Hussain v Hussein [2019] FJHC 785; HBC256.2016 (5 August 2019)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 256 of 2016

IN THE MATTER of application under section
169 of the Land Transfer Act (Cap 131)

BETWEEN:

SAIYAD AZAD HUSSAIN also known as

SAIYAD AZAAD HUSSAIN of Drasa, Lautoka, Businessman.

Plaintiff

AND:
IQBAL HUSSEIN of Drasa, Lautoka, Businessman.

Defendant

Before : Master U.L. Mohamed Azhar

Counsels: Ms. S. Khan for the Plaintiff
Mr. Nandan for the Defendant

Date of Judgment: 05^th August 2019

JUDGMENT

01. The plaintiff, being the last proprietor of the property described in Certificate of Title No 19907 as Vadraiyawalailai (Part of) being Lot 1 on D.P No. 4591 in the District of Lautoka, Island of Vitilevu and comprising an area of 25 acres 3 roods and 1 perch, took out the summons from this court pursuant to section 169 of the Land Transfer Act (Cap 131) and sought an order on the defendant to deliver vacant possession of the said property. The summons is supported by an affidavit sworn by one Rida Mohammed claims to be a lawful attorney of the plaintiff and a copy of a Power of Attorney No 57543 is annexed with his affidavit marked as “FM 1”. The said affidavit has other annexures too which are marked as “FM 2” and “FM 3”. The defendant opposed the summons and filed the affidavit sworn by himself and attached the documents marked as “IH 1” to “IH 12”. The plaintiff then filed the affidavit in reply sworn by the same attorney together with another set of documents marked as “AFM 1” and “AFM 2”.
02. At the hearing of the summons, counsel for the defendant took up two preliminary issues in addition to allegation of fraud on part of the plaintiff in getting himself registered as the proprietor of the subject property. The first is that the copy of Power of Attorney (FM 1) is not admissible as it does not comply with section 11 of the Civil Evidence Act. The second is that the attorney does not have requisite authority to depose the affidavit on behalf of the plaintiff. In conjunction with second issue, the counsel for the defendant further submitted that, the said affidavit has some statements that the attorney is not able of his own knowledge to prove. Therefore, the counsel objected such statements to be accepted by the court.

03. The first issue is in relation to authenticity and admissibility of Power of Attorney. Though the said Power of Attorney is registered at the office of the Registrar of Deeds, the copy marked as “FM 1” and attached with the supporting affidavit is not certified by the Registrar as true copy. The counsel for the defendant, citing the section 11 (1) of the Civil Evidence Act submitted that, “FM 1” should not be admitted in evidence. The said section 11 (1) provides as follows:

Proof records of business or public authority

11.(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document is to be taken to form part of the records of a business or public authority if this is produced to the court with a certificate to that effect signed by an officer of the business or authority to which the records belong.(Emphasis added).

04. The above section in its plain and simple language provides that, further proof is not required when a certified copy such document is tendered in a civil proceeding and it may be received in evidence. This section neither shuts out uncertified copies of such documents, nor makes certification mandatory. Thus, the court is given wide discretion in relation to uncertified copies of such record. This is further supported by the provision in sub-section 6 of the same section 14. The said sub-section 6 provides that, the court may, having regard to the circumstances of the case, direct that all any of the above provisions of this section (11) do not apply in relation to a particular document, or record, or class or description of documents or records. Thus, if any such document is caught by section 11 of the Civil Evidence Act, the court should decide whether to admit it or not, exercising the wide discretion given to it considering the circumstances of each and every case.
05. However, the situation would be different in case of an uncertified copy of a Deed being tendered in evidence. The reason is that, the section 14 of the Registration Act completely shuts out all uncertified duplicates and copies of registered deeds. The uncertified copies of registered deeds are neither authentic, nor admissible in evidence. The said section 14 is as follows:

Duplicates and copies of registered deed endorsed by Registrar to be evidence

14. No duplicate or copies regi registered deed shall be deemed to be authentic or shall be received in evidence unless they contain an endorsement or marking by the Registrar that they have been examined with the regid deed and found to be corr correct but, when so endorsed or marked, they shall be received as evidence of the contents of the said deed in all courts of law within Fiji. The fees chargeable for copies or authentication of duplicates or copies shall be as prescribed

06. It is obvious that, the law stipulates two different standards in relation documentary evidence of public records and deeds when the uncertified copies of them were tendered in civil proceeding. Whilst the section 11 of the Civil Evidence Act gives the discretion to the court, the section 14 of the Registration Act completely excludes the duplicates and copies unless they are certified and endorsed. The very reason for this is the difference of underlying rationale or principles. The underlying principle in relation to records of public authority is that, there is a rebuttable presumption of law represented by Latin maxim: omnia praesumuntur rite et solemniter esse acta, which means official acts are presumed to have been done rightly and regularly. Accordingly, if a certified copy of any such record is tendered in civil proceedings it may be received in evidence without further proof. However, the court is not barred from seeking further proof considering the particular circumstances of a case, because the section says: “may be received....without further proof”. Likewise, if an uncertified copy is tendered, it does not mean that such copy should necessarily be rejected, because the court has discretion to allow it under sub-section 6 as mentioned above. On the other hand, the underlying rationale in excluding uncertified duplicates and copies of registered deeds is the elimination of fraud. Therefore, no duplicate or copies of a registered deed shall be deemed to be authentic or shall be received in evidence unless they contain an endorsement or marking by the Registrar that they have been examined with the registered deed and found to be correct, and the court has no discretion to receive an uncertified copy or duplicate of a registered deed in evidence.

07. An instrument conferring authority by deed is termed a power of attorney (Halsbury’s Laws of England, Fourth Edition, and Volume I paragraph 730 at page 438). There is no single legislation in Fiji that specifically deals with execution or registration of the Power of Attorney. There are several legislations which make provisions in relation to Power of Attorney for the purposes of those specific legislations. The examples are Property Law Act Cap 130 (see: Part XII), Land Transfer Act Cap 131 (see: Part XVIII), and Mining Act Cap 146 (see: section 14 and 86) etc. Most of the provisions provide that, a Power of Attorney should be deposited at the office of the Registrar, and the Registrar shall cause it registered in the respective Register to be known as the "Powers of Attorney Register". Therefore, execution, deposition and registration of a power of attorney may be dealt with in accordance with the respective legislation. However, when it is tendered in evidence in any civil proceedings, the section 14 of the Registration Act, which commonly applies to all copies and duplicates of deeds, shall be applicable as the power of attorney is a deed and not the section 11 which deals with the record of public authority.

08. The Power of Attorney, marked as “FM 1” and attached with the affidavit in this case, seems to have been made for the purpose of dealing with the disputed property in accordance with Part XVIII of the Land Transfer Act Cap 131. It has been duly deposited and registered as appears from the endorsement of the Registrar of Deed, made on 11.05.2016. It may be sufficient for the purpose of Part XVIII of the Land Transfer Act. However, it is not sufficient for purpose of tendering in evidence in this case as it lacks the certification and endorsement to its correctness as required by section 14 of the Registration Act. It is therefore, not authentic and shall not be received in evidence in this case.

09. Now I turn to discuss the second issue raised by the counsel for the defendant and that is the authority to depose an affidavit and some statement which the deponent is unable of his own knowledge to prove, as claimed by the counsel.

10. The authority to swear an affidavit in civil suits has been an arguable point in several cases in Fiji, and there are several cases, where the courts have rejected some affidavits for lacking authority from the actual parties to the suits. In some instances, the courts have accepted the affidavits despite the absence of written authority from the respective parties to the actions. Therefore, two questions to be decided in relation to the second preliminary objection of the counsel for the defendant. First is who can depose an affidavit in a civil suit? The second is whether a written authority is required to determine the admissibility of an affidavit sworn by a person other than a party to a civil suit?
    

11. The Order 41 of the High Court Rules deals with the matters connected with the affidavits that are filed in civil suits. There is no requirement, in any of the rules under this Order, for a written authority for a person, who swears an affidavit. The rule 5 of the said Order provides for the contents of an affidavit. It reads;

Contents of Affidavit (O.41, r.5)

5.-(1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof. (Emphasis added).

12. According to the above rule, subject to the specific rules mentioned therein and paragraph 2 of the rule, a person, who is able to speak to of his own knowledge to such facts, can swear an affidavit to that effect, as emphasized above. In this sense, the affidavit is equated to the oral evidence given in court. The Supreme Court Practice (White Book) 1999 has the same rule under Order 41. The White Book 1999 reads;

Contents of affidavit (O.41, r.5)

5. (1) Subject to –
(a) Order 14, rule 2(2) and 4(2);
(b) Order 86, rule 2(1) and 4(1A);
(ba) Order 88, rule 5(2A);
(c) Order 113, rule 3;
(d) Paragraph (2) of this rule, and

An affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.

13. The only difference between Fiji High Court Rules and the White Book 1999 is that, the exceptions are more in the White Book