Hussein v National Bank of Fiji [2001] FJCA 21; ABU0066.1998 (22 November 2001)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU0066 of 1998
(High Court Civil Action No. HBC 0331 of 1994)

BETWEEN:

ABDUL KADEER KUDDUS HUSSEIN
Appellant

AND:

NATIONAL BANK OF FIJI
Respondent

Coram: Shepherd JA, Presiding Judge
Tompkins JA
Smellie JA

Hearing: 14 and 19 November 2001

Counsel: Appellant in Person
MR. S. Parshotam for the respondent

Date of Judgment: Thursday, 22 November 2001

JUDGMENT OF THE COURT

On 5 July 1994 the respondent bank, the plaintiff in the High Court, commenced these proceedings by an originating summons seeking possession of land mortgaged by the appellant to the respondent. The proceedings came before Scott J on 13 July 1998. He gave judgment for the respondent. He ordered the appellant to deliver vacant position of the land to the respondent and granted an injunction restraining the respondent, his servants and agents or employees from interfering with the improvements on the property in any way so as to deplete its value. The appellant has appealed against that judgment.

The application for adjournment

When the appeal came before this court on 14 November 2001, the appellant applied for an adjournment of the hearing of the appeal to the next session of the Court of Appeal. The grounds for that application are in his affidavit filed in support. The appellant said that he had not received the registered letter advising him that the appeal had been set down for hearing on 14 November 2001. When he became aware of this, he wrote on 24 October 2001 to the Registrar of the Court of Appeal requesting the adjournment. He submitted that as a result, he did not have sufficient time to prepare his submissions in support of the appeal. The appellant also said that he was suffering from acute heart problems, that he was on medication and that his condition was to be reviewed in three weeks’ time. He submitted in support a medical report that stated that the appellant was having on and off chest pain. He suffers from ischemic heart disease. He is on medication. He is advised not to do strenuous activities. There is nothing in the report suggesting he is unable to attend at court.

The application for adjournment was opposed by the respondent. The affidavit in support discloses that at the time the respondent commenced its application for possession of the amount owned by the appellant to the respondent under the mortgage was about $165,000. At the date of the making of the affidavit that debt had increased to $369,142.59. No payments in reduction of the debt had been made by the appellant.

The application for adjournment was dismissed. We were satisfied that the appellant had adequate time to prepare his submissions on the appeal when he became aware of the fixture not later than 24 October 2001. We were also satisfied both from the terms of the medical report submitted and from the appellant’s appearance in this court that the appellant’s medical condition would not impair his ability to present his submissions. Further, there was no evidence to show that his medical condition is likely to be less severe by the time the appeal would be heard in February 2002 if the application were granted.

The course of the proceedings

This originating summons, under the provisions of Order 88 of the High Court Rules, was issued on 5 July 1994. Following a hearing in November 1994 Fatiaki J, in a judgement delivered on 9 February 1995, ordered possession of the appellant’s property be given to the respondent. As he noted in his judgment, none of the essential matters were disputed. The respondent’s sole ground of opposition to the summons related to Civil Action 97 of 1992 that the appellant had commenced against the respondent.

In February 1995 the appellant filed a notice of appeal against that judgment. On 13 April 1995 a stay of the order for possession pending disposal of the appeal was granted.

On 7 February 1996 the appeal came before the Court of Appeal. By consent, the appeal was allowed, the decision of the High Court of 9 February 1995 was set aside and the case was remitted to the High Court to be freshly heard by that court. No written reasons for that decision were delivered to, but it appears to have been because the requirements of Order 88 had not been satisfied.

On 14 May 1998 the appellant filed a summons with supporting affidavit seeking to have this action consolidated with two pending actions in which the appellant was the plaintiff and the respondent was the defendant. One of those actions is referred to above.

This application was dealt with by Scott J on 21 May 1998. In his ruling he said that he was satisfied that it would not be in the interests of justice for the three actions to be consolidated. Although there were some common or overlapping issues, consolidation would only lead to confusion and further delay. For those and other reasons he dismissed the application. There has been no appeal against that decision.

The originating summons then proceeded to a hearing. In his decision delivered on 13 July 1998, Scott J said that he was satisfied that none of the related actions provide any ground for staying the proceedings, that there was no obligation on the respondent to have recourse to the debenture before proceeding under the mortgage, that the mortgage was perfectly valid, that the rate of interest charged was unobjectionable, that the appellant was not subjected to any form of duress and that as at 17 April 1997 the appellant owed the respondent $164,823.08.

On 22 July 1998 the appellant filed a summons seeking leave to appeal to the Court of Appeal against that judgment and a stay of proceedings pending the hearing of the appeal. On 16 September 1998 Scott J pointed out that the appellant did not need leave to appeal, and granted the appellant’s application for stay.

The grounds of appeal

The appellant claimed that if his application for adjournment were dismissed, he would not have had sufficient time to prepare his submissions. For that reason we adjourned the hearing to Monday 19 November 2001. The appellant then made oral submissions. To assist the appellant and the court, we invited the respondent to file its submissions in writing in advance of the hearing on 19 November 2001, which it did.

As we understood the appellants submissions, he advanced four principal grounds in support of his appeal. We refer to each.

The trial judge

The appellant submitted that Scott J should have disqualified himself from determining the originating summons on the grounds that he had already delivered a decision in the proceedings. This was an apparent reference to Scott J’s ruling of 21 May 1998 on the application to consolidate the proceedings.

We do not accept this submission. As we have stated above, when the originating summons was first heard in November 1994, that hearing was before Fatiaki J. When the Court of Appeal referred the summons back to the High Court for rehearing, Fatiaki J very properly noted on the file that in the absence of a detailed Court of Appeal judgment, it would be inappropriate for him to rehear the summons. No such consideration arises in respect of the decision Scott J delivered on the application for consolidation. That was a routine interlocutory application of a kind that is commonly and appropriately heard by the judge who subsequently determines the substantive proceedings. There are no circumstances in this case that require a different course.

The other proceedings

The appellant again submitted that this summons for possession should not have been heard separately from the other proceedings he has commenced against the respondent and against the Westpac Bank.

This ground cannot succeed. As we have said, this was precisely the issue before Scott J on the appellant’s application for consolidation. He gave a considered ruling, declining the application. If the appellant were dissatisfied with that ruling, his proper course was to appeal. Further, the principal action on which he relies, No 97 of 1992, was commenced on 24 March 1992. An amended statement of claim was filed in April 1997. Although discovery is complete, the appellant has taken no steps to bring the action on for hearing. When the appellant has failed to prosecute this claim promptly, it can provide no reason for preventing the respondent from exercising its rights under the mortgage.

The debenture

The appellant submitted that before the respondent exercised the powers under the mortgage, it was obliged to execute its powers under the debenture. It was not until the remedies under the debenture had been fully exercised, the appellant submitted, that it was entitled to possession of the land subject to the mortgage. This submission is contrary to a term in the mortgage:

“The monies hereby secured are the same monies as are secured by the document described hereunder and any default thereunder shall be deemed to be a default hereunder and the Bank may upon any default hereunder or thereunder exercise its rights powers and remedies both thereunder and hereunder either together or separately and in such order as it may think fit.”

The documents described under that clause includes the debenture from M Ismail Industries Limited to the respondent. The mortgage expressly states that it has been given by the appellant in favour of the respondent in consideration of loans or advances made by the respondent to M Ismail Industries Limited. The appellant contended that despite the term we have set out, there was an understanding to the effect that the debenture would be executed first. However, he was unable to point to any agreement, letter or document that contained a provision to this effect. In the absence of clear evidence indicating an intention to vary the clause to which we have referred, we conclude that the respondent is entitled, if it chooses to do so, to exercise its powers under the mortgage without first exercising its powers under the debenture.

The validity of the mortgage

The appellant submitted that the memorandum of mortgage was defective and therefore unenforceable because his signature as mortgagor was not witnessed by a person qualified to do so in accordance with the Land Transfer Act. In support he referred to the copy of the memorandum of mortgage annexed to an affidavit by an officer of the respondent. This copy shows the appellant’s signature, but where the witness would sign is blank.

There are several reasons why we are not able to accept this submission. First, this claimed invalidity was not pleaded, was not referred to in the appellant’s affidavit and was in no other way raised by the appellant in the High Court. It was not one of the grounds in the notice of appeal. It was raised for the first time in the appellant’s oral submissions to this court. By r 5 of the Court of Appeal Rules the appellant could apply for leave to amend the notice of appeal by including this ground. No such application has been made. It would only be in exceptional circumstances that such an amendment would be allowed at this stage, particularly where this ground had not been raised in the High Court.

Secondly, the appellant relies on the photocopy of the mortgage annexed to the affidavit. This appears to be a duplicate copy of the original lodged with the Registrar of Titles. If the appellant wished to challenge the validity of the mortgage on this ground, he should have produced the original. For all we know, the original may be properly witnessed.

Thirdly, the mortgage is registered against the title to the land as is evidenced the memorandum by the Registrar of Titles endorsed on the copy mortgage produced and by the memorandum endorsed on the certificate of title recording the registration of the mortgage on August 14, 1987. It is therefore within s 30 of the Land Transfer Act:

“38. No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title.”

“Instrument of title” is defined in s 2 of the Act. It includes a mortgage. If the signature of the appellant on the original mortgage was not witnessed as required by s 122 of the Act, that would be an informality within s 38. The effect of that section in these circumstances is that the validity of this mortgage cannot be impeached on that ground.

Finally, any failure to witness the signature of the appellant as mortgagor, while it may mean that the mortgage should not be registered because of non-compliance with the requirement of s 122, does not affect the validity of the contract between the appellant and the respondent as evidenced by the mortgage. That contract permits the respondent as mortgagee to exercise the powers contained in the contract in the event of default.

Result

None of the grounds advanced by the appellant in support of the appeal have been made out. The appeal is accordingly dismissed. The respondent is entitled to costs which we fix at $750.

If the stay of execution granted on 16 September 1998 has still current, it is discharged.

The property the subject of the mortgage is the home of the appellant and his family. To avoid undue hardship and to give the appellant the opportunity to find alternative accommodation for himself and his family, we order that execution of the order of possession be stayed for one calendar month from the date of delivery of this judgment.

Shepherd JA, Presiding Judge
Tompkins JA
Smellie JA

Solicitors:

Appellant in Person
Messrs. Parshotam and Company, Suva for the Respondent