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Singh v Attorney General [2007] FJHC 180; Civil Action HBC 277 of 2005 (31 October 2007)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTON NO.: HBC 277 OF 2005

BETWEEN

VEER SASHI MANU SINGH
Plaintiff

AND

ATTORNEY GENERAL
Defendant

JUDGMENT

Background

1. The plaintiff has a brother-in-law Kamil Singh. Kamil is the son of Dhanraji Singh who died on rhw 1^st of September 1980. Dhanraji Singh left a Will which in part directed the sole executor and trustee of his estate to maintain support and suitably provide for his widow Dhanraji Singh during her life time. The land which is the subject if this caveat dispute was otherwise left to Kamil. The valuable property was in the District of Nadroga more particularly desacribed in Certificate of Title No. 26917.
2. Dhanraji Singh on now some 80 years old lives in Australia outside Brisbane.
3. The plaintiff's brother-in-law as executor and trustee was found to be in breach of his trustee duties as he failed to provide his mother any benefits from her life interest in her interest in her husband's estate. This finding was initially made by his honour Mr. Justice Scott in his Lordship's Judgment of the 11^th February 2003 where his honour found that Mr. Kamil Singh had persistently failed to provide for his mother as required by the terms of the Will.
4. On the 14^th of May 2003 to cure this failure the learned Judge made orders for the sale of the property by public tender under directions of the High Court of Fiji.
5. On the 13rh of June 2003 when the matter was next called the plaintiff's lawyer Dr. Sahu Khan appeared for Kamil and made applications to set aside the learned Judge's decisions of the 11^th of February and 14^th of May 2003.
6. Those applications were heard on the 25^th of July 2003 with a written decision being delivered on the 31^st July of that year dismissing all the applications by Kamil Singh.
7. Thereafter the same lawyer acting for Kamil Singh applied to the Fiji Court of Appeal for a stay order against Justice Scott's decision. Mr. Justice Smeilie refuse his application in a decision dated the 7^th of November 2003.
8. Subsequently the full Fiji Court of Appeal on the 23^rd of September 2004alsodismisse the substantive appear thus clearing the way for the sale of this valuable property by tender in accordance with Justice Scott's original order. More importantly the Court of Appeal's decision gave the widow some hope that her remaining years would see her properly supported as envisioned by her late husband in his Will. That hope was short lived.

The application to the Land Tribunal

9. As part of the proceeding I called for the copy records of the Agricultural Tribunal at Lautoka under reference No. WD7 of 2003.
10. Those records disclose that shortly after Justice Scott's original finding against the plaintiff's brother-in-law in May of 2003 the plaintiff represented by the same law firm filed and action under the Agricultural Landlord and Tenant Act, Cap. 270 for reference to the Tribunal seeking recognition of an alleged instrument of tenancy over the very land that Scott J. had just made orders for sale.
11. I find that fact was never disclosed to the court by Dr. Sahu Khan when acting for Kamil Singh on the 13^th of June 2003. That was when the Doctor appeared and mad application to set aside the honourable Justice Scott's decisions.
12. I find the same Dr. Sahu Khan did not disclose to the Hon. Justice Scott at hearing on the 25^th July 2003 that his firm had taken an action in the Agricultural Tribunal at Lautoka seeking to declare his brother-in-law a tenant on the subject land.
13. I find then at the same Dr. Sahu Khan when he applied to the Fiji Court of Appeal and appeared before Mr. Justice Smellie did not disclose the application his law firm made to declare his client's brother-in-law a tenant of the subject property.
14. I find that the same Dr. Sahu Khan did not disclose to the full Fiji Court of Appeal in the subsequent hearing that his firm had supported the application by his client's brother-in-law to be declared a tenant of the subject property.
15. Most importantly I find that no where in the records of the Agricultural Tribunal Western Division under Reference No. WD007/03 was it disclosed to the Tribunal that the land in Certificate of Title 26917 was the subject of sale orders by Scott J.
16. I find the obligation to make such a disclosure under the Agricultural Landlord and Tenant Act, Cap. 270 is described in the application form itself. The respondent (who is the plaintiff's brother-in-law) was obliged to set out any facts which were incompatible with the contract of tenancy claimed in paragraph 21. And in paragraph 22 any facts relevant to consent which were incomparable with the relief claimed.

The Application

17. This then is an application by the Attorney-General to discharge Caveat No. 526538 registered against Certificate of Title 26917. The caveat was raised by the plaintiff in these circumstances it is said to support the plaintiff's Agricultural Tenancy of his brother-in-law's land.
18. On the 29^th of September 2005 Justice Finnigan of the High Court of Fiji at Lautoka Civil Action No. 277 of 2005 ordered that this Caveat No. 526538 registered on CT No. 26917 remain in place. This was the caveat registered by the plaintiff days after Scott J's original sale order on the 10^th of June 2003 in anticipation of an instrument of tenancy being granted by the Western Agricultural Tribunal.
19. It is an irresistible inference that this application before the Western Agricultural Tribunal made as it was by the same firm if solicitors then contesting its orders for sale made by Justice Scott was made with the sole object of trusting those High Court orders for sale of the subject land.
20. I found that when Justice Finnigan extended this caveat in his order of the 29^th of September 2005 he was not provided with full disclosure of the material facts concerning the background and history of this matter.
21. The subject land is now under agreement for sale. The Chief Registrar of the High Court acting on my orders sought to remove Caveat No. 526538 from Certificate of Title 26917.
22. I accept the submissions of counsel for the Attorney-General that caveats are by their nature and use similar to applications for interim relief. Caveats are often brought upon the basis of an equitable right to an interest in land that would otherwise be unprotected. Caveats are frequently bought and continued on an ex-parté basis.
23. For those reasons I find that full disclosure of material facts about caveat applications must be made and nothing suppressed. This id for the reason that in such ex-parté applications utmost good faith must be observed.
24. In this case the close inter-relationship of the plaintiff and his brother-in-law over the land. The representation of these two parties is by the same firm of solicitors. The appearance for the plaintiff in both proceedings by Br. Sahu Khan or his firm. The findings of Justice Scott supporting the widow's interests are all facts that placed a duty upon Dr. Sahu Khan to fully disclose all dealings with this property when he appeared in support or had a member of his staff appear in support of the various applications concerned with the subject land over the last four (4) years.
25. I find that Dr. Sahu Khan failed in his obligation failed to disclose material facts about the dealing and applications involved with the land to
    • Justice Scott in the High Court Proceedings,
    • The Agricultural Tribunal Western Division Office Mr. Lomaloma and
    • The Court of Appeal about these material facts. I find he breached his duty to disclose those material facts.
26. Section 110 of the Land Transfer Act Cap. 131 provides the power to remove a caveat. The Registrar must remove a caveat after a lapse of 21 days provided no ex-parté court order is obtained for its extension.
27. Section 168 of the same act relevantly provides:

"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 endorsement offering any such land, estate or interest the court may by decree or order direct the Registrar to cancel, correct, substitute or 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 of order of such court".

28. I accept the submissons of learned counsel for the Attorney-General that accordingly this court has special powers under this section to give directions to the Registrar to remove caveats to both provide equitable relied and facilitate the implementation of any order of the court.

Relief

29. Accordingly for the reasons expressed for the reasons expresses in this judgment to give effect to the subsisting judgements of his honour Justice Scott that were upheld by the full Court of Appeal in Civil Appeal No. ABU0041 of 2003S under Judgment dated Friday the 7^th November 2003, I order that Caveat No. 415427 be removed from Certificate of Title No. 26917 forthwith.
30. Further, in respect of this action No. 227 of 2005 I exercise my revisionary jurisdiction in respect of the orders of the Agricultural Tribunal at Lautoka under reference No. WD7 of 2003. I am satisfied that had the Tribunal been advised of the hull circumstances surrounding the various court orders, dealings and claims over the Certificate of Title it would not have issues the consent order sought.
31. Accordingly the consent order of the Tribunal dated the 14^th of October 2003 is quashed.
32. Further, I direct the Registrar under my powers contained in Section 168 of the Land Transfer Act, Cap. 131 to cancel Caveat No. 526538 registered on CT 26917 and remove it from the Certificate of Title forthwith.
33. I find there is no valid ground to support the caveat in Civil Action No. 277 of 2005 registered in the High Court of Fiji Western Division at Lautoka. I find for the defendant and I declare that the plaintiff is not entitled to have Caveat No. 526538 remain on Certificate of Title 26917 until the expiry of the tenancy issued under the Instrument of Tenancy.
34. I refuse to make the other declarations sought.
35. This is a matter upon which the State is entitled to indemnity costs from the plaintiff. Those costs are to be prepared and taxed by the Master.
    

GERARD WINTER
JUDGE

At Suva
Wednesday 31^st October, 2007

Solicitors
Messers Sahu Khan & Sahu Khan, Barristers & Solicitors, Ba – for the Plaintiff
Office of the Attorney-General, Suva – for the Defendant