Ram v Wati [2007] FJHC 4; HBC222.2004L (27 February 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 222 OF 2004L

NO. 36 OF 2007

BETWEEN

DAYA RAM
1st Plaintiff

AND

DHARAM RAJI
2nd Plaintiff

AND

SATYA WATI, ATISH RAM, NITESH RAM
Defendants

Appearances: No Appearance for plaintiffs
Suresh Verma & Co. for the defendants

Date of hearing: 27 February 2007
Date of judgment: 27 February 2007

Ex-tempore Judgment

[1] This action is listed for trial today. There is no appearance by the plaintiffs, or by a representative of the Estate of the 1st named plaintiff or by counsel on record for the plaintiffs. The defendants are here and ready to proceed with the trial.

[2] I also have before me a summons (inter-parte) returnable 23 February 2007 which I adjourned to today. The summons, filed by the defendants, seeks various orders – for the purposes of this judgment, I deal only with prayer 2 – "That Caveat No. 562447 lodged by Sunil Chandra Ram against Housing Authority Lease No. 218435 (Lot 47 on DP 4128) be removed forthwith".

[3] Learned Counsel for the defendants, Mr. Verma submitted that:

(i) the caveator has no caveatable interest in the land whatsoever

(ii) the caveat and/or registration thereof contravenes the provisions of Section 112 of the Land Transfer Act in that it is a second caveat affecting the same land in the same right and for the same cause, where an earlier caveat had been removed by order of the Court, viza viz by order of Finnigan J granted on 8 March 2005 and sealed on 31 March 2005. The second caveat is purportedly by the administrator of the Estate of the 1st plaintiff purporting to protect the "same right and same cause" as that earlier removed by Finnigan J. In the circumstances, it could only be registered by order of the Court and having not been so authorized, there was no legal basis for the registration of Caveat No. 562447, contended by Mr. Verma.

[4] On 8 April 2005, Finnigan J stayed his order of 8 March 2005 until the determination of the plaintiff’s application for leave to appeal the 8 March 2005 order. In his interlocutory ruling of 21 June 2005 Justice Finnigan granted leave to the plaintiffs to appeal and concluded that "clearly the caveat must remain in force to give effect to the right of appeal and it will remain until further order of the Court".

[5] The order from that ruling was sealed on 30 June 2005. It has not been set aside. The background facts of the dispute are contained in the interlocutory ruling of 21 June 2005. Given the stay of the order removing the caveat, there is no merit in the 2nd limb of Mr. Verma’s submission.

[6] However I uphold him on his first submission/ ground. Having examined the file, there is no evidence before me supporting any right of the caveator to register the caveat against the subject land. The nature of the estate or interest claimed in the land is not disclosed. I have found that the caveator has no legal or beneficial interest in the land and as such is not entitled to caveat the land. I grant order in terms of prayer 2 of the summons dated 21 February 2007. For completeness I also order the removal of Caveat No. 531635, given Mr. Verma’s submission that the appeal proceedings were not prosecuted by the plaintiffs. The order staying Finnigan J’s order is hereby dissolved.

[7] The plaintiffs counsel on record, Sahu Khan & Sahu Khan wrote to the Deputy Registrar by letter dated 26 February 2007 informing him interalia that they were "unable to proceed with relevant matters at such short notice and for lack of instructions." That letter was not copied to Mr. Verma. In any event, I have declined to take into account the contents of the letter. Counsel should have been present in Court today. A letter to the Deputy Registrar does not waive appearance nor would it be proper for me to take into account the contents of that letter.

My Orders

(i) Caveat Nos. 531635 and 562447 against Housing Authority Lease No. 218435 (Lot 47 on DP 4128) be removed forthwith pursuant to Section 110 Land Transfer Act

(ii) This action is struck out and dismissed for non-appearance of the plaintiffs or counsel for the trial today

(iii) Defendants to have costs of the proceedings assessed in the sum of $1,000.00.

Gwen Phillips
JUDGE

At Lautoka
27 February 2007