Singh v Registrar of Titles [2011] FJHC 491; HBC108.2010L (31 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 108 of 2010L

BETWEEN:

RAJAI SINGH as the attorney of RAJNEEL RAVNEET SINGH
Plaintiff

AND:

REGISTRAR OF TITLES
Defendant

FINAL JUDGMENT ON ORIGINATING SUMMONS

Judgment of: Inoke J.

Counsel Appearing: Mr E Maopa (Plaintiff)
Mr J Lewaravu (Defendant)

Solicitors: Babu Singh & Assocs (Plaintiff)
AG's Chambers (Defendant)

Dates of Hearing: 25 July 2011

Date of Judgment: 31 August 2011

INTRODUCTION

[1] This is the plaintiff's application by originating summons for orders that the registrar of titles correct certain entries made on his certificate of title NL 25854.

[2] The application is made pursuant to O 7 of the High Court Rules 1988 and Part XXIV of the Land Transfer Act [Cap 131].

THE BACKGROUND

[3] The facts are not in dispute. The land in NL 25854 was registered to Reshmi Lata on 30 August 2007 as the executrix of the estate of Emi Pal (deceased). On 24 October 2007, she agreed to sell the land to the plaintiff, Rajneel Ravneet Singh, for $28,000. The transfer pursuant to that agreement was lodged and registered and Rajneel Ravneet Singh became registered proprietor on 2 November 2007.

[4] The land however, had been the subject of civil proceedings in HBC 381 of 2007 in this Court with Reshmi Lata as the defendant in which Phillips J had ordered a restraint against her from selling the land. The restraining order was registered against the property subsequent to the transfer to the plaintiff. Counsel only found out on the morning of the hearing that HBC 381 of 2007 was struck out by the Master on 21 June 2010.

[5] The registrar of titles filed an affidavit in reply. She did not dispute that the transfer to the plaintiff was lodged and registered before the subsequent court orders on 14 December 2007, 25 April 2008 and 13 June 2008. But she was duty bound to register them because, she argued, the Torrens System under which she operates is based on registration on lodgment.

[6] The plaintiff wants court orders that (1) the entry of the orders be cancelled, corrected and discharged and (2) the registrar of titles makes necessary corrections and (3) a declaration that the transfer of the lease by Reshmi Lata to the plaintiff is without breach of the order.

[7] The transfer from Reshmi Lata to the plaintiff is not an issue in this case so no order is required in that regard. The entry as it stands is taken to be correct and proper and the plaintiff's title is indefeasible.

THE ISSUE

[8] The issue is therefore whether the registration of the court orders should remain even though they were lodged subsequent to the transfer to the current registered proprietor.

DETERMINATION OF THE ISSUE

[9] It is true that registration is in order of lodgment. But allowing the registration of the court order to remain when it never had any binding effect on the registered proprietor does not give a true picture of the dealings on the land. Further, it has the effect of restraining further dealings subsequently because it operates as if it were a caveat: s 104(2) of the Land Transfer Act.

[10] Also, I think the order should not have been registered in the first place because the only basis on which the order could have been registered was through Reshmi Lata as the registered proprietor. When it came to be registered, the land was no longer registered to her. I think the registrar of titles made an error. Section 104 of the Act which deals with the registration of judgments and orders on certificates of title, by necessity, only allows the registrar of titles to register a judgment if the judgment affects "an estate or interest" in the subject land. As the judgment in this case did not, the registrar had no powers to register it in the first place. Such entries on the title should be cancelled forthwith.

COSTS

[11] The defendant should pay the plaintiff's costs which I set at $800 to be paid within 21 days.

ORDERS

[12] The orders sought by the plaintiff in paragraphs 1 and 2 of his originating summons are granted.

[13] The defendant shall pay the plaintiff's costs of $800 within 21 days.

Sosefo Inoke
Judge