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Singh v Singh [2014] FJHC 5; HBC326.2012 (16 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 326 of 2012

BETWEEN:

SHALENDRA SINGH
of 12130 101B Avenue Surrey BC, Vancouver, V3V7X6 Canada, temporarily of Galoa queens Road, Serua, Businessman.

Plaintiff

AND:

YAJBAL SINGH aka JANEN SINGH
of Reba Circle, Nadera, Nasinu, Company Director and Businessman and C/- Messrs Neel Shivam Lawyers, PO Box 260, Suva.

1st Defendant

AND:

REGISTRAR OF TITLES of Suva.

2nd Defendant

Counsel : Ms Vasiti for the Plaintiff

Ms Whippy for the 1st Defendant

No Appearance for the 2nd Defendant

Date of Judgment: 16th January 2014

JUDGMENT

1. Originating summons was filed on 12th December 2012 and sought the following orders:

(i) the time for removing Caveat No. 760429 lodged by the Plaintiff against Crown Lease No. 10805 be extended until further order of this court;

(ii) such further and other relief as this court may deem just and expedient.

2. The said summons was supported by the Affidavit sworn by Shalendra Singh, the Plaintiff and deposed interalia:

(i) the Defendant is the lessee of the premises described as Crown Lease No. 10805 being Lot 2 in Plan No. SO1359 part of Volivoli, Rakiraki Vitilevu;

(ii) on or around 20th December 2011, the Plaintiff had lodged a caveat on the property (copy of the caveat annexed as 'S1');

(iii) there is an action in the High Court Suva No. HBC 331 of 2011 filed by the Plaintiff claiming certain monies given to the Defendant in expectation the subject property being transferred to the Plaintiff. (Copy of the amended Writ of Summons pertaining to the said Case No. 331 of 2011 was annexed marked 'S2');

(iv) the Plaintiff stated the Defendant refused to transfer the property, however, he acknowledge the debt of $87,500 and signed acknowledgement of Debt on 16th September 2011 for $87,500 and copy of same marked as 'S3';

(v) by the amended Statement of Defence filed by the Defendant in Case No. 331 of 2011 in paragraph 4, the Defendant admitted that the Plaintiff advanced the monies to the Defendant (copy of the amended Statement of Defence marked as 'S5');

(vi) the Defendant having admitted the debt failed to pay the monies owing to the Plaintiff;

(vii) the Plaintiff stated his claim is a bona fide claim and he verily believes he will succeed and delaying repayment will continue to greatly prejudice the Plaintiff;

(viii) the Plaintiff stated the caveat was lodged to protect his interest, in case the Defendant seeks to alienate his property the Plaintiff will not have recourse against the Debt (if the Plaintiff's claim is decided in his favour);

(ix) on 7th December 2012, the Plaintiff received a copy of a Notice of Removal of Caveat from Registrar of Titles (annexure 'S6');

(x) the Plaintiff had stated if the caveat is removed the Defendant may either sell or encumber the property and he risks losing all his interest in the property.

3. The 1st Defendant by his Affidavit in Reply dated 5th February 2012, deposed inter-alia:

(i) the 1st Defendant denied that the monies lent by the Plaintiff were on the expectation of the Defendant transferring partnership his business and his properties to him, there was no such agreement;

(ii) the Defendant admitted that monies were lent to him personally since there was cash flow problems in his business and he also admitted that he signed the acknowledgement of debt on 16/5/2011 annexed as 'S1' to the Plaintiff's Affidavit in Support;

(iii) the 1st Defendant stated the Debt Claim did not give the Plaintiff a caveatable interest in the Crown Lease 10805 being Lot 2 in Plan No. SO 1359;

(iv) the 1st Defendant denied that he agreed to appoint the Plaintiff as Director of his Company or had an agreement to transfer his business shares to him;

(v) the 1st Defendant stated the Plaintiff failed to submit substantive evidence or material to prove his caveatable interest in the Crown Lease No. 10805 and the said caveat should be removed.

4. When this matter was taken up for hearing on 5th April 2013, counsel for the Plaintiff and 1st Defendant made their submissions. The counsel for the 1st Defendant filed the skeleton submissions. The Plaintiff's counsel made oral submissions and filed the written submissions on 11th April 2013.

5. The counsel for the Plaintiff submitted:

5.1 The Plaintiff filed this application pursuant to Section 110(3) of the Land Transfer Act [Cap 131] for an order that Caveat No. 760429 be extended until determination of the claim filed by the Plaintiff.

5.2 The Plaintiff's position was that he has a caveatable interest over the property by way of a constructive trust established as a result of the Defendant receiving $87,500.00 and the Defendant had given a verbal promise that he would transfer 50% shares to the Plaintiff but failed to do so.

5.3 An acknowledgement of debt marked as 'S2' to the Affidavit in Support was signed by the Defendant and the Plaintiff had demanded the said sum.

5.4 By admitting the debt, the Defendant hold the property in trust, as such there is a constructive trust.

6. On the other hand the Defendant's counsel argued:

6.1 The alleged sum of $87,500.00 was borrowed from the Plaintiff and the Plaintiff's claim is for a simple debt and does not entitle him to lodge a caveat against the 2nd Defendant's property.

6.2 A caveatable interest at best is proprietary interest in land which is recognizable by law and a caveat can only be lodged as identified in the case authority of Municipal District of Concord -v- Coles [1905] HCA 35; (1906) 3 CLR 96:

"only a person who has legal or equitable interest in land, partaking of the character of an estate in it or equitable claim to it."

6.3 Legal or equitable interest must exit prior to the lodgment of the caveat and should not be a "mere potentiality". A pure personal or contractual right will not be sufficient to lodge a caveat.

6.4 It was further submitted a simple debt does not entitle the creditor to lodge a caveat against the debtor's land for example a claim for unpaid legal fees, a loan to purchase or improve land etc. unless the debt constitutes an interest in land such as for example a beneficial interest in the proceeds of the sale.

6.5 The Plaintiff had not established that he has a caveatable interest in the land.

Analysis and Conclusions

7. Section 106 of the Land Transfer Act [Cap 131] states:
   

"106. Any person –

(a) claiming to be entitled or be beneficially interested in a land subject to the provisions of this Act, or any estate or interest there in, by virtue of any agreement or other instrument or transmissions, or of any trust expressed or implied or otherwise howsoever; or;

(b) transferring any land subject to the provisions of this Act, or any estate or interest therein, to any other person to be held in trust may at any time lodge with the Registrar a Caveat in the prescribed form, forbidding the registration of any person as transference or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat."

7.1 In the case of Cambridge Credit (Fiji) Ltd v. WFG Ltd 21 FLR 182 (at page 184 at paragraph [H]):

"That the respondent must however, bring itself within the provisions of section 106 and in order to do this must satisfy the Court that the following are fulfilled:

(i) That it is a person claiming to be entitled to or to be beneficially interested in any land estate or interest under the Act; and

(ii) That it is so claiming by virtue or an unregistered agreement or other instrument or transmission or any trust expressed or implied or otherwise howsoever."

The Privy Council in Eng Mee Yong and Ors v. V. Letcumanan s/o- Velayutham [1980] AC 331:

".....where an application to the court under [section 110] for the removal of a caveat was by the registered proprietor of the land, the caveator had to satisfy the court that there was a serious issue to be tried and, having done so, to show that on a balance of convenience, the status quo should be maintained until trial .....although on such application a conflict of evidence usually indicated that there was a serious issue to be tried and it was normally inappropriate to resolve that conflict on affidavit, the judge was entitled to consider whether the plausibility of the evidence merited further investigation...."

8. In this matter the Plaintiff reliefs on the document marked S1 page 2 to the Affidavit in support which was described as Acknowledgement of Debt an undertaking to pay. I reproduce the said document "ACKNOWLEDGEMENT OF DEBT AND UNDERTAKING.":

TO: Shalendra Singh

12130 101B Ave

Surrey, BC, Vancover V3V7X6

I, Yajbal Singh aka Janen Singh of Manulevu Road, Nadera, hereby acknowledge and admit that I borrowed the sum of $87,500.00 (eighty seven thousand five hundred dollars) from my friend Shalendra Singh and I am presently indebted to Shalendra Singh in the sum of $87,500.00 (eighty seven thousand five hundred dollars).

AND WHEREAS I agree to pay to Shalendra Singh the sum of $87,500.00 (eighty seven thousand five hundred dollars).

DATED this 16th day of September 2011

Signed by:

...............................

Yajbal Singh aka Janen Singh

Witness to signature:

....................................

Name: Shravan Sharma

23 Storck St. Nasese, Suva

Ph: 9992980

This document does not confer any caveatable interest on the Plaintiff. I agree with the submission of the Defendant that this is only a mere acknowledgement of Debt and the submission by the Plaintiff that there is a constructive trust fails. I also wish to state at no stage the Plaintiff had stated in the Affidavit that there had been a Constructive Trust. First time he alleged that there was a Constructive Trust taken up in the submissions at the hearing. However, there is no merit in the submissions.

9. The Plaintiff only had established he had advanced the monies to the Defendant, (which is admitted by the Defendant) there is no iota of evidence to establish that there was a beneficial interest on the property by way of a Constructive Trust. The principles laid in the cases cited by the Plaintiff cannot be applied here. I also quote Halsbury's Laws of England 4th Edition revised Volume 48 paragraph 584 states as follows with regard to Constructive Trust:

"A Constructive Trust attaches by law to specify property which is neither expressly subject to any trusts nor subject to a resulting trust but which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property. Such a person will often hold other property in a fiduciary capacity and it will be by virtue of his ownership of or dealing with that fiduciary property that he acquired the specific property subject to the Constructive Trust."

In this case, the Plaintiff had failed to establish a Constructive Trust and/or any beneficial interest as such I conclude the Plaintiff has no caveatable interest over the property. The Plaintiff had only establish that there was an acknowledgement of a Debt which does not give him a right to lodge a caveat. I agree with the submission of the Defendant's counsel that the Plaintiff's claim is for a simple debt.

Accordingly, I make the following Orders:

1. The originating summons filed on 12th December 2012 dismissed.

2. The 2nd Defendant (Registrar of Titles) is ordered to remove the caveat forthwith.

3. The Plaintiff is ordered to pay summarily assessed costs of $750 to the Defendant within 14 days of this Judgment.

Delivered at Suva this 16th day of January, 2014.

.........................
C. KOTIGALAGE
JUDGE