IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 26 OF 2021

BETWEEN: 			DAVIKA DEVI

PLAINTIFF
AND:				SITAL DIN
1ST DEFENDANT

AND:				REGISTRAR OF TITLES
2ND DEFENDANT

Appearance:	Plaintiff 		-	Mr. Kohli A.
		1st Respondent	-	Mr. Sen A.
		2nd Respondent	-	Mr. Prakash A.

Date of Hearing 	:	7th March, 2022
Date of Judgment 	:	8th March, 2022

JUDGMENT

Introduction

[1]	This is an originating summon seeking subdivision of land known as Lot 10 on DP 1762 comprised of CT 2808(the Property). Plaintiff had filed this action in the capacity of administrarix of estate of Jag Dish Kumar, who was the sole registered proprietor of the Property.  First Defendant had obtained judgment against late Jagdish Kumar, in HBC 62 of 2006 declaring himself, having beneficial interest in half share of the Property.  In the event of sale, first Defendant is entitled to half share of proceeds of sale.  The same judgment stated that there were evidence that structures erected by first Defendant occupied two thirds of the area of the Property.  Judgment in HBC 62 of 2006 held, that ‘interest’ contained in Indemnity, Guarantee and Bailment Act 1881, confined to ‘disposition of a legal interest in land not to claim for equitable interest’.  Hence, parties to this action cannot claim legal interest in the Property.  Plaintiff is a trustee holding equal shares of the Property ‘in trust for ‘first Defendant and estate of Jagdish Kumar.   In the event of sale Plaintiff and first Defendant are entitled to equal shares from proceeds. Subsequent to said judgment another action by way of originating summons sought an order to obtain a transfer of one undivided half share of the Property to first Defendant.   This was by way of enforcement of judgment in HBC 62 of 2006.   In the same action Plaintiff sought subdivision.   Both requests were rejected by court on the basis such claims were not part of judgment in HBC 62 of 2006. Present action of Plaintiff is based on Order 7 rule 2 and Order 45 rule 7 of High Court Rules 1988 , seeking enforcement of judgment in HBC 62 of 2006.  Defendant object to subdivision but seeks for a sale of the Property and apportion the proceeds with due consideration to value of improvements on it.  Judgment of HBC 62 of 2006 ordered neither partition nor a sale.  Declaration of beneficial interest is not a declaration of legal interest.  It is equitable interest distinct from legal ownership.  So by way of enforcement of said judgment orders sought by Plaintiff and first Defendant cannot be obtained.

Facts 

[2]	Plaintiff had instituted this action as executrix of estate of Jagdish Kumar, who is the sole registered proprietor of the Land.

[3]	There were disputes as to facts pertaining to the property and claimed interest presented to court in HBC 62 of 2006. After judgment, neither party appealed against judgment of HBC 62 of 2006.

[4]	Accordingly first Defendant, obtained beneficial interest for half share of the Property. In the event of sale first Defendant is entitled to half of the proceeds in terms of said judgment.

[5]	Plaintiff seeks to subdivide the land.  According to originating summons Order 7 rule 2 and Order 45 rule 7 of High Court Rules of 1988, and inherent power are relied for such an order.

[6]	Defendant objects to subdivision and in the affidavit in opposition stated that subdivision is not practical on the basis of disparity between parties as to the value of improvements on it.

[7]	Defendant state in the affidavit in opposition that he believed that the property should be sold and apportionment be done in accordance with improvements thereon. 

[8]	At the hearing counsel for Plaintiff stated that they are relying on judgment in HBC 62 of 2006 and they are entitled for an order for partition in terms of said judgment.

[9]	Counsel for Defendant objected to partitioning he said there was no provision for subdivision in terms of judgment of HBC 62 of 2006. He also said this request for subdivision was dealt in earlier originating summons in HBC 23 of 2019, hence res judicata.

[10]	Defendant also said some procedural requirements such as scheme plan and consent from local authorities for subdivision were not obtained. 

[11]	Plaintiff counsel in reply said no scheme of partition will be performed without consent of all parties hence that cannot be done in this case as first Defendant had objected to partitioning.

Analysis

[12]	Both parties in their respective affidavits had attempted to have a second bite at the Cherry by alleging disputed facts again in this originating summon. I will avoid such disputed facts as they are irrelevant to the present application and court had already made findings on them. Findings of such facts by court cannot be re-litigated as issue estoppel applies, hence principle of res judicata applies. This principle applies to Plaintiff as well as to Defendant. This is dealt in detail, later in this judgment.

[13]	 This is the third action filed regarding the dispute between parties regarding, the property.  In the guise of enforcement Plaintiff and first Defendant are seeking additional orders which are obviously inconsistent with judgment of HBC 62 of 2006. Cause of action estoppel applies hence orders sought are res judicata.

[14]	First Action was a writ of summons where first Defendant obtained beneficial interest regarding half share of the Land. This was HBC 62 of 2006 and facts were disputed.  

[15]	The court considered in detail conflicting evidence, hence finding of judge on that to be considered final, as there was no appeal against judgment of HBC 62 of 2006.  Parties are now estopped from disputing and seeking orders that clearly contradict with such beneficial ownership as opposed to legal ownership. Legal ownership can be tenancy in common or joint tenancy.  There was no such declaration by court.

[16]	After judgment in HBC 62 of 2006, first Defendant sought enforcement of judgment in terms of identical High Court Rules that Plaintiff is relying for this originating summons. This was in HBC 23 of 2019 and orders sought were stated in the said judgment as; 

“(i). That the first Defendant to execute within 7 days of notice to her transfer of one undivided half of the land known as Lot 10 contained in the Certificate of Title No 28088 to the Plaintiff as tenants in common.
(ii). That first Defendant within 14 days of notice to her to deposit to the office of Maqbool & Company or any other solicitor appointed by the Plaintiff, the original of Certificate of Title No 28088 to be lodged for registration of transfer as stipulated in the prayer above.
(iii). The first Defendant within 14 days of notice to her provide to the Plaintiff Capital Gains Tax Certificate to be lodged with the transfer to the Registrar of Titles for registration of transfer of one half undivided share of Certificate of Title No. 28088.
Plaintiff had filed this action by way of originating summons in terms of Order 7 rule 2 and Order 45 rule 7 of High Court Rules of 1988.
(iv). That the first Defendant be ordered to pay all costs and other statutory disbursements necessary to enable the Plaintiff to register himself as owner of undivided half share of Certificate of Title No 28088.
(v). That the first Defendant pay off costs of these proceedings.
(vi). Such other relief as this court may deem just and expedient.”

[17]	At the conclusion of that action all the above orders were struck off and cost was awarded in favour of Plaintiff.

[18]	Plaintiff had filed originating summons on identical High Court Rules of struck off action. They are Order 7 rule 2 and Order 45 rule 7 of High Court Rules of 1988.

[19]	Order 7 rule 2 of High Court Rules 1988 states,
 
‘Form of Summons, etc (O.7, r.2) 
2.-(1) Every originating summons (other than an ex parte summons) shall 
be in Form No. 3 or, if so authorized or required, in Form No. 4 in Appendix 
[1],  and   every   ex parte   originating   summons  shall  be   in  Form  No.  5 
in  Appendix (1). 

(2) The party taking out an originating summons (other than an ex parte 
summons) shall be described as a plaintiff, and the other parties shall be 
described as defendants.’

[20]	The above High Court Rule deals with the form of originating summons, hence no application to reliefs sought.

[21]	Order 45 of High Court Rules 1988 deals with ‘Enforcement of Judgment’ and Order 45 rule 7 of High Court Rules 1988, deals with disobedience of a court order and state;

“Court may order act to be done at expense of disobedient party (O.45, r.7)
 
7. If an order of mandamus, a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.”

[22]	I do not need to  labour that the above High Court Rule has no application to present action seeking enforcement, as there was no disobedience or non-compliance alleged against Defendant. So under what provision present application was made?  Inherent power of the court cannot apply in this action as orders sought are in the nature of claims of legal ownership as opposed to beneficial ownership.

[23]	Plaintiff is relying on judgment in HBC 62 of 2006, where a declaratory judgment was obtained in favour of Defendant, declaring beneficial ownership.

[24]	This judgment was registered on the title too. So the beneficial interest of half share of the property declared by court is notified, to prospective buyers as to equitable interest of first Defendant. This is not a legal ownership of the Land. This is beneficial ownership. This was clearly stated in the judgment of HBC 62 of 2006. First Defendant is entitle for half share of proceeds in a sale of the property.

[25]	It was clear that there was nothing to be done by first Defendant and this was stated in judgment of HBC 23 of 2019 at paragraph 31 and accordingly it was struck off. There was no appeal against this judgment.

[26]	In the same judgment at paragraph 34 stated that the request of Plaintiff for subdivision of the land was also dismissed.  Accordingly, cause of action estoppel applies. The principle of res judicata applies.

[27]	 Hulsbury Laws of England (Civil Procedure) Vol 11 (2020) under 1568. Basis for doctrine of res judicata stated,

“The doctrine of res judicata provides that, where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be reopened by parties bound by the decision, save on appeal. It is most closely associated with the legal principle of 'cause of action estoppel', which operates to prevent a cause of action being raised or challenged by either party in subsequent proceedings where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties (or their privies), and having involved the same subject matter. However, res judicata also embraces 'issue estoppel', a term that is used to describe a defence which may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, but, in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. For this reason, res judicata has been described as a portmanteau term which is used to describe a number of different legal principles with different juridical origins upon which the courts have endeavoured to impose some coherent scheme only in relatively recent times.

Cause of action estoppel is absolute only in relation to points actually decided on the earlier occasion and there is no justification for the principle applying in circumstances where there has been no actual adjudication of any issue and no action by a party which would justify treating them as having consented, either expressly or by implication, to having conceded the issue by choosing not to have the matter formally determined. Equally, an exception to issue estoppel arises in the special circumstance where there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings”.(footnotes removed)

[28]	The contention of first Defendant’s counsel that request for subdivision was res judicata as court had already decided on originating summons filed in terms of Order 7 rule 2 and Order 45 rule 7 of High Court Rules 1988, is correct.  These are the identical provisions Plaintiff now relies for the present action. HBC 23 of 2019 was between same parties regarding the same subject matter and, Plaintiff sought subdivision in terms of identical High Court Rules and it was rejected. So that relying on same judgment, same reliefs cannot be made again under doctrine of res judicata, as it is cause of action estoppel.

[29]	Defendant in the affidavit in opposition had sought for a sale of the Property. This was objected by Plaintiff in affidavit in reply. This again fails, as no sale was ordered in HBC 62 of 2006. It only declared beneficial interest in half share of the Property in favour of fist Defendant. The judgment of HBC 62 of 2006 further said ‘in the event of sale both (parties) are entitled to share proceeds of sale equally’. The court had not declared a sale hence no order of court was breached for invocation of jurisdiction in terms of Order 47 rule 7 to order a sale. Accordingly this request of Defendant fails. But in a sale by trustee (Plaintiff) first Defendant is entitled only half of the proceeds.

[30]	 First Defendant had not only sought sale, but also distribution of proceeds according to improvements on that. This is clearly in conflict with the judgment where it was held that in the event of sale proceeds of such sale should be equally divided.  When the court had awarded beneficial interest in half share of the property improvements were considered so it cannot be considered again in sale. Such an effort will be double dipping.  Cause of action estoppel applies.  Request for distribution of proceeds was already dealt and issue estoppel applies, hence res judicata.  Paragraph 28 of judgment of HBC 62 of 2006 is clear on this issue and issue estoppel applies.  Even if I am wrong, on above the request for sale of land by first Defendant fails as it was clearly not an enforcement of judgment of HBC 62 of 2006.

[31]	First Defendant had enjoyed major portion of land without any payment to Plaintiff and or her late husband.  He had no legal ownership to land he possess.  So the court had considered this and quantified equitable interest to half of proceeds, in the events of a sale.  To ask this to vary is beyond jurisdiction of the court. Doctrine of res judicata applies.

[32]	Plaintiff can sell CT 2808 as trustee of the estate of registered proprietor.  Beneficial owner cannot stand in way for the sale.  Plaintiff is entitled only half of the proceeds from sale.  First Defendant is entitled to remaining half of the proceeds of the sale.  He had already possessed major part of land without any legal ownership to the Property.  He was compensated in equity by awarding half share of proceeds in a sale by sole proprietor (i.e. Plaintiff).  Both parties are now estoppel from claiming outside judgment of HBC 62 of 2006.

Conclusion

[33]	Originating summons is seeking partition of the property in terms of Order 47 rule 7 in order to enforce judgment delivered in HBC 62 of 2006. This fails on three grounds; the identical request was rejected in HBC 23 of 2019. There was no order for partitioning in HBC 62 of 2006, hence no enforcement for partitioning can be granted in terms of Order 47 rule 7 of High Court Rules 1988. Lastly, there was no declaration of legal ownership to first Defendant so no action for partition can succeed. First Defendant‘s request for sale and apportionment of proceeds in terms of improvements on the property also dismissed for reasons given. Originating summons struck off. Considering circumstances of this case Plaintiff is ordered to pay a cost of 1,000 to first Defendant, within 21 days. Second Defendant is a nominal party and not filed any objections and I do not award any cost for second Defendant.

Final Orders

a.	Originating Summons struck off.
b.	First Defendant’s request for sale of the property and distribution in proportion to improvements is also rejected. 
c.	Plaintiff is ordered to pay a cost of $1,000 to first Defendant within 21 days.

Deepthi Amaratunga
						Judge