raised in the Statement of Claim. Mr. Prakash submits that the matters raised by the defendants in the Third Party application also show that the plaintiff’s claim is justified. It is plain therefore that the defendants are aware that there was a need to have a new survey plan registered if any change in river course took place. The defendants were under a duty to ensure that the necessary changes were to be registered but failed to carry out their duty.

Mr. Prakash cited authorities and sections of the Land Transfer Act, Cap. 131 which entitle the plaintiff to his rights under the Torrens system.

He further submitted, inter alia, that despite what the Title shows, on the ground the plaintiff’s sub-division has been severely compromised and he is entitled to a remedy against the defendants. He has in effect lost the land on the other side of the Waikalou Creek.

Defendants’ submission

In his affidavit in reply to the affidavit of the plaintiff’s affidavit Mr. A. Singh stated, inter alia, there was delay in filing Statement of Defence and he gave reason for it. Mr. Singh says that if the application is refused, the defendants will be highly prejudiced because they have a good defence, this case will determine an important question in relation to the onus of registration of easements in carrying out drainage on a freehold title and the State will have to unnecessarily pay damages or compensation which it is not liable to pay.

In his said affidavit Mr. Singh has attached a proposed copy of the Statement of Defence of the 1st and 2nd defendants.

Ms. Rakuita, counsel for the defendants, filed a lengthy submission opposing the plaintiff’s summons on the grounds stated therein. She says, inter alia, that the wrong party has been sued and it should have been Navua Drainage Board.

Counsel has raised other defences, such as, that the defendants do not have a duty to register the re-alignment by virtue of the Land Transfer Act or the Drainage Act. Further that it was the duty of the plaintiff’s predecessor in title to do all things necessary to protect his title in the freehold land concerned, thus the issue of the Third-Party proceedings against them and the judgment obtained against the second-named Third Party.

Miss Rakuita submits that for reasons given in her submissions the defendants be given the opportunity to defend this case and thus develop the law in this area. The defendants want liberty to file Statement of Defence.

Consideration of the issue

The plaintiff purchased from Agrawala Development Limited C.T. No. 13177 containing 8 acres 7.9 p (the ‘land’) for good consideration on 27 November 1997. The transfer was registered on 23 January 1998. The land was purchased for the purposes of subdivision and re-sale.

Before purchasing the plaintiff carried out a search of the said Certificate of Title and paid a search fee to the first defendant (D1). He paid reliance on the said search.

The search revealed that the C.T. is Lot 1 on Deposited Plan No. 3292 being Block 2 Deuba (part of) and showed the land as one composite Lot comprising 8 acres 7.9 perches with the land having an access to Queen’s Road.

I have already outlined hereabove the circumstances which gave rise to this action which was commenced on 13 August 2001 by way of writ of summons. But because the defendants failed to file a Statement of Defence, the plaintiff has made the present application seeking orders as in the writ of summons.

However, rather belatedly the defendants have disclosed to Court that they have a good defence by annexing a proposed ‘Statement of Defence’ in their affidavit in response to the plaintiff’s affidavit.

I have given careful consideration to the very helpful submissions made by both counsel.

The issue before me is actually whether in the light of the facts and the arguments put forward and in law I ought to let the defendants in to defend or not.

There is no doubt that there has been a considerable delay on the part of the defendants in complying with the High Court Rules. On the other hand, Ms. Rakuita for the defendants has in her very comprehensive written submissions raised numerous defences which appear to have considerable merit in them. In fact she has raised a number of points of law which cannot be resolved without the trial of the action in open Court necessitating the adducing of oral evidence.

The defendants’ application in effect is for leave to defend. The principle is that leave must be given unless it is clear that that there is no real substantial question to be tried [Codd v Delap (1905), 92 L.T. 510 H.L]; and further that there is no dispute as to facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment (Jones v Stone [1894] A.C. 122).

In this case the defendants have raised substantial questions of fact which ought to be tried and also difficult questions of law have been raised. In these circumstances leave to defend should	 be given (Saw v Hakim, 5 T.L.R. 72, Electric etc. Corp v Thomson Houston etc Co. 10 T.L.R. 103)

There is a dispute as to the description particularly the area stated in the Title on which the claim is based. In such a case leave ought to be given (Bowes v Caustic Soda etc Synd, 9 T.L.R 328)

Although the plaintiff’s application is not under Order 14 of the High Court Rules, 1988 it is, as Ms. Rakuita submits, ‘a disguised form of a summary judgment’ and I agree.

She submitted that this application should fail for the following reasons:

a)	Order 14 Rule 12 expressly prohibits application for Summary Judgment against State. Rule 12 states:

“Nothing in the foregoing provisions of this Order shall apply or be construed in derogation of, or in any way affect, the provisions contained in Order 77 in so far as they apply in relation to proceedings against the State.”

Order 77 rule 5(1) specifically prohibits Summary Judgment against the State. The rule states:

“No application against the State shall be made under Order 14, rule 1, or Order 86, rule 1, in any proceedings against the State nor Order 14, rule 5 in any proceedings by the State.”

In this case, where it is an application akin to summary judgment under Order 14, I refer to the following Notes to Or.14 or 5 in the Supreme Court Annual Practice 1958 p263 which is apt and ought to be taken into consideration:

“The power to give summary judgment under Order 14 is ‘intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment, and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay’ (Jones v Stone [1894] A.C. 122). As a general principle, where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend (Ward v Plumbley, 6 T.L.R. 198).

Conclusion

In the outcome, for the above reasons, on the authorities, in the exercise of Court’s discretion and applying the principles applicable to an application of this nature the defendants ought to be let in to defend this action.

The defendants have shown facts which would entitle them to defend and this is in the discretion of the Court. In deciding whether the defence set up is a real defence or not the Court looks at all the circumstances of the case (per Brown L.J, Blaiberg v Abrams, 77 L.T.J 55 C.A.)

The plaintiff’s application is therefore refused. Because the defendants have not filed Statement of Defence I award costs against them in the sum of $300.00 payable by the defendants. It is ordered that the defendants file their Statement of Defence within 14 days and the action to take its normal course thereafter.

D. Pathik
Judge

At Suva
31 October 2003