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

Wehrenberg v The State [2004] FJHC 414; HBM0009.2004L (29 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM0009 OF 2004L

BETWEEN:

FRED WEHRENBERG
Plaintiff

AND:

THE STATE
Defendant

Plaintiff in Person
Counsel for the Defendant: Ms. S. Tabaiwalu

Date of Hearing & Judgement: 29 April 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Notice of Motion filed by the applicant. In the Notice of Motion the applicant seeks three declarations -

1. A declaration that the applicant and his wife are the joint owners of two freehold beach frontage properties CT16026 and CT 26830 with the western boundary bounded by high watermark;
   
2. A declaration that the applicant has no legal obligation to give access to the public through his freehold properties;
   
3. A declaration that the applicant has governmental approvals to exclude the public from his freehold beach frontage properties for security reasons.
   

In addition, an order is sought restraining the Rakiraki Magistrate from pursuing a land matter, when in fact it is a simple case of larceny which is before him and lastly the applicant seeks costs of the action.

In support of the Notice of Motion the applicant relies upon an affidavit sworn by him on 20^th April 2004 and a supplementary affidavit sworn by him on 28^th April 2004.

It is trite to say that the Evidence Act and Principles of Evidence set down various ways in which matters might be proved with respect to the proof of ownership of land. Such matters can be proved by production to the court of an up-to-date copy of the relevant certificate of title certified by the appropriate custodian of the records.

In this matter, the only evidence with respect to the ownership of the land and the details of the land owned are photocopies of what purport to be the relevant certificates of title. The date of those certificates of title of course is not known apart from the date that they bear that being the date on which they issued, which is respectively 20^th March 1991 and 28^th October 1975 which last certificate of title bears endorsement dated 4^th July 1988 of the applicant and his wife becoming the owners of the property. Whether these are the current certificates of title with respect to the land is not known to the court.

The registers held by the appropriate custodian of the records is, as I have said evidence of ownership of land and unless those registers are challenged in some way there seems to be no point in the court making a declaration that the applicant and his wife or for that matter any other person is in fact the owner of any particular parcel of land.

The register under the Torrens system, that is, the system of land ownership that applies in this country is the paramount authority for the ownership of land.

So far as the boundaries of the land are concerned, the boundaries of land would normally be determined by survey. The declaration seeks the court to declare that the western boundary is bounded by high watermark. That fact would more likely than not appear from the certificate of title and even the photocopy annexed to the affidavit of the applicant would appear to show that to be the case. However, as I have said that those copy documents are not sufficient to enable the court to make a declaration in that regard. And again, it is a declaration that it is perhaps quite unnecessary as the register is the authority for the ownership and boundaries of land.

The second declaration sought is that the applicant has no legal obligation to give access to the public through his freehold properties. The issue would appear to be as to whether or not there is a reserve of some type over the applicant’s land which gives some rights to the public at large.

I have already referred to the uncertified copy documents attached to the affidavit and the inability of the court to place weight on those documents. Whether there is or is not a reserve over the applicant’s land, the boundaries of such reserve and the terms of it are matters that the court is unable to determine due to the paucity of evidence before the court.

The applicant seeks to rely on some copy documents being letters and apparent advices written in some instances by persons unsigned. Letters written to people other than the applicant are a mixture of hearsay documents, which are insufficient to enable the court to form any opinion as to the existence and or terms of any reserve that may or may not affect the applicant’s property.

The third declaration sought is that the applicant has government approvals to exclude the public from his freehold beach frontage properties for security reasons.

The applicant has annexed to his affidavit approvals obtained from the Ra Local Authority. The relevant approval appears to be an approval granted pursuant to an application for permission to erect, alter, rebuild, add to or repair a building. In this application, the applicant sought to erect a fence (concrete rock wall) 102 meters long.

There is attached to the application a plan showing the location of the proposed fence and its method of construction. Whilst again the document is a photocopy document at least it is addressed to the applicant and it bears or purport to bear stamps indicating that it was approved by the Ra Rural Local Authority. That being so, the applicant has an approval to carryout the works that are described in the application, that is, the erection of the fence shown on the sketch plan being a concrete rock wall, a 102 metres long, 300 metres wide and 1.2 metres high.

In submissions, the applicant indicates that he has not in fact constructed this works due to financial constrains. There is nothing before the court to evidence that the applicant has any governmental approval to exclude the public from his freehold beach frontage properties and secondly nothing to show that there is such an approval for security reasons.

The applicant then seeks an order restraining the Rakiraki Magistrate. I understand from the submissions made that there are currently proceedings before the Rakiraki Magistrate Court with respect to an offence of larceny. The applicant is not a party to those proceedings but those proceedings relate to the applicant’s land.

Whilst the applicant might be aggrieved that the prosecuting authority, that is, the Director of Public Prosecutions, has seen fit not to call him as a witness in those proceedings, that of course is entirely a matter for the Director of Public Prosecutions and not something with which this court can interfere.

The matters that the Learned Magistrate may or may not take into account in determining or considering the prosecution that is before him is a matter for the magistrate and not a matter for this court. If it were that the applicant sought to restrain the magistrate from hearing the matter then to enable the court to give any consideration to such an application, it would have to be before the court in the form seeking relief by way of the prerogative writs. No such application is currently before the court and that is not to say that if it were, it would receive favourable consideration in any event.

It would be quite inappropriate for this court, in the current proceedings, to make any order restraining the Learned Magistrate in the manner in which he should conduct the hearing of the proceedings which are currently before him. There is no evidence before this court as to the nature of those proceedings the evidence or the evidence intended to be excluded by the order that is sought.

For the reasons that I have stated, I am of the opinion that the court is unable to grant the declarations that are sought and I also decline, again for the reasons stated, to make the order that is sought in the Notice of Motion and accordingly the Notice of Motion is dismissed. I am very tempted to make an order for costs. I think it perhaps inappropriate in the circumstances and I note that no application in that regard has been made by the respondent.

I acknowledge the difficulties that the applicant portrayed to the court with respect to the issues at large but regrettably the Notice of Motion before the court is not a solution to those problems.

I make no orders as to costs.

JOHN CONNORS
JUDGE

AT LAUTOKA
29 APRIL 2004