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Nisha v Ali [2021] FJHC 411; HBC88.2021 (21 December 2021)

IN THE HIGH COURT OF FIJI
AT SUVA

CIVIL JURISDICTION


Civil Action No. HBC 88 of 2021


BETWEEN: NAZIYA NISHA of Uto Place, Naulu Housing, Nakasi, Supervisor.


PLAINTIFF


AND: AKLAB ALI of Lot 3 Banyan Court, Nakasi, Driver.


1ST DEFENDANT

AND: AYUB ALI of Lot 3 Banyan Court, Nakasi, Unknown.


.

2ND DEFENDANT

Counsel : Plaintiff : Ms. Singh K
: 3rd Defendant: Ms. Ali N
Date of Hearing : 14.12.2021
Date of Judgment : 21.12.2021


Catch Words
Land Transfer Act Sections 2(1). 21(1), 24, 103,106, 110, 113,- Order of High Court- Registration- Caveat lodged by son of owner- declaration of half share of property-caveatee- prohibition to register judgment.

JUDGMENT

INTRODUCTION

  1. Plaintiff filed this action in terms of Sections 21(1), 24 and 168 of Land Transfer Act 1971 seeking to remove a caveat lodged by first Defendant on CT 26208(the Property) and also direction to third Defendant to register an instrument of transfer of 50% of proprietary rights in the Property, in terms of orders made by Family Division of the High Court. Plaintiff had obtained 50% of ownership to the Property pursuant to decision of Magistrate’s Court in terms of Family Law Act 2003. This decision was appealed, but the decision was affirmed by Family Division of High Court. Some additional orders were also made in the decision of appeal. First Defendant, who was not a party to action in terms of Family Lay Act 2003, had lodged a caveat no 838508, (The Caveat) claiming as ‘beneficiary’ as “legal son” of registered proprietor who is second Defendant. Second Defendant is father of first Defendant and ex-husband of Plaintiff. First Defendant’s caveatable interest purportedly derive from being ‘legal son of” proprietor. Plaintiff had sought to cancel the caveat in terms of Section 168 of Land Transfer Act 1971, The Caveat, prohibit registration of judgment in terms of Section 113 (1) of Land Transfer Act 1971. By legal fiction, once registration of judgment in terms of Section 103 of Land Transfer Act 1971, entered Plaintiff becomes proprietor of half of the Property. Plaintiff was a ‘caveatee’ of the Property as a person who has the right to register judgment. Hence was able to make an application to third Respondent in terms of Section 110 (1) of Land Transfer Act 1971 for removal of the Caveat. Plaintiff had made such an application through its solicits, but third Defendant refused on the basis that Plaintiff’s rights were not registered on title. Because of the refusal of third Defendant. Plaintiff was in a precarious situation to register judgment in terms of Section 103 of Land Transfer Act 1971. So in my judgment Plaintiff could seek removal of the Caveat from third Defendant upon production of “office copy” of decision of High Court as caveatee in terms of Section 103 read with Section 110(1) of Land Transfer Act 1971. As third Defendant did not entertain the application for removal of caveat made by Plaintiff through her solicitors, present application in terms of Section 168 of Land Transfer Act 1971 was made for directions to third Defendant to remove the caveat and also register the proprietary rights affirmed by High Court.

FACTS

  1. Plaintiff in the Originating Summons dated 17.3.2021 sought following orders:

“i. An Order under Section 168 of the Land Transfer Act of Fiji, 1971 that the Third Defendant remove and/or cancel Caveat No. 838508 lodged by the First Defendant affecting the land, legal description of which is Certificate of Title No, 26208 being Lot 3 on Deposit Plan No. 5486 located at Banyan Court, Nakasi and having an area of Seven Hundred square meters;

  1. An Order under Section 168 of the Land Transfer Act of Fiji, 1971 that the Third Defendant register the instrument of Transfer made by the Plaintiff as per the High Court Order dated 21 January 2020 in the Register of Titles to land, affecting the land, legal description of which is Certificate of Title No. 26208 being Lots 3 on Deposit Plan No. 5486 located at Banyan Court, Nakasi and having an area of Seven hundred square meters in the name of the Plaintiff;
  2. An Order under Section 168 and Section 21(1) and Section 24 of the Land Transfer Act of Fiji, 1971 that the Third Defendant make and enter all such memorials of instrument being the cancelation of Caveat No. 838508 affecting the land, legal description of which is Certificate of Title No. 26208 being Lot 3 on Deposit Plan No. 5486 located at Banyan Court, Nakasi and having an area of Seven Hundred square meters;

iv. Further or other relief as this Honourable Court may deem fit."

  1. Second Defendant was ex-husband of Plaintiff. First Defendant is son of Plaintiff and second Defendant.
  2. In an action filed in Magistrate’s Court in case, Case No. 13/NAU/00, Plaintiff obtained 50% share in the Property on 15.3.2017.
  3. Second Defendant appealed to Family Division of High Court and on 21.01.2020, decision of the Magistrate was affirmed with some additional orders. These additional orders had no relevance to removal of the Caveat.
  4. Plaintiff took the steps to obtain the transfer of her share on the Property, through its solicitors.
  5. On 14 .12 2020, the transfer dated 23.4.2020 was lodged for registration with the third Defendant. The transfer was not accepted for registration due to the Caveat.
  6. An application was lodged for removal of caveat to third Defendant on 8.2.2021. This fact was denied by third Defendant and state that there was no record of such an application, though prima facie there was a stamp which had acknowledged ‘Fees Paid” on 9.2.2021 with a signature of a person.
  7. According to affidavit in support, the Third Defendant returned the application for removal of caveat on 11.02.21. The basis application for removal was refused was that it could only be removed by the registered proprietor of the Property on record.[1]
  8. Despite denial of records of the lodgment of application for removal of caveat, third Defendant maintained that only a person having registered interest on the title can make an application for removal of a caveat on the Property (see paragraph 12 of affidavit in opposition of third Defendant).

ANALYSIS

  1. Plaintiff had obtained a judgment from High Court affirming the decision of Magistrate’s Court, which declared 50% proprietary right of the Property.
  2. Upon production of “office copy” of the said High Court decision[2] third Respondent was obliged to register a memorial in terms of section 103 of Land Transfer Act 1971.
  3. Section 103 of Land Transfer Act 1971 states;

“As to proprietor preferred by court

103. Whr the court has given anyn any judgment, decree or order preferring as proprietor of any estate or interest in land subject to the provisions of this Actany person other than the registered proprietor thereoff, the Registrar, on being served with an office copy of such judgment, decree or order, shall enter a memorial thereof in the register and shall state in such memorial the date of such judgment, decree or order, the date and hour of its production to him, and the name and description of the person in whom such judgment, decree or order purports to vest such estate or interest, and such person shall thereupon be deemed to be the registered proprietor of such estate or interest, and unless and until such entry is made, the said judgment, decree or order shall have no effectual operation.” (emphasis added)

  1. Plaintiff was a person who had obtained 50% proprietary right in the Property, pursuant to a decision of High Court that decision was affirmed by High Court.
  2. Third Respondent should be served with “office copy” of Order of the High Court, and once that was done third Respondent was legally obliged to
    1. Enter a memorial in Register, in terms of Section 24 of Land Transfer Act 1971 and
    2. State in the memorial following particulars,
      1. Date of judgment, order
      2. Date or time the above, produced to Registrar.
      3. Name and description of the person interest vested by judgment, order.
  3. Third Defendant in affidavit in opposition at paragraph 14 stated that Plaintiff failed to submit judgment of High Court, in terms of Section 103 of Land Transfer Act 1971. This is an admitted fact.
  4. Further, third Defendant stated that proper application was for Plaintiff to seek removal of the Caveat.
  5. This is the correct position in terms of Section 113(1) of Land Transfer Act 1971. It reads:

“No entry to be made in register affecting land in respect of which caveat continues in force


113.-(1) Subject to the provisions of subsection (2), except in the cases

referred to in section 117, so long as any caveat shall remain in force prohibiting absolutely any registration or dealing, the Registrar shall not enter in the register any change in the ietorship of or any transfer or other inst instrument purporting to transfer or otherwise deal with or affect the estate or interest in respect of which such caveat may be lodged.

(2) Where an instrument is presented for registration and a caveat is lodged after the time of the presentation of the instrument, the caveat shall not have the effect of preventing registration of the instrument but the caveat shall take effect as if lodged after registration of the instrument.”


  1. So the prohibition on third Defendant in terms of Section 113 (1) of Land Transfer Act 1971, is subjected to the instances stated in the said provision and cannot expand beyond that. The two exceptions given in Section 113(1) of Land Transfer Act 1971, are contained in Section 113 (2) and Section 117 of Land Transfer Act 1971 and they have no application to present case.
  2. Third Defendant is prevented from registering “... other instrument purporting to transfer .... or affect the estate or interest ...” of the Property.
  3. Word “instrument” is defined in Section 2(1) of Land Transfer Act 1971 as;

“"instrument" includes every document registered or capable of registration under this Act or in respect of which any memorial is by this Act directed, required or permitted to be entered in the Register Book or endorsed on any registered instrument;” (emphasis is mine)


  1. Judgment is a document capable of being registered in terms of Section 103 of Land Transfer Act 1971, hence prohibited due to the Caveat lodged by first Defendant. It was an instrument that was capable of being registered under Land Transfer Act 1971. Upon registration, a legal fiction is attached to it in terms of Section 103 of Land Transfer Act 1971. So, registration of judgment is prohibited in terms of Section 113 (1) read with Section 2 (1) above mentioned of Land Transfer Act 1971.
  2. Third Defendant had rightly identified the prohibition, and stated that Plaintiff must seek removal of the Caveat, before registration of an ‘instrument’ under Land Transfer Act 1971.
  3. Strangely, when Plaintiff had made an application to remove the Caveat, third Defendant had rejected on the basis that only registered proprietor can seek removal of caveat.
  4. According to third Defendant only registered proprietor can make an application for removal of caveat. Section 106 of Land Transfer Act 1971 prohibit ‘any person’ from registering ‘any instrument’. So the caveat’s restraining effect is not confined to registered proprietor but to other person who is entitled in law to register ‘an instrument’ in terms of Land Transfer Act 1971.
  5. Plaintiff was not registered as proprietor of the property but had obtained judgment which recognized ownership to half of the Property to Plaintiff.
  6. Plaintiff’s right to register the judgment of High Court, in terms of Section 103 of Land Transfer Act 1971, was ‘caveated’ or prevented by the Caveat. Hence, Plaintiff was a ‘caveatee’ in terms of Section 110 of Land Transfer Act 1971.
  7. Plaintiff was also, a contingent proprietor to half share of the property and her right to register the judgment in terms of section 103 of Land Transfer Act 1971, was caveated by first Defendant. Accordingly, Plaintiff was a ‘caveatee’ though judgment was not registered which attaches legal fiction as proprietor on the property. This was an additional ground to consider Plaintiff as ‘caveatee’ for the purpose of the removal of the Caveat under Section 110 of Land Transfer Act 1971.
  8. Section 106 of Land Transfer Act 1971, a caveat can forbid ‘any person ‘from registering ‘any instrument’ affecting ‘estate or interest’ in relation to land.
  9. So it need not be registered proprietor to seek removal of caveat as caveat can have wider application to prohibit any person from registering any instrument.
  10. Plaintiff’s application for removal of caveat dated 8.2.2021, lodged by the solicitors, which bears a stamp of acceptance of fees on 9.2.2021 was rejected by third Defendant. This was not proper for reasons given above. Hence, Court can direct third Defendant in terms of Section 168 of Land Transfer Act 1971.
  11. There is a paramount obligation on the part of third Respondent to safeguard proprietary rights declared by the court in terms of Section 103 of Land Transfer Act 1971. Hence, Plaintiff’s application for removal of the Caveat cannot be rejected in limine.
  12. Legislature had identified importance of registration of memorial in terms of Section 103 of Land Transfer act 1971, and obliged third Respondent to enter the time of the receipt. This is to prevent any act to deprive the fruits of judgment.
  13. There is a legal fiction created in terms of section 103 when such a memorial is entered that such person is “deemed registered proprietor” in terms of the said provision.
  14. This court can give directions to third Defendant in terms of Section 168 of Land Transfer Act 1971 which states;

“Power of court to direct Registrar


168. In any proceedings respecting any land subject to the provisions of this Act, or any estate or interest therein, or in respect of any transaction relating thereto, or in respect of any instrument, memorial or other entry or endorsement affecting any such land, estate or interest, the court may by decree or order direct the Registrar to cancel, correct, substitute or issue any instrument of title or make any memorial or entry in the register or any endorsement or otherwise to do such acts as may be necessary to give effect to the judgment or decree or order of such court” (emphasis is mine)


  1. The directions to third Defendant, relates to give effect to the judgment. So what is paramount for invoking jurisdiction under Section 168 of Land Transfer Act 1971, is a judgment of this court and such directions are necessary to give effect to the judgment. Both these conditions were fulfilled by Plaintiff.
  2. Powers given by court to give directions to third Defendant, in terms of the above provision, does not confine where third Defendant had erred, but for any other situation ‘necessary to give effect to the judgment ...’. of the court. The powers of Court are wider than to correct third Defendant’s decision to consider Plaintiff as ‘caveatee’.
  3. Plaintiff was caught in a stalemate, due to the actions of third Defendant who rejected the application for removal of the Caveat on the basis that only registered proprietor can make an application for removal of the Caveat. The judgment could not be registered in terms of Section 103 of Land Transfer Act 1971, due to the Caveat.
  4. This had resulted Plaintiff filing this action for removal of caveat in terms of section 168 of Land Transfer Act 1971 by way of a direction to third Defendant. Plaintiff had made registered proprietor and also caveator as Defendants.
  5. So before giving directions to remove the Caveat to examine caveatable interest of first Defendant.
  6. The First Defendant is the son of the second Defendant. The First Defendant claims ‘interest’ in the property as ‘beneficiary’ by virtue of being legal son” of the second Defendant, who is the owner of the Property.
  7. From the above statement contained in the Caveat annexed NN5, there was no caveatable interest for first Defendant.
  8. So, an order is made to third Defendant for the removal of Caveat No 838508 forthwith.
  9. Plaintiff had relied on Section 21(1) and Section 24 of Land Transfer Act 1971 for directions sought in the orders.
  10. Section 21 (1) of Land Transfer Act 1971 states

“21.-(1) Every instrument of title shall be deemed and taken to be registered under the provisions and for the purposes of this Act as soon as the same has been signed by the Registrar and marked with a serial number in the register, and every instrument purporting to transfer or in any way to affect land subject to the provisions of this Act, or any estate or interest therein, shall be deemed to be so registered as soon as a memorial thereof as herein described has been entered in the register upon the folium constituted by each existing instrument of title affected by such dealing.


  1. The above provision deals with legal effect of registration and the process of that, it specifies when an instrument is deemed registered under the said Act. This cannot be relied on the directions sought by Plaintiff.
  2. Section 24 of Land Transfer Act 1971 states

“24. Every memorial entered in the register shall state the nature of the instrument to which it relates, the day and hour of the presentation of such instrument for registration, and such other particulars as the Registrar may direct, and shall refer by number or symbol to such instrument, and shall be signed by the Registrar.”


  1. The above provision deals with the requirements relating to memorial and has no application to the orders sought seeking directions sought by Plaintiff to third Defendant to execute to register the transfer of Plaintiff’s shares in terms of judgment.
  2. Section 21(1) and Section 24 of Land Transfer Act 1971 does not provide a court to given directions in terms of that, but these are provisions that third Defendant is mandated to perform by Land Transfer Act 1971.
  3. Once caveat No 838508 is removed Plaintiff is entitled to register the judgment in terms of Section 103 of Land Transfer Act 1971, but there was no such order sought.
  4. Plaintiff seeks to transfer her interest in the property and there is no impediment for that in terms of Section 103 read with Section 168 of Land Transfer Act 1971.
  5. Third Defendant is also ordered to enter memorial in order to transfer half share of the land contained in CT 26208 in terms of Section 168 read with Section 103 of Land Transfer Act 1971.

FINAL ORDERS

  1. An Order to third Defendant, to remove Caveat No. 838508 forthwith.
  2. Third Defendant is ordered to transfer half share of property comprised in CT 26208 to Plaintiff in terms of Section 103 and 168 of Land Transfer Act 1971.
  1. No order as to costs.

Dated at Suva this 21st day of December, 2021.


.....................................

Justice Deepthi Amaratunga

High Court, Suva


[1] Paragraph 12 of affidavit in opposition of third Defendant
[2] Section 2(1) Land Transfer Act 1971 define the Court exclusively to “means High Court”

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