Tirikula v Tirikula [2014] FJCA 195; Misc.19.2012 (7 November 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
MISC. NO. 19 OF 2012
(High Court HBC 374 of 2008)

BETWEEN:

CAMARI TIRIKULA
Appellant

AND:

PENI TIRIKULA
ATTORNEY GENERAL OF FIJI
REGISTRAR OF TITLES
Respondents

Coram : Calanchini P

Counsel : Mr R. Matebalavu for the Appellant
Mr I V Tuberi for the First Respondent
Ms M Devi for the Second & Third Respondents

Date of Hearing : 20 August 2014
Date of Judgment : 7 November 2014

JUDGMENT

[1] This is an application by the Appellant for an order that the time for filing and serving a notice of appeal be enlarged. The application was made by summons filed on 12 October 2012 and was supported by an affidavit sworn on 12 October 2012 by Apisalome Rabo Matebalavu. The application was opposed. The Respondent filed an answering affidavit sworn on 28 April 2014 by Peni Tirikula. A reply affidavit sworn on 4 June 2014 by Apisalome Rabo Matebalavu was filed on behalf of the Appellant. The parties filed written submissions prior to the hearing of the application.

[2] The Court's jurisdiction to determine the application is derived from section 13 of the Court of Appeal Act Cap 12 (the Act) and Rule 27 of the Court of Appeal Rules (the Rules). Pursuant to section 20 (1) of the Act the power of the Court of Appeal to make such an order may be exercised by a single judge of the Court.

[3] The relevant background facts may be stated briefly. The Appellant is now deceased and will be referred to in this judgment as the deceased. The deceased had commenced proceedings in the High Court by originating summons seeking a declaration that the joint tenancy between her and the First Respondent over the land in Certificate of Title 10975 had been severed in equity. There were other ancillary orders sought by the deceased. The Appellant died while the action was pending. By a Ruling dated 3 March 2011 the Master of the High Court ordered that the executors of the deceased's estate be substituted as the Plaintiff. The effect of the Master's order was that Koresi Toaisi and Koresi Tuivanuavou Toaisi Junior became the substituted Plaintiffs. The First Respondent was an adopted son of the deceased. He was not an executor of the estate.

[4] It would appear that on 22 March 2001 the First Respondent charged what the learned trial Judge referred to as his undivided 1/3 share of the property held as joint tenant to FNPF in order to discharge an earlier created charge to Home Finance Co. Limited. The deceased alleged that her signature on the 2001 document was a forgery. However the allegation was not made by the deceased until 2008.

[5] The learned High Court Judge concluded that the substituted Plaintiffs had not established that the deceased's signature had been forged or that the First Respondent had a fraudulent intention. The learned Judge also concluded that the deceased had failed in her claim of severance in equity. The claim for severance was based on two grounds. The first ground was that the joint tenancy was severed by virtue of service on the First Respondent of notice given by letters dated 15 April 2008 and 4 August 2008. The second ground was the registration on 22 March 2001 of a charge granted to Fiji National Provident Fund (FNPF) by the First Respondent over one undivided third share of the property. Since the claim based on severance failed and because the First Respondent became the sole proprietor of the land upon the death of the remaining joint tenant, the deceased, the claims were dismissed with each party to pay their own costs.

[6] Before turning to the principal issue in the application and the principles to be considered, I consider it appropriate to briefly comment on the position when a plaintiff is substituted.

[7] The substantive law that enables an action to survive the death of a plaintiff is to be found in section 2 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cat 27. There appears not to be any dispute that the present proceedings fall into the category of causes of action that do survive. Machinery is provided by the Rules of the High Court for the substitution in place of a deceased plaintiff in a cause of action that survives. The Rules enable the action to be reconstituted following the death of a plaintiff.

[8] In this case the Master granted the application. The effect of the Master's order under Order 15 Rule 8 was to activate Order 15 Rule 9. So far as is relevant to the present case Rule 9 provides that when a person is to be made a party in substitution for another party under Rule 8, that person shall not become a party until the order has been noted in the cause book. There is no material before me to indicate that there has been compliance with that Rule. Nor is there any material to indicate compliance with Order 15 Rule 8 (4) that requires a copy of the Order made by the Master to be served on every other person who is a party to the action nor is it apparent that the Master directed otherwise in respect of that requirement.

[9] There is authority for the proposition that the title to all future proceedings after the order has been made should be in the altered form. The practice is that the name of the former party should not be struck out and that the title of all future proceedings be altered in accordance with the Order. (See Seear –v- Lawson [1880] UKLawRpCh 285; (1881) 16 Ch. D 121). The importance of compliance with these Rules was noted by the Court of Appeal in Singh –v- Grants Waterhouse Agency and Others [2000] 1 FLR 292 at page 296:

"The identity of the true plaintiff or plaintiffs was no technicality. The plaintiff would be responsible for costs and for the usual undertaking as to damages which had been given to obtain the interlocutory injunction."

[10] It is apparent that not all of the requirements of Order 15 have been followed. The learned Judge has not commented in his judgment on the title of the proceedings coming before him for final hearing. The title of the action had not in any way been altered to reflect the Order made by the Master or the requirements of the Rules. This should have been rectified. The name of the Appellant should have appeared as "Koresi Toaisi and Koresi Tuivanuavou Toaisi Junior as executors of the deceased Plaintiff Camari Tirikula."

[11] In determining an application for an enlargement of time the Court has a discretion which must be exercised judicially. In McCaig v Manu (unreported CBV 2 of 2012; 27 August 2012) the President of the Supreme Court (Gates CJ) in delivering a ruling in a similar application set out the five factors that are usually considered to ensure that "the judicial discretion is exercised in a principled manner." They are (a) the length of the delay; (b) the reason for the delay; (c) whether there is a ground of merit justifying the appellate court's consideration, (d) where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed and (e) if time is enlarged, will the respondent be unfairly prejudiced? These are factors that assist the Court to determine whether it would be just in all the circumstances to grant or refuse the application.

[12] In the present case the length of the delay is determined by calculating the length of time between the last day on which the Appellant was required to have filed and served a notice of appeal and the date on which the application for an enlargement of time was filed and served.

[13] It is against the judgment of the High Court delivered on 24 April 2012 that the Appellant now seek leave to appeal out of time. The Appellant filed the application for leave to appeal out of time on 12 October 2012. For reasons that cannot be attributed to the Appellant the summons was not served until sometime in early 2014 prior to the first mention date on 20 March 2014.

[14] Pursuant to Rule 16 of the Rules the Appellant was required to file and serve the notice of appeal within 42 days from the date on which the judgment in the High Court was pronounced. The effect of the Rule is that the Appellant was required to file and serve the notice of appeal on the Respondent by 5 June 2012. The length of the delay in this case is (putting aside the issue of service of the application) the period between 5 June 2012 and 12 October 2012, a period of just over 4 months.

[15] The explanation for the delay is set out in the affidavit in support of the application (paras 7 to 11). The explanation relates to the difficulty in obtaining instructions and a misunderstanding on the part of Counsel as to the Rules governing the filing and serving of the notice of appeal. The explanations do not appear to be sufficiently detailed to constitute a full and frank explanation. In any event neither matter justifies or excuses non compliance with the Rules to the extent that exists in this case. The explanation is wholly unsatisfactory for a delay which can properly be described as substantial.

[16] As a result it is necessary to determine whether the Appellant has established that there is a ground of appeal that will probably succeed. In the supporting affidavit the Appellant has exhibited a draft notice of appeal setting out nine grounds upon which the personal representatives propose to rely in the event that leave is granted. These grounds of appeal are somewhat repetitive and convoluted. The written submissions filed by the parties did not address this factor in any detail and were as a result of little assistance to the Court. It is therefore more convenient to approach the question by first considering the relief claimed by the deceased.

[17] In the originating summons filed on 27 October 2008 the deceased sought from the Court declarations that the joint tenancy over Lot 23 DP 2583 being the land described in CT 10975 had been converted into a tenancy in common and severed in equity. The land in question was initially owned by the deceased's husband (also deceased), the deceased and the First Respondent as joint tenants. After the death of her husband, the deceased and the First Respondent became the surviving joint tenants. It would appear that at some stage the deceased wanted to ensure that her interest did not pass to the First Respondent as the sole survivor on her death. This consequence of co-ownership as joint tenants could be avoided if ownership was by way of tenancy in common.

[18] In order to achieve this result the deceased relied on two matters. The first was the notice given in two letters in 2008. The letters sent to the First Respondent by the deceased's legal practitioners in effect amounted to a declaration that the deceased desired that co-ownership should no longer be by way of joint tenancy but as tenants in common. The second was that the joint tenancy had been severed in equity as a result of the charge granted by the First Respondent over what has already been described as his "undivided 1/3 share of the property held as joint tenant" to Fiji National Provident Fund (FNPF).

[19] The learned Judge held that the Appellant had failed to establish that the joint tenancy had been severed in equity as a result of the charge which had been granted by the First Respondent over his interest in the property. It would appear that the learned Judge had also rejected the deceased's claim that the joint tenancy had been converted into a tenancy in common by notice.

[20] In his judgment the learned Judge has referred to section 34 of the Land Transfer Act Cap 131. That section is worthy of note for two reasons. First, it provides that co-ownership of land is presumed to be as tenants in common unless a contrary intention is expressed in the instrument of title. Secondly, as tenants in common they are presumed to own land in undivided equal shares unless a contrary intention is expressed in the instrument of title.

[21] Although there is no reference in the judgment to the fact, it appears not to be disputed that in this case the instrument of title indicated that co-ownership was as joint tenants. The issues before the learned Judge in the court below were (1) whether the joint tenancy had been severed by the notice give by the deceased to the First Respondent and (2) whether the registration of the charge granted by the First Respondent over his 1/3 undivided share had severed the joint tenancy in equity.

[22] At this stage it is necessary to emphasise that the land in question is Torrens title land and is as a result subject to the provisions of the Land Transfer Act Cap 131.

[23] The first issue is whether the notice in writing communicated to the First Respondent that the deceased wanted the joint tenancy to be brought to an end and the land held as tenants in common severed the joint tenancy. Unlike in England there is no statutory provision in Fiji which might have otherwise determined the issue. Consequently I consider that the decision of the High Court of Australia in Corin –v- Patton (1990) 169 CLR 540 correctly states the position and should be regarded as the position in Fiji. The per curiam head notes states:

"A unilateral declaration of intention or other unilateral act inconsistent with the continuation of a joint tenancy does not sever joint tenancy."

[24] In a joint judgment Mason CJ and McHugh J at page 548 provided the basis for that conclusion by setting out four seasons why the position taken by the Court of Appeal in Burgess –v- Rawnsley [1975] Ch.429 should not be followed in Australia. The first reason was related to a provision in the Law of Property Act 1925 (UK) for which there was no equivalent in Australia and for which there is no equivalent in Fiji. The judgment then continues:

"_ _ _ Secondly, as a matter of history and principle, the severance of a joint tenancy can only be brought about by the destruction of one of the so-called four unities: See Blackstone, Commentaries on the Law of England (1778), vol. 2, pp.185 – 186. Unilateral action cannot destroy the unity of time, of possession or of interest unless the unity of title is also destroyed, and it can only destroy the unity of title if the title of the party acting unilaterally is transferred or otherwise dealt with or affected in a way which results in a change in the legal or equitable estates in the relevant property. A statement of intention without more does not affect the unity of title. Thirdly, if statements of intention were held to effect a severance, uncertainty might follow; it would become more difficult to identify precisely the ownership of interests in land which had been the subject of statements said to amount to declarations of intention. Finally, there would then be no point in maintaining as a separate means of severance the making of a mutual agreement between the joint tenants."

[25] For those reasons I have concluded that the notice in the two letters sent to the First Respondent did not convert the joint tenancy into a tenancy in common.

[26] Turning now to the second issue. It would appear that what the First Respondent granted to FNPF to secure the loan was a charge. The copy certificate of title shows that the charge was registered on 22 March 2001. The effect of registration of an instrument is set out in section 37 of the Land Transfer Act.

[27] There is no definition of a "charge" in the Land Transfer Act. However a mortgage is defined in section 2 of the Act as any "charge on land or any estate or interest therein created under the provisions of this Act" for the purposes of, amongst other things, securing the repayment of a loan or satisfaction of any existing debt. Encumbrances and instrument of title are defined so as to include a mortgage. Section 63 of the Act alters the position that otherwise exists with respect to general law land by providing that:

"A mortgage registered in accordance with the provisions of this Act shall have effect as a security but shall not operate as a transfer of the land, or of the estate or interest therein charged."

[28] On the basis that the rights conferred upon a chargee under a charge registered under the Act and endorsed on the certificate of title are no greater than the rights given to a mortgagee under a mortgage created under the Act, it follows that a charge also takes effect as a security only and does not operate as a transfer of the land or of any interest or estate in the land thus charged. The position at law is that the grant of a charge by one of a number of joint tenants does not sever the joint tenancy. The reason being that since a charge does not operate as a transfer of the land or of any interest or estate in the land therein charged (i.e a conveyance), there is no change in the legal interest or estate in the land and hence the unity of title remains in tact or unbroken. See: Lyons –v- Lyons [1967] VR 169 at 174; Hedley –v- Roberts [1977] VicRp 33; [1977] VR 282 at 286 – 88 and Corin –v- Patton (supra) at page 548. There is no transfer at law of any interest in the land the subject of the charge. The grantor of the charge, that is, one of the joint tenants, remains one of the registered joint proprietors as joint tenant.

[29] However in my view that is not necessarily the end of the matter. In the event that the charge given by the First Respondent had not been registered, it would have been possible for the chargee (FNPF) to lodge a caveat to protect its interest that arose out of the charge. Pursuant to section 106 of the Land Transfer Act a person claiming to be beneficially interested in any land or any estate or interest therein by virtue of any unregistered agreement or other instrument may lodge a caveat to prevent registration of any other instrument affecting the interest or estate of the caveator. An unregistered charge (as an equitable charge) gives the chargee sufficient interest in land to protect it by lodging a caveat. (See: Arco Financial Services Ltd v White [1977] Vic. Rp. 62; [1977] VR 561 and McMillan v Dunoon [2005] VSC 440). It seems to me that it is arguable that it follows that a registered charge, although not effective to transfer any interest in the land so as to destroy the unity of title and sever the joint tenancy at common law may nevertheless sever the joint tenancy in equity. The application raises an issue which should be considered by the Full Court. There is at this stage no material before the Court to support an argument that any prejudice caused to the Respondent should prevent an order being made in favour of the Appellant.

[30] I have concluded that in all the circumstances it is just to grant the Appellant an enlargement of time. However such an indulgence is conditional upon the Appellant paying to the Respondent the sum of $1800.00 costs within 21 days from today.

Order:

1. Application for an enlargement of time is granted on condition that the Appellant pay to the Respondent the sum of $1800.00 as costs within 21 days from the date of this judgment.
   
2. The Appellant is required to file and serve a notice of appeal within 28 days from the date of this judgment.
   
3. Thereafter the appeal is to proceed in accordance with Rules 17 and 18 of the Court of Appeal Rules.
   

Hon. Mr Justice W. D. Calanchini
President, Court of Appeal