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Lata v Registrar of Titles [2005] FJHC 422; HBC0500j.2005S (16 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0500J OF 2005S

BETWEEN:

KIRAN LATA
(f/n Bhikham) of 264 Mead
Road, Nabua, Domestic Duties, the
Administratrix of the Estate of Arvind Kumar
(f/n Ram Jatan aka Ram Jattan), deceased, intestate.
PLAINTIFF

AND:

REGISTRAR OF TITLES
DEFENDANT

Counsel for the Plaintiff: M.S. Arjun: Scott, Grahame & Co.
Counsel for the Defendant: Ms M. Rakuita: Attorney-General’s Chambers

Date of Judgment: 16. 11. 2005
Time of Judgment: 9.30 a.m.

EXTEMPORE JUDGMENT

It is clear that the provisions of section 164 of the Land Transfer Act (Cap. 131) gives the High Court jurisdiction to hear any person aggrieved by an order or decision of the Registrar of Titles, and upon hearing the parties, the Court may make such orders as it deems appropriate.

The facts of this case are set out in the affidavit in support of Plaintiff’s motion. The executors of an estate had in May 1996 executed the transfer of two properties (CTs 11032 and 11633) in accordance with the Terms of a Deed of Family Arrangement. The Transfer is engrossed on a A3 size document which was stamped in September 1997. The size of the document would then have been accepted by the Registrar as complying with his requirements under the Regulation 2 (1) of the Land Transfer Regulations. The document could not be registered straight away as the title deed of one of the properties had been lost and the provisional title was only issued on 11 May 2000. When however the document was lodged for registration in June 2000, a caveat by the City Council against the properties for non payment of city rates, prevented registration. In the meantime two of the beneficiaries have died. The Caveat was finally withdrawn on 15 April 2005, and the Transfer document was re-lodged for registration on 19 April, 2005. It was refused registration by the Registrar of Titles. In his letter to the solicitors for the Plaintiff of 16 September, 2005, the Registrar explained that A3 size document was no longer accepted as A4 size had replaced it in 1999 through the Land Transfer (Amendment) Regulations (L/N 119/99). There had been two grace periods since then, but have expired. The Registrar informed that he had no powers to now accept the A3 size document.

It is under these circumstances that the Plaintiff has applied to the Court under S.164 of the Act.

Section 164 bestows a special jurisdiction on the High Court to entertain an application from a person who is aggrieved by the refusal of the Registrar to register any instrument. The section states:

“164 – (1) If, upon the application of any person interested to have any instrument registered, or to have any instrument, instrument of title, foreclosure order, vesting order or other document issued under the provisions of this Act, or to dispense with the production of any instrument of title, or to have any act or thing done or performed by the Registrar, which the Registrar refuses so to do, such person interested may require the Registrar to state in writing the grounds of his refusal and such person may, if he thinks fit, at his own cost, summon the Registrar to appear before the court to substantiate and uphold the grounds of his refusal, such summons to be issued out of the court and to be served upon the Registrar six clear days at least before the day appointed for hearing the complaint of such person.

(2) Upon the hearing of any complaint under the provisions of this section, the Registrar shall have the right of reply and the court may, if any question of fact is involved, direct an issue to be tried to decide such fact, and thereafter the court shall make such order in the premises as the circumstances of the case require and the Registrar shall obey such order, and all expenses attendant upon any such proceedings shall be borne and paid by the person preferring such complaint unless the court orders the same to be paid out of the Consolidated Fund.”

The Registrar’s argument is that if he were to accept the document, he would be acting in breach of the Regulations. Furthermore he argues, section 35 prescribes precisely the nature and scope of his legal responsibilities. Section 35 stipulates:

“ 25 (1) The Registrar shall not register any instrument purporting to transfer or otherwise to deal with or affect any estate or interest in land subject to the provisions of this Act, except in the manner provided in this Act or unless such instrument is in the form prescribed under the provisions of this Act.

(2) The Registrar shall have the power to reject any instrument that he considers unfit for registration.”

In addition the Registrar referred to Paparua County v. District Land Register [1968] NZLR 1017 which supports the principle that once the Registrar is satisfied that an instrument is contrary to a law or regulation in force, then it cannot be accepted for registration.

I am in total agreement with the Registrar’s submission, except for the fact that the “review” of his decision that is available to an aggrieved party under a S. 164 procedure, is in fact in total conformity with the provisions of section 35 and/or his obligations under the Regulations. The Registrar, under section 35 is required to register an instrument only in accordance with the provisions of the Act, which includes section 164. An order emanating from a section 164 application if at variance with the provisions of the Regulations does not mean that the Registrar, if he implements it is in breach of the law. The presumption is that he is acting in accordance with the provisions of the Act.

In this instance there is no denying that the size of the document in question does not comply with the Regulations. There are however extenuating circumstances. The document had been prepared and executed at the time when A3 size documents were acceptable. The lost title deed, the caveat, the death of two beneficiaries and most importantly, the difficulties in contacting the executors of the estate who had long ago moved abroad, are in my view adequate and justifiable ground to entertain the Plaintiff’s S.164 application.

I am, in the end, satisfied that in the circumstances of this case, the Plaintiff’s motion has merit and his application therefore succeeds.

Order is made for the Registrar to accept and register the Transfer engrossed on an A3 size document dated 28 May 1996, and originally stamped on 23 September, 1997 and which purported to convey Certificates of Titles Nos. 11032 and 11633 from Ravindra Pratap Singh (s/o Chandra Ban Singh), and Paras Ram (s/o Tulsi Dass) as executors and trustees of the estate of Ram Rattan aka Ram Jatan (f/n Ori) to Dukh Dei aka Dharam Dei (d/o Ganpat) Praveen Kumar and Arvind Kumar (sons of Ram Jattan)

I make no orders as to costs.

F. Jitoko
JUDGE

At Suva
16 November 2005