High Court of Fiji

[31] Basing his argument on indefeasibility of title the appellant then submito this Court that Singh, J.h, J. in effect held that the appellant must go behind the Register kept at the Office of the Registrar of Titles and sue his predecessor in title for the Register not being correct and not reflecting what is on the ground. It was submitted to us that under the Land Transfer Act a duty had been placed upon the state to keep the Register accurate and this was not dealt with in the judgment.

[32] We cannot agree with this submission. To do so would involve reading in to the various sections of the Act to which reference has already been made, words which are simply not there, a course of which the courts have consistently disapproved............

[34] We pass finally to the alleged breach of statutory duty. We reject this briefly because we can find no evidence, nor did the Learned Judge, of any provision which shows any proximity between the Registrar of Titles and the Appellant in supporting a claim for negligence. This is because neither the appellant or anybody else lodged anything with the Registrar to show the re-alignment."

In the judgment of D. PATHIK, JA., his Lordship agreeing with their Lordships BYRNE, J.A and GOUNDAR, J.A stated thus;

"[12] I might add that it is the accepted conveyancing practice to, apart from doing a proper search of the land, one should go a step further and ascertain from the municipal council whether there is a Town Planning Scheme which is likely to affect the land being purchased. Had this been done by the appellant or his advisers he would have learnt a bit more about the land he was buying. What was preventing him from inspecting the land himself rather than relying on the Register kept at the office of Registrar of Titles? He himself is to be blamed for his negligence for the damage which he has allegedly suffered. ..........

[14] The registration which involves entering a memorial on the title is intended to be read by people other than the person who entered it, and it will normally be accepted as accurate what is on the title. [South Pacific Property Law by Sue Forran & Don Paterson].

[15] All that the Registrar of Titles does or is required by law to do is to registrar whatever document is lodged with him under the law. He is not required to go around inspecting the land for any changes to the contour or area of the land, etc. The Registrar's function is clearly set out in the Land Transfer Act and he cannot go outside it in the performance of his duty.

[16] As for drainage work carried out on the land, there is no statutory requirement that there ought to be an entry on the title. It is not an 'interest' which is registered under either the Land Transfer Act or the Drainage Act, cap 143.

[17] It is not the Registrar who is liable to answer for the dire straits the appellant is in for it is due to his own neglect to ascertain the exact condition of the land.......

[20] Under the Torrens m registrgistration is everything and registration cures any defect in the instrument registered.......

[26] In Fiji the Torrens Sys160; has stos stoo testime. It is a syst system of registration of land which was was introduced in South Australia by Robert Richard Torrens [born in Cork814]. He was educated at Trinity College Dublin and arrivedrived in South Australia in December 1840. He became Registrar General in 1852 and soon began his land title registration crusade.

[27] To my knowledge there has never been any suggestion, unlike in Australia, for the need for reform of the system. I also consider there is no need for one as it has worked perfectly well."

12. In RIGAMOTO vs. NBF ASSET MANAGEMENT BANK CIVIL APPEAL NO.ABU 0002 OF 2009 (FCA), agreeing with the judgment of Hon. Justice Sriskandarajah Sundaram, JA (quoting and following the ASSETS Co LTD V. MERE ROIHI case), William Marshall, JA stated thus;
    

" 3. I accept that in certain circumstances registration cannot be avoided as against the transferee of the land. But the transferee must have given full value for the land and must in no way be implicated in or part of any alleged fraudulent practise. Here Ranjit Prasad and Rajesh Chand were necessary actors in the fraudulent scheme. They did not give any consideration for the transfer of the land to them. Whether they fully understood what was going on in my view is irrelevant in this context. The transfer and registration is the direct result of their participation in a fraudulent scheme. That is enough to engage the section of the land transfer registration statute which provides that registration obtained by fraud can be undone without more." (underlining mine).

13. In RAJAI SINGH VS. REGISTRAR OF TITLES HBC 108 OF 2010L Inoke J settled and decided a particularly relevant issue thus;
    

"[8] The issue is therefore whether the registration of the court orders should remain even though they were lodged subsequent to the transfer to the current registered proprietor.

DETERMINATION OF THE ISSUE;

[9]It is true that registration is in order of lodgment. But allowing the registration of the court order to remain when it never had any binding effect on the registered proprietor does not give a true picture of the dealings on the land. Further, it has the effect of restraining further dealings subsequently because it operates as if it were a caveat: s 104(2) of the Land Transfer Act.

[10]Also, I think the order should not have been registered in the first place because the only basis on which the order could have been registered was through Reshmi Lata as the registered proprietor. When it came to be registered, the land was no longer registered to her. I think the registrar of titles made an error. Section 104 of the Act which deals with the registration of judgments and orders on certificates of title, by necessity, only allows the registrar of titles to register a judgment if the judgment affects "an estate or interest" in the subject land. As the judgment in this case did not, the registrar had no powers to register it in the first place. Such entries on the title should be cancelled forthwith." (underlining mine)

The order that was registered was an order by PHILLIPS J in HBC 381 of 2007 restraining Reshmi Lata from selling the property, which order the Registrar proceeded to register after the transfer from Resmi Lata to the new owner was registered.

14. In the above Rajai Singh case Inoke J, appears to prescribe that the Registrar ought to decide to quote; "if the judgment affects an estate or interest in the subject land"; before the judgment is registered under section 104, in that folio in respect of that land.
    
15. In respect of the current application the judgment registered was a judgment in a sum of money. Section 104 begins by contemplating such a "judgment" in stating; "104.-(1) No judgment, decree or order for the payment of money, the sale of land or a sale in pursuance of an execution under any such judgment, decree or order issued prior to or after the commencement of this Act shall bind, charge or affect any estate or interest in land subject to the provisions of this Act unless and until the Registrar has been served with a copy of such judgment, decree or order certified by the court"...... . Subsequent provisions provide for the sale of the land so charged for the recovery of the judgment debt, and the registration of the consequent new owner by the Registrar of Titles, even without the production of the duplicate certificate of title. The judgment debtor was the registered Lessee of the sub lease when the Judgment was served and, as such the dicta of Inoke J, in the Rajai Singh case would not apply to the current case and application before Court.
    
16. However the 4th and 5th Defendants take a well traveled path; that an innocent (bona fide) purchaser for value need not look beyond the bare folio or memorial entries in the title certificate at the registry, and the 6 month period having lapsed as per section 105(2) of the Land Transfer Act, counting the 6 months from the 18th January 2007, the judgment has ceased to bind, charge or affect the land. The said Section 105 reads thus;
    

105.-(1) Upon production to the Registrar, by way of application, of sufficient evidence of the satisfaction of any judgment, decree or order registered under the provisions of section 104, he shall direct an entry to be made in the register of a memorial to that effect, and on such entry having been made, such judgment, decree or order shall be deemed to be satisfied.

(2) Every judgment, decree or order shall cease to bind, charge or affect any estate or interest in land in respect of which it is registered unless a transfer upon a sale under such judgment, decree or order shall be presented to the Registrar for registration within six months, or such extended period as the court by order made on application to it upon summons shall determine, from the day on which the copy of such judgment, order or decree was served.

17. The 1st and 2nd Defendants main contention is that an "innocent mistake" in writing the registration date (and the date in the memorial) as 18th January 2007 should be corrected to read as 18th January 2008, and the subsequent transactions (within 6 months) be subject to the deemed caveat created under section 104 by the registration of the said judgment.
    
18. This application may well be due to an altruistic motive on the part of the 1st and 2nd Defendants to prevent the loss otherwise to the Plaintiffs, who may well be left in a situation, where their judgment debtor is otherwise left with no assets to satisfy their judgment for personal injuries suffered. Or it may well be to avoid statutory liability under section 140. Sections 139, 140 and 149 of the Land Transfer Act reads thus;
    

139. Neither the Registrar nor any person acting under his authority shall be individually liable to any action, suit or proceeding for or in respect of any act or matter bona fide done or omitted to be done in the exercise or supposed exercise of the powers conferred on him by or under the provisions of this or any other Act.

Damages for mistake or misfeasance of Registrar;

140. Any person who either before or after the commencement of this Act-

(a) sustains loss or damages through any omission, mistake or misfeasance of the Registrar or of any of his officers or clerks in the execution of their respective duties; or

(b) is deprived of any land subject to the provisions of this Act, or of any estate or interest therein, by the registration of any other person as proprietor of such land, estate or interest, or by any error, omission or misdescription in any instrument of title, or in any entry or memorial on the instrument of title, or has sustained any loss or damage by the wrongful inclusion of land in any instrument as aforesaid, and who by this Act is barred from bringing an action for possession or other action for the recovery of such land, estate or interest,

may bring an action against the Registrar as nominal defendant for the recovery of damages.

149.-(1) No action for recovery of damages under the provisions of this Part shall lie or be sustained against the Registrar unless such action is commenced within the period of six years from the date when the right to bring such action accrued, but any person being under any disability may bring such action within three years from the date on which such disability ceased.

(2) For the purposes of this section, the date when the right to bring an action accrues shall be deemed to be the date on which the plaintiff becomes aware, or but for his own default might have become aware, of the existence of his right to make a claim.

19. The 1st and 2nd Defendants in their written Submissions in addition refer to section 165 and 168 of the Land Transfer Act, which sections read as follows;
    

Reference to court on legal points, etc;

165. Whenever any question arises with regard to the performance of any duties or the exercise of any of the functions by this Act conferred or imposed upon the Registrar or, in the exercise of any of the duties of the Registrar, any question arises as to-

(a) the true construction or legal validity or effect of any instrument; or

(b) as to the persons entitled or to the extent and nature of the estate, right or interest, power or authority, of any person or class of persons; or

(c) the mode in which any entry ought to be made in the register or any endorsement made on any instrument of title; or

(d) any doubtful or uncertain right or interest stated or dealt with by the Registrar,

it shall be competent for him to refer the same to the court in the prescribed form, which shall require all the parties interested to appear and show cause in relation thereto, and if, upon such reference, the court, having regard to the parties appearing before it, shall think proper to decide the question, it shall have power so to do or to direct any proceedings to be instituted for that purpose or, at the discretion of the court, and without deciding such question, to direct such particular form of entry or endorsement to be made in the register or on the instrument of title, as the case may be, as in the circumstances shall appear to be just.

Power of court to direct Registrar;

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

Nevertheless the other two provisions sandwiched in between are pertinent to be noted and they read thus;

Correction of instrument issued in error;

166. If it appears to the Registrar that any grant, certificate of title or other instrument of title has been issued in error or contains any misdescription of land or of boundaries, or that any entry or endorsement has been made in error on any such instrument, or that any such instrument, entry or endorsement has been fraudulently or wrongfully obtained, or that any such instrument is fraudulently or wrongfully retained, he may summon the person to whom such instrument has been so issued, or by whom it has been so obtained or is retained, to deliver up the same for the purpose of being cancelled or corrected as the case may require, and, in case such person refuses or neglects to comply with such summons or cannot be found, the Registrar may apply to the court to issue a summons for such person to appear before the court and show cause why such instrument should not be delivered to be so cancelled or corrected, and, if such person when served with such summons neglects or refuses to attend before the court at the time therein appointed, it shall be lawful for the court to issue a warrant authorizing and directing the person so summoned to be apprehended and brought before the court for examination.

Power of court in case of refusal to deliver up instrument of title;

167. Upon the appearance before the court of any person summoned or brought up by virtue of a warrant issued under the provisions of section 166, the court may examine such person upon oath and may order such person to deliver up such grant, certificate of title or other instrument of title, and, upon refusal or neglect by such person to deliver up the same pursuant to such order, to commit such person to prison for any period not exceeding six months unless such instrument shall be sooner delivered up, and in such case, or in case such person has absconded so that the summons cannot be served upon him as hereinbefore provided, the court may direct the Registrar to cancel or correct any such instrument of title or any entry or memorial in the register or of any endorsement relating to the land, estate or interest therein contained, and to substitute and issue such other instrument of title or make such entry or endorsement as the circumstances of the case may require, and the Registrar shall give effect of such order.

Sections 165 to 168 provide the Registrar the avenues, to not only seek interpretation and directions from Court when in doubt, but also to halt a fraud in progress when detected, making it obvious that it is a function of the Registrar to do so.

20. However as the 1st Defendants Counsel refers to sections 165 and 168 of the Land Transfer Act and brings to the attention of Court that the 1st Defendant can seek advice and clarification from Court, (though such application ought to be made in the "prescribed form") the purpose of this application may well be to seek guidance to avoid such "innocent mistakes", and perhaps to refresh the dynamics of this particular Act in its implementation by the 1st Defendant. As such it is pertinent to regress to the history behind the Torrens System of Registration, as far too often it is held in too much awe leading to many an error being made in being unmindful of its weaknesses. Legislation based on the Torrens system affecting land first appeared in South Australia in the middle of the 19th Century.
    
21. The province of South Australia was established by the South Australia Act of 1834 passed by the British Parliament. The said Act allotted 309,851 square miles to the said colony stated to be for "free immigrants", where "terra nullius"(unclaimed virgin land-se Mabo v. Queensland- Mabo case No.2-, 1992, HCA-23; 1992- 175CLR-1) did not apply, unlike as against the other provinces of Australia. The Letters Patent attached to the Act guaranteed land rights for the indigenous inhabitants though it may have been alleged to have been observed in the breach. The theory of systematic colonization as espoused by Edward Gibbon Wakefield appears to have been followed, as it was thereafter, followed in New Zealand by the "New Zealand Company". South Australia has the 5th largest gold deposit, the 4th largest copper deposit, and the single largest Uranium deposit in the world (at the Olympic Dam mine).
    
22. At the inception (1834) the Governor held total authority through the Letters of Patent of the British Government, being accountable only to the Colonial office. In 1843 the Legislative Council was created to advice the Governor. In 1851 with the Australian Colonies Government Act of the Imperial Parliament, election of 16 representatives of the colonist out of 24 in the Legislative Council became possible, with the balance 8 members appointed by the Governor. In 1861 South Australia granted women's suffrage. It is in the background of this "melting pot" stage of South Australia that in 1858, Robert Torrens (said to have been Prime Minister of South Australia at one time) introduced the innovative, and at that time a radical concept, affronting the revered common law principle "nemo dat quod non habet"(no one can give what he does not have- or –one cannot give a better title than one has), revolutionizing land ownership. It was later to be known and referred to as the "Torrens System". His invention may well have born out of the necessity to find a solution to the loss of over 75% of the 40,000 land grants issued in South Australia at that time due to a boom in land speculation followed by haphazard granting.
    
23. The system of registration of British Merchant ships, with their ownership and particulars at one port and the availability of that registration in Duplicate to the owner and the Captain, at that time, may well have inspired Robert Torrens to develop the Torrens System on those lines. Yet again the Hanseatic registration system that existed in Hamburg, through the German Lawyer Ulrich Hubbe who lived in South Australia during the middle of the 19th Century, may have led to contributions from even the Prussian Mortgage legislation to the Torrens System. Robert Torrens migrated back to Ireland and was later knighted for his work. The legacy of Sir Robert Torrens has survived for over 150 years. It has spread beyond the Commonwealth to some states in the United States of America as well, namely; Colorado, Georgia, Hawaii, Massachusetts, Minnesota, New York, North Carolina, Ohio and Washington.
    
24. It is pertinent to consider what the Torrens System sought to replace. Prior to the Torrens System there was only one general system of title to land established by consecutive title deeds recording the evidence of each and every consecutive succession to ownership. The deeds were formally drawn and executed by Solicitors or Notaries, which was their conveyancing practice. Those deeds in most jurisdictions needed to be registered under a register number (prior registration number or folio) or folder where all such deeds showing a line of succession needed to be registered, the attention being on the long line of successive deeds. It is this long line establishing a title to a particular land in a Court of Law, with the first deed registered, between two contesting deeds, obtaining priority and thereby prevailing, that confirmed ownership of that land to the current holder of that title by prior deed, which were known as the title deeds to that land (the land being described in the deeds or in the Schedule to each and every such deed). In this old system of title deeds there could exist more than one successive lines of title deeds to the same land. This is where the Torrens system notably differed from the previous common law title to land by title deeds. In the Torrens system the attention is on the land, with registration possible once in respect of one particular land. It is on this land once registered that a (One)title certificate ( Certificate of Title ) is issued with particulars entered from time to time in short memorials, which are attached (as part of) to the certificate and travel with it in duplicate. The Certificate of Title replaces the long line of title deeds, and the duplicate Certificate in the hand of the owner (when entries are up to date) gives a prospective purchaser the current status of the ownership of the land as well as any encumbrances, easements and caveats, at a glance, with the prudent requirement to peruse the original Certificate of title with the Register. The previous system of title deeds entailed the search and examination of all the deeds by a Solicitor along with his opinion as to the sustainability of the title in Court. Whereas the previous system placed the burden of maintaining title on the Solicitors and the Notaries, the Torrens System placed that squarely on the State through the Registrar of Titles. Under the Torrens System the state guarantees title once the land and the ownership is registered, and as such places a burden of maintaining the status of that title through the lodgment process of entries in the memorials attached to that Certificate of Title on the office of the Registrar of Titles. It is this burden that is cast upon the Registrar that needs to be verily understood by the Registrar, for the Torrens System not to fall in to disrepute. Having understood well such inherent weaknesses of the system, (as in any system) Robert Torrens not only fathered the Torrens System, he saw it through the legislature and resigned his membership in the South Australian Parliament to be its first Registrar. It may well be a rare instance of one person being the mover of an Act of Parliament as well as its Administrator, enforcer and adjudicator. The need to have had to do so, no doubt should remind Registrars under the Torrens System the need to be familiar with not only the provisions but also the objectives the spirit and the conditions under which it came to being, as well as what it ventured to replace. Claims to land have led to wars, and even after the Torrens System still Courts are replete with disputes over lands, than over any other movable or immovable goods. The need for entries to be accurately made appreciating their significance, and decisions often of a legal nature to be taken, having to decide as to what documents to be sought to recognize ownership, being familiar with technical legal terms, maintaining the integrity of the register etc., by the Registrar, made section 6 of the Land Transfer Act necessary, which reads as follows;
    

"6. The Judicial and Legal Services Commission may appoint any fit and proper person to be Registrar of Titles and such Registrar of Titles shall be charged with the administration of the provisions of this Act." (Inserted by 25 of 1974, s. 3.)

25. Many administrative procedures need to evolve to secure the integrity of the entries that begin with a lodgment. To mention a few; when records are kept manually it is the serial number of the lodgment that is recorded first followed by the time, date and other entries, with more than one clerk employed so that any previous error could be detected by the other and to make fraud with the connivance of the registry difficult. At least a Lodgment clerk, a Numbering clerk and an Endorsement clerk separately makes entries before it is presented to the Registrar for signature. If date stamps are used their subsequent use beyond that date should be eliminated by defacing after saving a sample stamp on durable paper. Such date stamps should be unique to prevent a common date stamp available in the market from being used to insert an entry later. Records of lodgments handled by each clerk should be kept with a sample of his handwriting. Etc., etc. Today most registries are computerized with the time and date of entry being made automatically generating a serial or "dealing number". However many registries still carry the same regulations and procedures that existed over150 years ago, with some of them not adhered to, not due to being redundant, but merely for not appreciating their purpose. The Register of Titles is a specialized registry, which demands trained staff and a very low tolerance for human error. On a heavy day fatigue can and often does lead to human error.
    
26. The Torrens system is said to revolve on 3 principles; 1. The mirror principle (that the Certificate of title and its duplicate is a perfect reflection of the ownership and the status of the land- there being no other). 2. The curtain principle ( that one need not go behind the Certificate of title –a curtain drawn across the history of the land, before the first registration). 3. Insurance principle (by providing compensation for loss due to the operation of the system under particular circumstances).
    
27. Enough said about the Torrens System, this Court will now consider the particular memorials on the Native Lease No.14279, which are causing the dispute.
    

Some anomalies;

28. Strangely the said judgment served on the Registrar of Titles on 18th January 2008 has been entered in the memorials of the Native Lease No.14279 (of that land) twice as thus;
    

firstly; as a; "JUDGMENT No.698496 Registered 18/01/07 at 12.49 pm" "To......................"with a note at the bottom of that memorial stating "Judgment" and the date "18/1/08" which has been endorsed with a rubber stamp "ENDORSED IN ERROR" and bearing the seal of the Registrar of Titles (referred to hereinafter as the first memorial), and,

Secondly; immediately after the first memorial another memorial has been entered bearing; "JUDGMENT No.698496 Registered 18/01/07 at 12.49pm" "To................." which does not bear the Seal of the Registrar but bears a signature for the Registrar of Titles which signature does not bear a resemblance to any other signatures for the Registrar of Titles immediately before or after that second said memorial (hereinafter referred to as the second memorial). The said second memorial does not carry the note of the date "18/01/08" that appears at the bottom of the first memorial that bears the "ENDORSED IN ERROR" stamp. The signature on the second memorial however resembles the signature along with the large seal of the Registrar of Titles that appears as the Signature of the Acting Registrar of Titles in the certificate of the Solicitor Rajendra P.S. Chaudhary which accompanies the "DECLARATION ACCOMPANYING APPLICATION TO REGISTER JUDGMENT". In the said certificate too the date stamp is in error as "18 JAN 2007". The time is hand written as 12.49pm. The "first memorial" appears as the 5th memorial on a particular page of the memorials attached to the annexure "C" of the affidavit of Navin Prasad of 16 October 2008. All the aforesaid is gathered from the annexure marked "C" and "E" with the affidavit of Navin Prasad of 16th October 2008 which was filed in support of the Originating Summons in this case and not from any annexures with the 1st Defendant's affidavit, to its current summons of 3/3/2010.

29. In the affidavit dated 18/2/2010 of the 1st Defendant (the Registrar of Titles), the memorials to the Memorandum of Lease annexed as "UL4" does not show all the above particulars. It appears as if the 1st Defendant has annexed as "UL4" an annexure said to have been attached to a previous affidavit of Navin Prasad and Samuel Nilesh Prasad of 16 January 2008 as per the seal of the Commissioner for oaths Ram Krishna to be seen at the bottom left corner of the 1st page of "UL4".
    
30. In the aforesaid affidavit of the Registrar of Titles Usenia Losalini, the Registrar at paragraph 5(b) therein refers to a Mortgage dealing no.700887 said to be set out in a memorial in the photocopy of the Sub-Lease document annexed as "UL4". However "UL4" does not show such a memorial. On the other hand the photo copy of the Sub-Lease annexed as "C" to the Navin Prasad affidavit of 16/12/2008 shows the memorial of Mortgage dealing no.700887.
    
31. As only the first half, of the said judgment served on the 1st Defendant, is annexed together with an order of the Master as "UL5" to the Affidavit of Usenia Losalini the 1st Defendant, in support of the application under consideration, this Court had to obtain the judgment sum from the full judgment annexed to the affidavit of Navin Prasad as "B," filed with the Originating Summons. As such the 1st Defendant by error again has omitted to annex the complete judgment, which is admittedly registered and lodged with it, to this application.
    
32. The particular relevant memorial is the one that registers the serving of the Judgment. In fact there are two such memorials as pointed out at above paragraph 28. The "first memorial" though it has been stamped as "ENDORSED IN ERROR" shows a hand written date of 18/1/2008. The lodgment a photocopy of which is annexed to the Navin Prasad affidavit of 16/10/2008 as "D" shows the lodgment date to be 18/1/2008 (the correct date). The Lodgment is supposed to be the 1ST document issued by the Registry when it receives a document for registration. The 1st Defendant has not filed a copy of the Lodgment with its affidavit. In fact even "UL4" appears to be a document borrowed from a previous affidavit of the Plaintiffs whereas the 1st Defendant ought to have made copies from the Lease no. 14279 and the memorials therein from its own records where the originals are. The relevant entries of the "Presentation Book" too is not referred or annexed to the current application. How the Registrar comes to a conclusion that the error was an INNOCENT MISTAKE is not explained by the Registrar. The entries should be put through more than one clerk, and if the registration is at least partially computerized (said to be in 1994), then why the incorrect date was not detected by the computer data base are left without answer.
    

Analysis;

33. The 1st and 2nd Defendants did not allege fraud on the part of the 4th or 5th Defendants, but urges willful blindness on their part. In any event fraud is not an issue that ought to be determined by affidavits alone unless under very exceptional circumstances, and this Court shall not venture to do so on the affidavits alone filed in this case.
    
34. On the submission on willful blindness, this Court will venture to examine whether on the memorials themselves the 4th and 5th Defendants ought to have known of an error of date on the face of the memorials, and not to have examined and verified the date of service of the judgment could amount to "willful blindness".
    
35. The "first memorial" and the "second memorial" both does not carry any endorsement that it is valid for 6 months, and there is no reference to sections 104 or 105 of the Land Transfer Act. As such any layman on examining the said memorials would be alerted that there is a judgment of a Court of Law that affects the land, and it could be "willful blindness" on the part of a layman if he did not examine the Judgment lodged and available at the Registry. The Judgment lodged would reveal the date of the Judgment to be in December 2007 and sealed on 15th January 2008 and as such the lodgment should have been after that date, and the error would have been apparent to him. Even if not so he would have no cause to rest unless he was advised of section 105(2), and in that event too he would have realized that by the date of transfer (3/3/2008), 6 months would not have lapsed even from the date of the judgment, and as such a caveat would on 3/3/2008 be in force. Even the copy of the Lodgment of the judgment attached as "D" to the NavinPrasad Affidavit of 16/10/2008 shows the lodgment date to be 18th January 2008!(correct date).
    
36. If on the other hand the search was done by a Solicitor aware of section 104 and 105, still his professional eye ought to have detected the date of 18/1/2008 in the "first memorial". He would further be capable of checking the memorial backwards and should have noted the date of the judgment to be in December 2007. On the examination of the Presentation Book and the "dealing number", the correct date on the Lodgment document, the error of the date on the Memorial would have been obvious. It could be "willful blindness" on the part of a Solicitor not to examine a judgment on the title as he too would not know what the judgment is about till he reads it. It being a judgment and section 105(2) empowering the Court to extend the time of 6 months, and knowing that, it could be "willful blindness" not to read the judgment and thereby note its date.
    
37. Furthermore the agreement to transfer appears to be dated 16th January 2008, (as per annexure "H" attached to the 16th October 2008 Affidavit of Navin Prasad ) and as it is before 18th January 2008, the search carried out before the agreement to transfer could not have revealed the Judgment and the subsequent discovery of it on at least 3rd March 2008 should have alerted the 4th and 5th Defendants, that the judgment had been served within that interim period in 2008 and not in 2007, which brings up the possibility that they may have accepted the transfer with the full knowledge of the judgment and subject to it. At the same time it may well be that the 4th Defendant did not make a search after 16th January 2008. As such it is evident that such matters cannot be decided by affidavits alone. Therefore this Court shall not equate the possibility of "willful blindness" as observed above to the element of fraud required by section 40 of the Land Transfer Act, and the aforesaid authorities, as this Court has not had the benefit of the evidence and the original documents and entries being viewed and tested under cross examination.
    
38. However there remains an important issue to be determined with regard to the process of this Court, which this Court must address ex mero motu (by its own cognisanze) when parties have not. That is when a judgment of a Court is served on the Registrar of Titles, whether on the title it is the actual date and time of service of the judgment or the date and time of the memorial entry that binds the title.
    
39. The relevant parts of Section 104 of the Land Transfer Act, provide as follows;
    

104.-(1) No judgment, decree or order for the payment of money, the sale of land or a sale in pursuance of an execution under any such judgment, decree or order issued prior to or after the commencement of this Act shall bind, charge or affect any estate or interest in land subject to the provisions of this Act unless and until the Registrar has been served with a copy of such judgment, decree or...............

(2) The Registrar, on being served with a copy of a judgment, decree or order under the provisions of subsection (1) shall, after marking upon such copy the time of service, enter the same in the register; and with effect from the time of service thereof upon the Registrar such judgment, decree or order shall, subject to the provisions of subsection (2) of section 105, have the effect of, and be deemed to be, a caveat lodged under the provisions of section 106, subject to any prior registered mortgage or charge .........

40. It will be appreciated the words used "served" in "Registrar has been served with a copy" at section 104(1) is distinct from the word "lodge" used in section 106 that; Any person;
    

a. ......................................

b. ..................................

......... may at any time lodge with the Registrar....

41. Section 104(2) states; "The Registrar, on being served with a copy of a judgment, decree or order under the provisions of subsection (1) shall, after marking upon such copy the time of service, enter the same in the register; and with effect from the time of service thereof upon the Registrar such judgment, decree or order shall, subject to the provisions of subsection (2) of section 105, have the effect of, and be deemed to be, a caveat lodged under the provisions of section 106, ............"
    
42. Therefore the judgment served is deemed to be and have the effect of a caveat with effect from the time of service thereof upon the Registrar. The difference in the wording is with the obvious purpose of preventing judgments of Court from being frustrated by a lesser authority. Once the judgment is served it binds the registry from the time of its service. The Registrar or the clerks cannot purport by mistake innocent or otherwise or by purpose negate the judgment or process of Court. Once the judgment is deemed a caveat under section 106, the Registrar should ensure to make the relevant memorials and notify the caveatee. A judgment served is deemed a caveat for the purpose of adopting the result of a caveat and for enforcement, and not to equate it to a caveat.
    
43. The immediately relevant provisions leading to entering memorials, which give the function of the Registrar at a glance are sections 19, 20, 24 and 25, which read as follows;
    

Register of Titles

19. The Registrar shall keep books, to be called the "Register of Titles", and shall bind up therein the originals of all instruments of title to be issued as hereinafter provided, and each instrument of title shall constitute a separate folium of the book in which such instrument is entered and the Registrar shall record, by entering a memorial thereof on the folium constituted by each such instrument of title, the particulars of every other instrument, dealing or matter affecting the same and which is required by the provisions of this Act or entered in the register.

Presentation Book

20. The Registrar shall also keep a book, to be called the "Presentation Book", in which shall be entered by a short description every instrument which is presented for registration with the day and hour and, if required by the person presenting the instrument, the minute of presentation; and, for purposes of priority only, the time of registration, notwithstanding the provisions of section 21, shall be deemed to relate back to the time of presentation for registration. The Registrar in entering memorials upon the instruments of title embodied in the register and endorsing a memorandum upon an instrument to be issued shall take the time from the Presentation Book as the time of registration.

(The extracts or photocopies of the "Presentation Book," is not placed before this Court by the 1st Defendant.)

Memorial of registration

24. Every memorial entered in the register shall state the nature of the instrument to which it relates, the day and hour of the presentation of such instrument for registration, and such other particulars as the Registrar may direct, and shall refer by number or symbol to such instrument, and shall be signed by the Registrar.

Memorial to be endorsed on duplicate instrument, and certificate of time of registration to be endorsed on very instrument so registered

25. Whenever a memorial of any instrument has been entered in the register, the Registrar shall, except as herein otherwise provided, endorse the like memorial on each duplicate grant, certificate of title or other instrument affected thereby, unless he dispenses with production of the same, as hereinafter provided; and the Registrar shall endorse on every instrument so registered a certificate of the time at which the instrument was presented for registration and shall authenticate each such certificate by signing his name and affixing his seal thereto, and such certificate shall be received in all courts as conclusive evidence that such instrument has been duly registered. (underlining and emphasis mine).

44. When a caveat is lodged or is deemed, the Registrar should, enter a memorial and under section 115 and under section 109(1) give notice of that caveat to the caveatee (the 3rd Defendant). It is of relevance whether such a notice had gone to the 3rd Defendant after 18th January 2008. section 109(1) and 115 reads as follows;
    

Notice and opposition to caveat

109.-(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.

Memorandum of caveats to be fixed to certificates

115. The Registrar shall cause a memorial to be entered in the register of every caveat lodged under the provisions of section 106 and a copy of such caveat or so much thereof as the Registrar shall deem material to the person notified shall be sent with the notification required by the provisions of section 109.

45. When the judgment was served on the Registrar on the 18th January 2008, irrespective and independent of the error of the date entry in the memorial, the Registrar should have given instructions or automatically steps should have been taken to notify the 3rd Defendant on or about 18th January 2008. If that step had not been followed or no record is found of it, then it indicates complicity, and the mistake may not be innocent.
    
46. The order of the Master in HBC 154 0F 2006L served on the Registrar of Titles is admittedly noted in a memorial on 4th June 2008 after the transfer to the 4th Defendant and the Mortgage to the 5th Defendant, and the 4th and 5th Defendants have not appealed or sought to set aside that order. As it stands the sub lease in favour of the 4th Defendant is subject to the charge extended by the order of the Master.
    
47. On serving the judgment on the Registrar of Titles the Plaintiffs are in Law assured of a charge on the said property as provided by statute as well as by the process of this Court. No judgment creditor would be safe if innocent mistakes or otherwise at the Register of Titles are permitted to frustrate the judgments of Court. Without going against the principle of indefeasibility of title, the provisions of the Land Transfer Act upon a plain and normal reading as above, too provides an exception as to when a Judgment deemed to be a caveat is effective from; being from time of service on the Registrar of Titles, as against any other caveat which in contrast is from time of lodgment.
    
48. Therefore this Court finds that the charge is effective from the date of service of the judgment in HBC 154 0F 2006L on the Registrar of Titles, which service was on the 18th January 2008, due to the reasons set out herein above, and as such the applicant the 1st Defendant is entitled to only the first and second relief's claimed as varied to be only a charge, in that the transfer to the 4th Defendant and the Mortgage to the 5th Defendants to stand subject to the charge created in the judgment sum of the judgment served. In finding as above it naturally follows that the memorial and other entries, made in error, ought to be rectified so as not to mislead the public any further. The Judgment appears to be in a sum of $37,585.00 in favour of the 1st Plaintiff and $57,832.00 in favour of the 2nd Plaintiff, together with costs in favour of the Plaintiffs in a sum of $3500.00 making a total charge of $98,917.00 as at the date of the judgment. In the said judgment interest on special damages and loss of income had been awarded at 3% (per annum) and on "past pain" at 6% (per annum) up to the date of judgment.
    
49. 4th and 5th Defendants Counsel informed Court at the hearing that the transfer from 3rd Defendant to 4th Defendant was for an amount of $382,000/=, and the Mortgage to the 5th Defendant was in a sum of $380,000/=. It is noteworthy that the 5th Defendant has virtually financed the full sale price( less by $2000/=), whereas it is customary for financial institutions not to provide Mortgage for the full value, thereby indicating that the value of the property may well have exceeded the transfer price.
    
50. The judgment only creates a charge to the extent of the judgment sum due to the Plaintiffs, and upon the payment of that sum satisfaction could be entered freeing the sub lease of the charge as provided in section 105(1) of the Land Transfer Act (see above paragraph 16).
    
51. Rather than splitting hairs on legal arguments, it may do, both the 4th and especially the 5th Defendant which has extended substantial finances to the transfer, good, to settle the judgment to the Plaintiffs and recover any loss from the 3rd Defendant and/or the Registrar of Titles if cause of action is advised as available to them by their Counsel. They may also consider a Mortgagee sale subject to the charge if advised as available by their Counsel.
    
52. The 5th Defendant could find itself in the shoes that the Plaintiffs are in this action more often than the Plaintiffs in personal injury cases would, where at least 3rd party insurance is available for recovery.
    
53. It is the "error" of the 1st Defendant that led the parties to this action and this application, and given the circumstances of this application as referred to above and the 1st Defendant's failure to produce copies of original documents as referred above which ought to be available with it, causing inconvenience to parties and Court, the 1st Defendant should pay the costs of these interlocutory proceedings to the other parties excluding the 3rd Defendant. The claim of indemnity costs in a sum of $5500/= each, by the 4th and 5th Defendants is not without merit as the 1st Defendant has wasted precious time of parties as well as of Court by this interlocutory application, instead of facilitating an early trial. However this Court does not consider such costs appropriate at this interlocutory stage.
    
54. No further orders could be made in an action commenced by Originating Summons and pursuant to an interlocutory application, though the Plaintiffs appear to have converted this action by filing Writ of Summons and a Statement of Claim. It is for the Parties to proceed to pretrial steps, as affidavits cannot take this matter any further, or adopt the following orders if not appealed as judgment in this case.
    
55. Therefore the orders on interlocutory judgment are;
    
    1. That the judgment number 698496, on Native Lease No. 14279 being Lot 7 Waiyavi Sub-Division in the District of Vuda and in the Province of Ba, shall bind the said lease as a charge to the extent of the monetary sum of the judgment only, and shall stand as having effect from 18th January 2008 till further orders of Court,
       
    2. Rectification of the incorrect date of registration of judgment No. 698496 as a charge as aforesaid from 18 January 2007 to the correct date of 18 January 2008 to be effected by the Registrar of Titles forthwith,
       
    100. The transfer to the 4th Defendant and the Mortgage to the 5th Defendant, of Native Lease No. 14279 being Lot 7 Waiyavi Sub-Division in the District of Vuda and in the Province of Ba, to survive and subsist, subject to the charge created as aforesaid in favour of the Plaintiffs, by the judgment number 698496 for the judgment sum therein,
         
    4. The 1st Defendant to pay the Plaintiffs, the 4th and 5th Defendants costs of this application to be taxed on the standard basis or in a sum of $1000/= to each party which ever is higher.
       
    5. Mention on 5th December 2011 for further directions or to incorporate the aforesaid interlocutory judgment as judgment in this action.
       

Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
3rd November 2011.