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Singh v Singh [2011] FJHC 723; HBC350.2003 (10 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 350 OF 2003

BETWEEN:

BIRMATI SINGH f/n Randir Singh of Tuvu, Ba.
Plaintiff

AND:

PRADEEP SINGH f/n Jaswant Singh of Tuvu, Ba but now of Nasoso, Nadi.
1st Defendant

AND:

INDIRA DEVI retired of Carlton Victoria, Australia.
2nd Defendant

AND:

SUNIL DEEP SINGH of 63 Gallipoli Parade, Vascoe Vale South Melbourne, Director of Computer Company.
3rd Defendant

AND:

JAI DEEP SINGH Qantas Flight Attendant of Broadmeadows, Victoria, Australia.
4th Defendant

AND:

PRATIMA DEVI SINGH Public Servant of Northcote, Victoria, Australia.
5th Defendant

AND:

KAMAL DEEP SINGH Businessman of Toronto, Canada.
6th Defendant

AND:

CHANDRA DEEP SINGH of Surrey, BC, Canada.
7th Defendant

DIRECTIONS

(10 November 2011)

[1]. The last set of directions I gave in this case was dated 23 July 2010. Those directions were made following a site visit with Mr. Whippy on 26 May 2010. Based on an email of Mr. Whippy, and after discussions with him, I did sketch out the steps to be taken to take the subdivision process to completion by 27 May 2011. Although the process is well out of schedule, Mr. Whippy has now completed a Survey Plan which is ready to be lodged at the Office of the Registrar of Titles. It is this Survey Plan on which Mr. Patel has commented – though belatedly. Mr. Patel's comments appear as follows in bold and Mr. Whippy's response to each is italicized.

1.1 The plan submitted does not show equal areas as per the Court's order.

All the areas of the nine separate lots are of equal area.

1.2 The access to the rear of the lots is not shown on the plan especially in regards to lost 5 to 9.

As per the above scheme, from Town Planning, there are no access easements to the rear of the property. Legally every lot has to have access to a proclaimed road, and each of the nine lots have access to Queens Road.

1.3 The land upon which the Tuvu Primary School is situated is not clearly defined.

The lot on which the Tuvu Primary School sits has been shown on the maps and is clearly defined and detailed by diagram on sheet 2 of the Title Plans that you signed.

1.4 The sub-divided lots need to be valued by a registered valuer. Therefore the plan should show where the former tenants have their house sites. This will be an issue which will cause problems for those who pick lots with these encumberances.

Although the existing occupants are squatters, every one of their houses are shown on the main Title Plan that the High Court endorsed.

1.5 To leave the parties to decide on access easements to the rear lots will cause further problems in the future. Once indefeasible titles are obtained a party could refuse access of the land he or she draws.

Eight out of nine have already decided that they will share common access ways, when and if they decide to subdivided after they each obtain their lots. Since there are no existing access roads through the property that open up the rear part of the block, these roads will have to be put in, at the most practical locations to adequately serve the subdivided sections, should this scenario eventuate.

1.6 The parties are all foreign citizens. This raises the question of the legality concerning the proposed dealing in lands including the future grants of easements (see sections 2 of the Land Sales Act) definitions of "dealing", definition of "development", definition of "land", definition of "resident" and "non-residents". Query whether the order of the Court could have been made without the prior written consent of the Minister responsible for lands under the provisions of section 7 of the Land Sales Act?

This is a legal matter which I cannot comment on.

[2]. Points 3.1 to 3.4 have been canvassed in my earlier directions. I am satisfied with Mr. Whippy's response, having been on the site myself. There is nothing in Connors J's direction about how the "squatters" should be dealt with. I had addressed this in my earlier direction. There is also nothing in Connors J's ruling about how Tuvu Primary School has to be dealt with. These are things that the Singh's will have to sort but amongst themselves. This court would be ill-advised to presume that those people on the land are "squatters". Need say no more.

[3]. As to point 3.6, ideally, this should have been raised earlier before Connors J if it really is an issue. Section 7(1) of the Land Sales Act (Cap 137) forbids any non-resident from making any contract for the disposition of any land in favour of another non-resident without the prior written consent of the Minister for Lands.

[4]. In this case, the plaintiffs and the defendants currently own - as tenants in common – the land in question which is the whole of CT No. 7736. It is the subdivision of this land which they had consented to before Connors J and which subdivision is now in the process of being carried through. The land is to be subdivided into 9 equal lots and they are to get one lot each.

[5]. I have some misgivings about whether this amounts to "any contract for the disposition of any land" by a non-resident and "in favour of another non-resident". I have received no assistance on this point, although the point raised by Mr. Surya Deep Singh that section 7 of the Land Sales Act does not affect the Order for subdivision or the surveys being carried out – appears to me to be correct – given that the parties are currently all tenants in common who inherited the property from the late patriarch of the Singh family, Mr. Jaswant Singh.

[6]. Section 7 may come into effect though if the parties were to later, after subdivision, and after they have been allocated their separate lots, enter into various agreements to grant easements to each other after the subdivision of the land.

[7]. I welcome any assistance from Mr. Patel on this to ensure that the subdivision is smoothly carried out to completion.

[8]. Meanwhile, I hereby direct Mr. Whippy to lodge the Plans with the Registrar of Titles and to update the parties on its progress. Otherwise, Mr. Patel is at liberty to apply.

Anare Tuilevuka
Master

10 November 2011.