Raditora v Naikavou [2022] FJHC 204; HBC137.2016 (31 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 137 of 2016

THE MATTER of an Application made

pursuant to Order 31 of the High Court Rules,

1988.

BETWEEN: LAVENIA RADITORA of Lot 26 Delainavesi Road, Lami in the

Republic of Fiji.

PLAINTIFF

AND : ONISIMO NAIKAVOU of Wainisalato Settlement, Naboro, Lami.

FIRST DEFENDANT

AND : THE FIJI PUBLIC TRUSTEE CORPORATION PTE LIMITED situated at Public Trustee House, 83 Amy Street, Suva as Trustee in the Estate of ESALA JAMES formerly of Wainisalato Settlement, Naboro, Lami.

SECOND DEFENDANT

AND : HOUSING AUTHORITY a body corporate duly constituted under the provisions of the Housing Act and having its head Office at Valelevu, Nasinu.

THIRD DEFENDANT

Counsel : Plaintiff: Mr. V. Maharaj

: Defendants: No Appearance
Date of Hearing : 28.3.2022
Date of Judgment : 31.3.2022

JUDGMENT

INTRODUCTION

1. Plaintiff had obtained judgment against Defendants for a specific sum of money as damages and for cost of the action and interests. It was no paid by Defendants. Plaintiff had lodged this judgment with the Registrar of Title in terms of Section 104 of Land Transfer Act 1971 on a property where registered proprietor was second Defendant. Such registration of judgment is deemed a caveat in terms of Section 106 of Land Transfer Act 1971. Plaintiff is seeking a sale of the property, in terms of Order 31 of High Court Rules 1988(HCR). Plaintiff as the statutory caveator cannot seek sale of a property on the basis of caveat, hence judgment registered under Section 104 cannot grant an interest to Plaintiff to seek sale of the property. By registration of judgment in terms of Section 104 (2) is a caveat subject to conditions stipulated in said section. So registration of judgment on the title can prohibit any dealing being registered on title. So, the application for sale of the title based on registration of judgment cannot be granted in terms of Order 31 or HCR.

FACTS AND ANALYSIS

2. Plaintiff has filed an originating summons within action, on 7.4.21 seeking the sale of property Native Lease No. 18876 to satisfy the Judgment obtained against the first and second Defendants. So, this is an enforcement of the judgment.
   
3. The application is made pursuant to Order 31 of HCR and upon the inherent jurisdiction of the High Court.
   
4. The Plaintiff had commenced this Action against the first and second Defendants and on default of Defendants, 21.10.19 had obtained judgment against them both jointly and severally after assessment of damages by Master.
   
5. In the judgment it was Ordered the first and second Defendants to pay the Plaintiff the sum of $303,000.00 and cost summarily assessed at $1,500.00 and also for interest in terms of law.
   
6. Plaintiff had found out that the second Defendant, late Esala James aka Esala James Nawaqaliva was the registered proprietor of Native Lease No. 18876.(The Property)
   
7. The Judgment obtained against the first and second Defendants was registered on the title in terms of section 104 of Land Transfer Act 1971.
   
8. Plaintiff seeks Orders from the Court for sale of the Property, pursuant to Order 31 of the High Court Rules, 1988.
   
9. First Defendant had filed summons seeking striking out of originating summons on the basis that there is no reasonable cause of action, but counsel for first Defendant did not appear despite being informed several instances. Due to non-appearance the summons filed by counsel for fist Defendant is stuck off, as the grounds for such strike out cannot be ascertained from summons.
   
10. Order 31 rule 1 of HCR states,

“Where in any cause or matter relating to any land it appears necessary or expedient for the purposes of the cause or matter that the land or any part thereof should be sold, the Court may order that land or part to be sold, and any party bound by the order and in possession of that land or part, or in receipt of the rents and profits thereof may be compelled to deliver up such possession or receipt to the purchaser or to, such other person as the Court may direct.” (emphasis added)

11. At the moment Plaintiff had registered judgment for specific sum of money on the property in terms of Section 104 of Land Transfer Act 1971, which states:
    

“Enforcement of judgments, etc. against land

104.-(1) No judgment, decree or order for the payment of money, the sale of land or a sale in pursuance of an execution under any such judgment, decree or order issued prior to or after the commencement of this Act shall bind, charge or affect any estate or interest in land subject to the provisions of this Act unless and until the Registrar has been served with a copy of such judgment, decree or order certified by the court and accompanied by a statement signed by any party interested or his barrister and solicitor or agent specifying-

(a) the estate or interought toht to be affected thereby;

(b) the namdress and descriptioiption of the person by whom or on whose behalf the same is lodged; and

(c) an address or plachin Fiji Fiji at i at which notices and proceedings relating thereto may be served.

(2) The Registrar, on being served with a copy of a judgment, decree or order under the provisions of subsection (1) shall, after marking upon such copy the time of service, enter the same in the register; and with effect from the time of service thereof upon the Registrar such judgment, decree or order shall, subject to the provisions of subsection (2) of section 105, have the t of, and and be deemed to be, a caveat lodged under the provisions of section 106, subject to rior registegistered mortga charge forbidding the registration of any person as transferee or proprietor of and of anyf any interest affecting, the estate or int affected by such judgment, decree or order other than in n in pursuance of such judgment, decree or order.

(3) Upon the estate or interest in respect of which a judgment, decree or order has been registered under the provisions of subsection (2) having been sold pursuant to such judgment, decree or order, the Registrar shall, on receiving a transfer thereof in the prescribed form (which transfer shall have the same effect as if made by the proprietor) enter a memorial of such transfer in the register; and on such entry being made the purchaser shall become the transferee and be deemed to be the registered proprietor of such estate or interest.

(4) After the commencement of this Act, no unregistered instrument, document or writing and no equitable mortgage by deposit or otherwise without writing affecting any estate or interest in land shall prevail against a sale under the authority of a judgment, decree or order unless a caveat in respect of such unregistered instrument, document or writing or equitable mortgage shall have been lodged with the Registrar in pursuance of the provisions of section 106&#1b>before the serviservice of the copy of the said judgment, decree or order on the Registrar but, in the absence of a caveat, althe estate and interest of the judgment debtor as well as of any unregistered purchaser, trr, transferee, mortgagee or other person claiming through or under him shall be extinguished and shall pass to the purchaser by virtue of a transfer under the provisions of this section.

(5) The Registrar may register a transfer under the authority of a judgment, decree or order without requiring the production of the duplicate instrument of title:

Provided that the Registrar shall give such notice of intention to register the transfer, at the cost of the transferee, and cause the same to be published, as in the case of the production of a duplicate certificate being dispensed with under the provisions of section 26”(emphasis addedadded)

12. By the registration of judgmenintiff is ‘deemed’ a statutory “caveator&ator” over the Property. This position is subjected to the restrictions stated in section 104(2) of Land Transfer Act 1971.
    
13. Plaintiff’s status after registration of judgment is similar to a caveator in terms of Section 106 of Land Transfer Act 1971, but subjected to ‘any prior registered mortgage or charge forbidding the registration of any person as transferee or proprietor of and of any interest affecting, the estate or interest affected by such judgment, decree or order other than in pursuance of such judgment, decree or order’.
    
14. The ‘effect’ of such registration of judgment in terms of Section 104 read with Section 105 of Land Transfer Act 1971, cannot be expanded beyond statutory limits of Land Transfer Act 1971.
    
15. A person who had lodged a caveat in terms of Section 106 of Land Transfer Act 1971 cannot be elevated to a person who has already declared having any ‘interest in or right over’ the Property, and be entitled to seek a sale of it.
    
16. The having a caveatable interest is not a declaration of interest in or right over the land to sell it but just sufficient to prevent any dealing with the land. Section 113 of Land Transfer Act 1971 states:
    

“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 proprietorship of or any transfer or other 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.”

17. Since Plaintiff is a statutory caveator his rights are also subjected to limitations stated in Section 104(2) of Land Transfer Act 1971. This is another reason why a sale cannot be granted, based on registration of judgment.
    
18. Plaintiff has not obtained ‘interest or right over’ the Property without following due process as this Property was not a subject matter of this action. Order 31 of HCR cannot be used for a sale of property, in this instance.
    
19. Plaintiff had submitted three cases and they are:
    
    1. Chandra v Chandra [2019] FJHC 1135; HBC238.2017 (26 November 2019)
    2. Dominion Finance Ltd v Driu [2014] FJHC 717; HBC231.2010 (1 October 2014)
    100. Dutt v Din [2019] FJHC 725; HBC41.2014 (22 July 2019)
         
20. None of above cases had allowed sale of land in terms of Order 31 of HCR, in terms of registration of judgment on a title. So they cannot be applied to this action.
    
21. Accordingly Plaintiff does not have an interest or right over the Property to sell but rather had obtained a statutory injunction, prohibiting registration of dealings on the Property.

CONCLUSION

22. Summons filed by first Defendant to strike off originating summons as it disclosed no reasonable cause of action, is struck off due to non-appearance. Originating summons seeking sale of the Property for enforcement of judgment for money cannot be granted on the basis of registration of such judgment for money. Such registration only created prohibition in terms of section 113 of Land Transfer Act 1971 read with Section 104 and 105 of Land Transfer Act 1971. No order is made regarding costs.
    

FINAL ORDERS

1. Summons filed on 17.11.2021 is struck off.
2. Originating summons filed on 7.4.2021 is struck off.

100. No order as to costs.
     

Dated at Suva this 31^st day of March, 2022.

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

Justice Deepthi Amaratunga

High Court, Suva