IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA

CIVIL ACTION NO. 103 of 2014

BETWEEN:

RAJ DATT of Navakai, Nadi, Fiji, Retired.
PLAINTIFF/RESPONDENT

AND:

SUNIL DATT of Navakai Nadi, Fiji Supervisor in his personal capacity and as one of the Administrator of the ESTATE OF RUDRA DATT father's name Badal of Navakai, Nadi, Fiji, Cultivator and as one of the Executor and Trustee in the ESTATE OF SHEELA father's name Angu Prasad of Navakai, Nadi, Domestic Duties.
1ST DEFENDANT/APPLICANT

AND:

RAM DATT of Navakai Nadi, Fiji Carpenter in his personal capacity and as one of the Administrator of the ESTATE OF RUDRA DATT father's name Badal of Navakai, Nadi, Fiji, Cultivator and as one of the Executor and Trustee in the ESTATE OF SHEELA father's name Angu Prasad of Navakai, Nadi, Domestic Duties.
2ND DEFENDANT

AND:

ANIL DATT of Navakai Nadi, Fiji Driver in his personal capacity and as one of the Administrator of the ESTATE OF RUDRA DATT father's name Badal ofNavakai, Nadi, Fiji, Cultivator and as one of the Executor and Trustee in the ESTATE OF SHEELA father's name Angu Prasad of Navakai, Nadi, Domestic Duties.
3rd DEFENDANT

AND:

MANJULA WATI of Navakai Nadi, Fiji, Domestic Duties in her personal capacity and as one of the Administrator of the ESTATE OF RUDRA DATT father's name Badal of Navakai, Nadi, Fiji, Cultivator and as one of the Executor and Trustee in the ESTATE OF SHEELA father's name Angu Prasad of Navakai, Nadi, Domestic Duties.
4TH DEFENDANT

AND:

DIRECTOR OF LANDS
5TH DEFENDANT

Counsel : Ms Barbra Doton for applicant
 Respondent in person
Date of Hearing :12 October 2015
Date of Ruling : 27November 2015 

RULING

Introduction 

[01]This is an application to set aside an order made on 11 May 2015.

[02] Sunil Datt, the 1st defendant (hereinafter may be called as 'the applicant') by notice of notion filed on 5th June 2015 ('the application')seeks the following Orders:

1.	An order that the order made by this Honourable Court on the 11th day of May 2015 be wholly set aside.

2.	An order that the first defendant be given leave to unconditionally defend the Notice of Motion filed on the 5th day of May 2015.

3.	An order that the costs of this application be paid the plaintiff.

[03] The applicant relies on the affidavit sworn by him on the 4th day of June 2015 and filed in the proceedings herein on the 5th day of June 2015.

[04] Raj Datt, the plaintiff (hereinafter may be called as 'the respondent') opposes the application and has filed an affidavit in opposition on the 6th day of July 2015.

[05] At hearing, both parties orally argued the matter. Only applicant tendered written submission. The respondent did not tender any written submission or make application to file one on a later date.

Background

[06]The respondent lodged a caveat against the land covered under Crown Lease No 14796. This was duly registered in the memorial of the title by the Registrar of Title. The applicant made an application to the Registrar of Title for the removal of that caveat. The Registrar of Title acting under section 110 (1) of the Land Transfer Act ('the LTA') served the notice of removal of caveat on the respondent. That notice informed the respondent that after lapse of 21 days from the date of service of the notice the caveat will be removed, unless an order from the High Court to the contrary has been served upon the Registrar of Titles.

[07] On 5 May 2015 the respondent made an ex parte application seeking a stay order on the Notice of Removal of Caveat dated 28 April 2015. Though, extension of time beyond 21 days could be granted ex parte considering the urgency of the matter the court converted the ex parte application into an inter partes application and ordered the same to be served on the applicant abridging the time for service to one day. The application came up for hearing on 11 May 2015 when there was no appearance for or by the applicant (respondent in that application). The matter was then heard ex parte and the court issued order extending the time mentioned in the notice of removal of caveat. The extension was granted until further order of the court. The current application is to set aside that order.

Preliminary Issues:

[08] The applicant raised two preliminary issues namely irregularity of service and lack of consent of the Director of Lands.

[09] Irregular Service: Firstly I will deal with the issue of irregular service. The respondent filed the ex parte application on 5 May 2015 which was converted into an inter partes application with the returnable date of 11 of May 2015. The respondent served the application on the applicant on 9 May 2015. 

[10]The applicant deposes in paragraphs 14, 15, and 16 of his affidavit in support about the service as follows:

14. THAT I am advised by my solicitors and verily believe that the said Order ought not to have been granted as the Application was issued by the High Court registry on the 5th day of May 2015 however the plaintiff through his bailiff only served the Application on me on the 9th day of May 2015 when the matter was to be called on the coming Monday, that is, the 11th day of May 2015.

15. THAT it was unjust for the plaintiff to hold onto the Application for 4 days without serving me the same when the plaintiff was fully aware that the matter was coming up on the 11th day of May 2015.

16. THAT the Plaintiff was fully aware that I represented by Messrs Rams Law and could have served my solicitors with the Application immediately upon it being issued from the High Court Registry so as to allow me and my solicitors to prepare for the hearing on the 11th May 2015.

[11] Ms Barbra, counsel for the applicant submits that the Plaintiff only served the Notice of Motion one day prior to the return date and that day was a Sunday [sic] therefore the service of the notice of motion was irregular and therefore the orders made in absence of the first defendant ought to be struck out due to the irregular service. She relies on Order 8 Rule 2 (2) of the High Court Rules ('the HCR').

[12] O.8, r. 2 (2) requires that unless abridged by the court a party must give 2 clear days notice of a motion. Rule 2 (2) states:

"(2) Unless the court gives leave to the contrary, there must be at least 2 clear days between the service of notice of a motion and the day named in the notice for hearing the motion."

[13] It is to be noted that the court may at its discretion abridge the 2 clear days notice envisaged in rule 2 (2). It states that unless the court gives leave to the contrary, there must be at least 2 clear days between the service of notice of a motion and its hearing.

[14] After converting the respondent's ex parte notice of motion to an inter partes notice of motion, the court issued the application (motion) for service. At the same time the court also abridged the time for service to one day in exercising its discretion granted in O.8, r. 2 (2).The respondent served the application on the applicant on 9 May 2015 which fell on Saturday and the application was called on the following Monday which left only a day in between.

[15] The respondent served his application on the applicant in compliance of the court order. The service is proper. I therefore reject the preliminary issue that the service was irregular.

[16] Consent of Director of Lands:Another preliminary issue raised by the applicant is that consent of the Director of Lands was not obtained before the court deals with any lease. The applicant relies on section 13 of the Crown (now State) Lands Act, Cap 132 which sates: 

(1)	Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

 (hereinafter called a protected lease) it shall not be a lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Direction of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

 Any sale, transfer, sublease, assignment. Mortgage or other alienation or dealing effected without such consent shall be null and void.

[17] Ms Barbra submitted that section 13 (1) of the State Lands Act requires the consent of the Director of Lands before a Court shall deal with any lease. She further submitted that there is no evidence before the Court that the plaintiff has obtained the Director of Lands' consent to institute legal proceedings before the application was dealt with therefore the said Order is null and void in absence of such consent. 

[18] There is no merit in the above argument. As such I reject that argument. The court on the 11th day of May 2015 made order on the respondent's application to extend caveat as follows:

1.	There will be an order extending the time mentioned in the notice of removal of caveat dated 28 April 2015 and issued by the Registrar of Titles under no. 812569.

2.	The extension is granted until further order of the Court.

[19] At hearing of the current application when the consent issue was raised, the respondent showed a copy of the application for registration of caveat. I had an opportunity of looking at it. I then found that the Director of Lands had given consent to apply for registration of caveat. It is seen that the respondent had obtained the necessary consent of the Director of Lands before applying for registration of caveat. Hence, the contention that the impugned order was null and void in the absence of consent is without merit and should be rejected.

Caveatable Interest

[20] I now return to the issue of caveatable interest.

[21] Ms Barbra submits that the plaintiff (respondent) has failed to show with plausible evidence that he has a caveatable interest in the property (Crown Lease No.14796).

[22] The respondent's claim against the defendants is for a declaration that the leases issued to the defendants be declared null and void.

[23] In affidavit in support sworn on 5 May 2015 the respondent deposes that, the defendant's father who is the plaintiff's brother, promised the plaintiff equal shares in the property that belonged to their father (the defendant's grandfather). The property belonging to the defendant's grandfather was sold and the defendant's father purchased another property in Crown Lease No. 10093 and when the defendant's father passed away the plaintiff received a letter from Sheela Wati (the defendant's mother) stating that the plaintiff will be properly re-allocated on the said land (CL 10093) when she will get her probate under her name.

[24] The respondent's claim arises from a Deed of Family Settlement that gives him a legal or equitable right on the property.

[25] In 2004, Sunil Datt, the applicant issued proceedings in the High Court at Lautoka (HBC 189 of 2004 Ltka) to eject the respondent (Raj Datt) from the property. In that case the High Court delivered its judgment on 28 June 2005 in favour of the applicant ordering the respondent to give up vacant possession to the applicant. Raj Datt appealed that judgment to the Court of Appeal (Civil Appeal No: ABU 32 of 2013). The Court of Appeal, allowing the appeal, set aside the judgment of the High Court by its judgment of 5 March 2014. What the Court of Appeal (Hon. Mr Justice Calanchini (as he then was)) in paras 20 & 21 observed in the appeal is relevant to the current proceeding: I would reproduce those paras for convenience:

"... 
[20] The material before this court indicated that Sheela Wati, the wife of Rudra Datt and the Respondent's mother, obtained letters of administration of the estate of Rudra Datt. She then became registered lessee on transmission by death as the administrator of the estate of Rudra Datt on 3 May 1991. As such she was required to perform function of trustee of the constructive trust under the Deed of Settlement until a new trustee or trustees were appointed. It would appear that after the death of Rudra Datt, Sheela Wati eventually subdivided Crown Lease 10093 in favour of her three children in breach of the Deed of Settlement. It was a result of that subdivision that the respondent acquired Crown Lease 14796.The material that was subsequently admitted into evidence would indicate that at the very least Sheela Wati was aware of the circumstances under which the Appellant had remained in possession of a portion of the head lease land that was once described as Crown Lease 10093.

[21] In my judgement there was sufficient evidence before the learned Judge to indicate that fraud was an issue under section 40 of the Land Transfer Act that may be sufficient to defeat the title held by the respondent which might otherwise be described as indefeasible under section 39 of the Land Transfer Act." (Emphasis provided)

[26] It will be noted that the applicant's title to the property itself is under attack on ground of fraud. If fraud were proved that may be sufficient to defeat the title held by the applicant.

[27] In the actual action, the plaintiff (respondent) had obtained default judgment against 1st (applicant), 2nd, 3rd and 4th defendants. Only 1st defendant made application to set aside the default judgment entered against him. Subsequently, the court set aside the default judgment against the 1st defendant.

[28] Section 106 of the Land Transfer Act is relevant to the current proceeding. That section defines who could lodge a caveat in this way: 

'106. Any person-

(a)claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, 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 transferee or proprietor of, and of any 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.' (Emphasis added).

[29] In Cambridge Credit (Fiji) Limited v. W.F.G Limited 21 FLR 182 Fiji Court of Appeal at page 184 sets out the requirements to be satisfied by a caveator to come within the provisions of Section 106 of Land Transfer Act Cap 131 as follows:- 

"(1) 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 

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

[30] The respondent in this case claims that he is entitled or to be beneficially interested in the property by virtue of an unregistered agreement (in this instance by virtue of a Family Arrangement). Therefore the respondent falls within the definition of section 106 of the Land Transfer Act, as a person who could lodge a caveat. This follows that the respondent has a caveatable interest in the property.

Conclusion

[31] For all these reasons, I am satisfied that the respondent hasa caveatable interest in Crown Lease No. 14796. Accordingly, I dismiss and struck out the application to set aside orders made on 11 May 2015. I also dismiss and struck out the application made to remove the caveat lodged by the respondent. I would order the applicant to pay cost to the respondent in the sum of $500.00 which is summarily assessed. The cost is to be paid within 28 days of the date of this ruling.

Result

[32] The results of this ruling are as follows:

1.	Application to set aside the orders made by this court on 11 May 2015 is dismissed and struck out.

2.	Application to remove the caveat lodged by the respondent is refused.

3.	Applicant will pay summarily assessed cost of $500.00 to the respondent within 28 day of the date of this ruling.

M H Mohamed Ajmeer
JUDGE
At Lautoka
27 November 2015