IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 141 of 2018

IN THE MATTER of Mortgage No. 810533 given by MOSESE MAMAFAINO KOTOINLEKATALEVURAWA YAVALANAVANUA CAVU YAVALANAVANUA and JOKAPECI VULIMAIPAPALAGI CAVU YAVALANAVANUA in favour of Home Finance Company Limited trading as HFC Bank over the property being Certificate of Title No. 17003.

BETWEEN 	
	
HOME FINANCE COMPANY LIMITED Trading As HFC BANK

PLAINTIFF

AND 	 
	
MOSESE MAMAFAINO KOTOINLEKA
TALEVURAWA YAVALANAVANUA CAVU YAVALANAVANUA and JOKAPECI VULIMAIPAPALAGI CAVU YAVALANAVANUA

DEFENDANTS

APPEARANCES/REPRESENTATION
PLAINTIFF		: 	Ms N Choo [R. Patel Lawyers]

DEFENDANTS		: 	No Appearances / Not represented

JUDGMENT OF	 : 	Acting Master Ms Vandhana Lal

DELIVERED ON	:  	13 September 2018

JUDGMENT
[Section 88 – Mortgage action for Delivery of possession by the mortgagee]

Introduction
1.	It is the Plaintiff’s originating summons filed on 16 May 2018 pursuant to Order 88 of the High Court Rules. The Plaintiff in its capacity as a mortgagee seeks order for vacant possession of the mortgaged property comprised and described in Certificate of tile No. 17003 being lot 22 on Deposited Plan No. 3986 situated at Niu Street, Laucala Beach Estate containing 32 perches with all improvements. 
The Plaintiff has filed an Affidavit in Support of the application. The deponent is one Admond Chandra the General Manager Credit of the plaintiff company.

2.	As per the affidavit of service filed on 22 May 2018 the Defendants were served with the application and Affidavit in Support on 17 May 2018 and 18 May 2018 respectively.

3.	The second Defendant on the 31 May 2018 filed an acknowledgement of Service.

4.	The Plaintiff moved the Court seeking a hearing date for its originating summons. A notice of appointment to hear was filed on 01 June 2018 and served on 18 June 2018 and 12 June 2018 respectively on the defendants.

5.	They have failed to appear in Court in person or through a legal representative to contest the matter.

Mortgagee’s Exercise of Power
6.	As per the affidavit in support, the Defendants are the registered proprietors of the above mentioned property which has a dwelling house erected on it and is occupied by the Defendants and their family.

7.	To secure the credit facility the Defendants granted the plaintiff a first ranking mortgage over the said property, this being Mortgage No. 810533.

8.	The Defendants were advanced loan as follows:
i.	 	An amount of $146,930.66 was advanced on or about 26 January 2015 with an interest rate of 4.25% per annum fixed for first twelve months and thereafter at 6.99% per annum;
ii.	 	The monthly instalment payment was $1,735.13 for the first year months and $2,151.58 thereafter.

9.	On 02 November 2016, the Plaintiff issued to the Defendants with a default notice. As per the notices the Defendants were asked to remedy the default $1,236.73 within 30 days. In failure to do so, the powers and sale of the mortgaged property and all or any of the rights and powers and remedies as conferred upon HFC by the said mortgage, the property law and Land Transfer Act will be exercised.

10.	Due to the Defendants default in the repayment of the advance made by the bank, the bank proceeded to exercise its power under the said mortgage and called for tenders for the sale of the said property.

11.	The Bank accepted a tender for the sale and the prospective purchaser requires vacant possession of the property.

12.	According to the Plaintiff, the Mortgage gives the Bank powers to take possession of the property if the mortgagee fails to pay the amount secured and the failure continues for 30 days after service of a notice.

13.	It further alleges that the Defendants have continued to neglect payment. Hence on or about 15 January 2018 the Plaintiff further issued a notice to the Defendants to settle the debt.

14.	As per the notice [annexure ACS4] the arrears outstanding was $22,957.73 with a total dent of $212,246.26 as at 15 January 2018.

Under the said notice the Defendants were given 07 days to clear the arrears or the Bank will proceed to sell the property without further notice.

15.	Subsequently an eviction notice was issued dated 23 March 2018, giving the Defendants 30 days to evict.

16.	The Defendants continue to occupy the property.

Law
17.	Order 88 of the High Court Rules reads:
1.-(1) This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs, namely- 

(a)	 	…………………………….
(b)	 	…………………………….
(c)	  …………………………… 
(d)	  …………………………… 
(e)	  …………………………….
(f)	 ……………………………
(g)	  delivery of possession by the mortgagee.

18.	Order 28 rule 2(4) of the High Court Rules allows the defendant who has acknowledged service to adduce evidence by affidavit evidence. He or she must file and serve the answering affidavit within 28 days after the service on him/her the copies of the Plaintiff’s evidence [supporting affidavit].

19.	Order 88 rule 3(2) requires the Plaintiff “to exhibit a true copy of the mortgage and the original mortgage or, in the case of a registered charge, the charge certificate must be produced at the hearing of the summons”.

20.	Section 18 of the Land Transfer Act reads:
Every duplicate instrument of title duly authenticated under the hand and seal of the Registrar shall be received in all courts as evidence of the particulars contained in or endorsed upon such instrument and of such particulars being entered in the register and shall, unless the contrary be proved by the production of the register or a certified copy thereof, be conclusive evidence that the person named in such instrument or in any entry thereon as seised of or as taking an estate or interest in the land described in such instrument is seised or possessed of such land for the estate 
or interest so specified as from the date of such certificate or as from the date from which such estate or interest is expressed to take effect.

Determination
21.	The First Defendant has failed to acknowledge service of the application, whilst the second defendant has failed to file and serve an answering affidavit.

22.	Upon perusal of the affidavit, I find that annexures AC1 copy certificate of title and AC2 Copy mortgage are not true certified copies.  These are just Photostat copies.

Neither has the Plaintiff or its Counsel produced an original copy of the mortgage.

23.	In the case of Housing Authoity v Raju [2008] FJHC 366; HBC 071.2008 (19 December 2008) the then Master Udit when dealing with an application for setting aside Order 88 dealt with the issue pertaining to production of original mortgage at the hearing.

On paragraph 39 he made following observations:
[39] A similar situation was encountered by His Lordship Mr Justice Jayratne in Shanti Lal –v- Bank of New Zealand (Supra). Likewise His Lordship Mr Justice Fatiaki also dealt with this issue in National Bank of Fiji –v- Abdul Kadir Hussain Civil Action No. 033/1994. His Lordship held that although the strict requirements of the Rules was not complied with, the court still had the jurisdiction to hear, grant or dismiss an Order 88 action. In view of the decided cases, I do not hold that the order granted on 21st April, 2008 was irregular for the failure to produce original copy of the mortgage at time the order was made. In any event, the defendant waived any such irregularity. Furthermore he conceded that the mortgage was a valid and enforceable instrument.

However, in future Counsel appearing for a mortgagee must pay specific heed to the requirements of the Rules. The Rules are there to be obeyed.

In the said case it was found that a certified true copy of the mortgage was exhibited to the affidavit in support of the application. 

24.	Other cases perused by this Court made findings as follows:

a.	 	Home Finance Company Limited trading as HFC Bank v. Jone Qio a Suva High Court Civil Action No. HBC 202 of 2015 – the Plaintiff was found to have attached a certified true copy to its affidavit. So by not producing the original, the irregularity was allowed.;
b.	 	Australia and New Zealand Banking Groups Limited v. Rameshwar Dutt & Ors a Lautoka High Court Civil Action No. 164 of 2014 – the Plaintiff had annexed a certified true copy of the mortgage and had produced the original mortgage at the hearing.;
c.	 	Credit Corporation (Fiji) Limited v. Mohammed Shikandar Buksh and Nazreen Buksh a Suva Civil Action No. HBC 03 of 2010 – it was found that the original was not produced in court at the time of the hearing but the Court had already sighted the original mortgage in Civil Action HBC 264 of 2009 between the same parties. The Court found it was not necessary for the plaintiff to produce the mortgage again.;
d.	 	Wati v. Pillay a Suva High Court Civil Action No. 210 of 2008 – a true copy of the mortgage was exhibited in the affidavit in support whilst at the hearing, Counsel handed up a copy of the Mortgage with the original stamp ‘Provisional’ appearing on it. The Court found that this was to the satisfaction of Order 88, Rule 3(2).

25.	In the present case before this Court, the Counsel did not submit original copy of the mortgage and also in their affidavit in support they have only annexed a Photostat copy and not a true certified copy under the seal of the Registrar of Titles.

This Photostat copy so annexed in the affidavit itself is not in compliance with Order 88 rule 3(2) of the High Court Rules.

26.	I further note that the certificate of title so annexed [“AC1”] is not a certified true copy under the seal of the Registrar of Titles as per section 18 of the Land Transfer Act.

27.	These requirements are not something new. The rules are mandatory and must be complied with. 

28.	Hence on this irregularity I cannot proceed further and make orders. The application is dismissed accordingly.

29.	There is no order for cost made as either Defendant have not been appearing in Court.

....................................
Vandhana Lal [Ms]
Acting Master
At Suva.