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Singh v Chand [2022] FJHC 75; HBC113.2017 (25 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 113 of 2017

BETWEEN:

JAGAT SINGH of 3320 Big Sky Drive, Reno, Nevada, United States of America, Businessman.
PLAINTIFF

AND:

PREM CHAND of Davuilevu, Nausori, Taxi Driver.
FIRST DEFENDANT

THE REGISTRAR OF TITLES of Civic Towers, Suva.
SECOND DEFENDANT

THE ATTORNEY-GENERAL OF FIJI of Suvavou House, Suva.
THIRD DEFENDANT

BEFORE:
Hon. Mr Justice Vishwa Datt Sharma

COUNSEL:
Mr Singh R. for the Plaintiff
Mr Kumar S. for the First Defendant
Ms Motofaga with Mr Kant S. for Second and Third Defendants

Date of Decision:
Friday, 25^th February, 2022 @ 9.30am

DECISION

[Summons for an Order for Liberty to cross-examine deponent pursuant to Order 35 Rule 3 and
Order 3 Rule 4(1) and Order 38 Rule 2(3) of the High Court Rules 1988
and the Inherent Jurisdiction of this Court]

INTRODUCTION

[1] The Plaintiff filed a Summons on 01^st December 2020, and sought for the following Orders:-

That the trial of this action set down for hearing on 02^nd December 2020 be adjourned to a further date to be fixed.

That the time for service and hearing of this Summons be abridged to one day.

That the Plaintiff be at liberty to cross-examine the deponent on behalf of the Second Defendant upon her two Affidavits sworn by her on 16 September 2020 and filed herein on the same day being her responses to the Orders of the Court made on 15 July 2020 to answer to Discovery and to Interrogatories on the Plaintiff’s claim herein.

That unless the said deponent attends, the said Affidavits shall not be taken as being in compliance with the Orders of 15 July 2020 except by special leave of the Judge.

That the costs of this application and of the cross-examination be costs in the proceedings.

[2] The Application was made pursuant to Order 35 Rule 3 and Order 3 Rule 4(1) and Order 38 Rule 2(3) of the High Court Rules 1988 and the Inherent Jurisdiction of this Honourable Court and in support of the Affidavit deposed by Shahista Shama Saheb.
[3] The 2^nd and 3^rd Defendants opposed the application and filed an Affidavit in Opposition on 01^st February 2021.
[4] Both parties to the proceedings made oral submissions and furnished Court with written submissions.

Background Facts

[5] The Plaintiff is ordinarily resident in the United States of America being a former citizen and resident of Fiji.
[6] At all material times, the Plaintiff was the registered proprietor of the land comprised in Certificate of Title No. 28141 being the land known as Lot 12 on Deposited Plan No. 3899 comprising an area of 2 rood 24.0 perches and located at Koroqaqa, Nausori.
[7] The Plaintiff emigrated from Fiji for USA in 1985.
[8] At or around the time the Plaintiff emigrated from Fiji, he and the First Defendant agreed that the First Defendant would be a caretaker of the said property and the said residence and that in consideration, the First Defendant could reside in the said residence and not pay any rent to the Plaintiff.
[9] These arrangements were then put in place and the Plaintiff allowed the First Defendant to take occupation of the said residence on a caretaker basis.
[10] Upon a visit to Fiji in May 2014 and on an inspection of the said property, the Plaintiff discovered that the said property was occupied by one Sailasa Barini Vadiga who claimed he was the owner of the property.
[11] Upon further enquiries, the Plaintiff discovered that the said property was transferred to the said Sailasa Barini Vadiga then of 19 Tuvuna Place, Samabula North, Suva, Banking Examiner for the price of $45,000 by an Instrument of Transfer dated 20 June 2008 and registered with the Second Defendant on 27 June 2008 under Dealing No. 705888.
[12] It was further discovered that by a “Memorandum Varying Priority of Mortgages” dated 18 March 2011 and registered with the Second Defendant on 23 March 2011 under Dealing No. 743650, the priority of the said Mortgage and the said Charge were varied.
[13] It was further discovered that on or about 24 March 2014, the said Charge was released by an undated Release and registered with the Second Defendant under Dealing No. 795207.
[14] Upon further enquiries, the Plaintiff discovered that the said property was transferred to the First Defendant purportedly by the Plaintiff by an Instrument of Transfer dated 17 December 2005 and purportedly signed by the Plaintiff being an Instrument of Transfer registered with the Second Defendant on 10 July 2006 under Dealing No. 59066.
[15] Upon further enquiries, the Plaintiff discovered that an application for a Provisional Title with respect to the title to the said property was purportedly made by him under a Request to the Second Defendant on 4 March 1999 under Dealing No. 441811.

At the time of the filing of the Amended Statement of Claim, the Plaintiff was unable to obtain a copy of the Request as the Dealing No. 441811 relates to a dealing unrelated to these events.

The Plaintiff has requested the Second Defendant to make the Request available but to date this has not been provided.

[16] Upon further enquiries, the Plaintiff discovered that a Provisional Title was issued to the title to the said property by the Second Defendant on 20 April 1999.
[17] Upon searches carried out by the Plaintiff with the records maintained by the Second Defendant, the Second Defendant was not able to provide any documents relating to the issuance of the Provisional Title. In particular, the Second Defendant could not provide:

Any application for the Provisional Title.

Any statutory declaration that is to accompany the Application.

Any advertisements that were required to be published.

[18] The Second Defendant wrongfully and without any proper application made to it, issued the Provisional Title thereby causing loss to the Plaintiff.
[19] Further, the said Transfer was not signed by the Plaintiff and the signature that appears on the said Transfer is not the signature of the Plaintiff.
[20] The Plaintiff alleges that the said signature has been executed by the First Defendant and/or persons on behalf of or at the request and/or directions of the First Defendant.

PARTICULARS

Full details are not available to the Plaintiff regarding the application for a Provisional Title and the Declaration accompanying the Request for the Provisional Title; refer to Paragraphs 19, 21, 22 and 24 of the Amended Statement of Claim.
The Plaintiff has purportedly signed the said Transfer on 17 December 2005 before Eroni Veretawatini, Solicitor, Nausori. The Plaintiff does not know the said solicitor, has never consulted or instructed him and has never obtained his services, with or without payment of fee, at any time.

The Plaintiff was not in Fiji at the time the said Transfer was purportedly signed by him.

The signature as appears on the said Transfer bears no resemblance to the proper signature of the Plaintiff.
Under the said Transfer, the said solicitor purportedly explained the contents of the Transfer to the Plaintiff in the “Hindustani” language when it is not known whether the said Eroni Veretawatini was conversant with the Hindustani language.

Determination

[21] The Plaintiff filed its Application for Interrogatories and Discovery on 06^th January 2020.
[22] The Defendants consented to the Application for Interrogatories and Discovery on 15^th July 2020.
[23] The Defendants filed its Affidavit to Answers to the Plaintiff’s Interrogatories and an Affidavit in Response on 16^th September 2020.
[24] The Answers to the Interrogatories were as follows:-

(1) Did you, at any time in 1999, receive any application for a Provisional Title to the Title to be issued?

Answer: Yes.

(2) Did you, at any time in 1999 (and more particularly in or around 8 March 1999), register an Application for a Provisional Title on the Title to be issued?

Answer: Yes.

(3) If yes to (2) and (3):

(a) Who did you receive this application from?

Answer: I am unable to provide an answer as I am unable to locate the Request for Provisional Title Application. This may be because my office moved from Suvavou House to Civic Towers on or about 2010 and the documents may have been misplaced.

(b) Was it accompanied by a Statutory Declaration?

Answer: Yes.

(c) If so, who signed the Statutory Declaration?

Answer: I am unable to provide an answer as I am unable to locate the Statutory Declaration. This may be because my office moved from Suvavou House to Civic Towers on or about 2010 and the documents may have been misplaced.

(d) If any solicitors lodged the application, who were the said solicitors?

(e) Was any identification taken of the person who lodged the application?

(f) Were any registration fees paid on the application?

Answer: Yes, a fee of $10.90 is paid for a Request for Provisional Title Application.

(g) If yes:

(i) Who paid this?

(ii) How much was paid?

(iii) When was it paid?

(iv) Was a receipt issued for this payment?

(v) If so, what is the receipt number?

(h) What was the date on which you received this application?

Answer: As outlined on the memorial of the Certificate of Title No. 28141, the date on which the application was registered was 8 March 1999 at 12.30pm.

(i) What was the date on which you registered this application?

Answer: 20 April 1999.

(j) What is the Dealing Number under which you registered the same?

Answer: Dealing number 441811. However, dealing number 441811 is also a dealing number assigned to a Mortgage on a different Certificate of Title and not Certificate of Title No. 28141.

(4) Did you receive copies any advertisements after the application for a Provisional Title was received?

Answer: The Advertisements are given together with the Request for Provisional Title Application and therefore I am not able to give an answer as I am not able to locate the Request for Provisional Title Application.

(5) If yes:

(i) Who did you receive these copies from?

Answer: I am unable to answer as I am unable to locate the Request for Provisional Title Application. This may be because my office moved from Suvavou House to Civic Towers on or about 2010 and the documents may have been misplaced.

(ii) When did you receive the copies of the advertisements?

(iii) Was any identification taken of the person who provided you with copies of the advertisements?

(iv) When was the advertisement published in the Fiji Gazette?

(v) In what newspaper was the advertisement published?

(vi) When was the advertisement published in this newspaper?

(vii) Do you have a copy of the advertisement that was published in the Fiji Gazette?

(viii) Do you have a copy of the advertisement that was published in the newspaper?

(6) Did you issue a Provisional Title to this title?

Answer: Yes, the office of the Registrar of Title at the time issued the Provisional Title.

(7) If yes:

(a) When did you issue the same?

Answer: 20 April 1999

(b) When was it uplifted from your office?

Answer: It is possible that the Provisional Title was uplifted from the office of the Registrar of Titles.

(c) Who was it uplifted by?

(d) Do you have a record of the Provisional Title being uplifted in the Dispatch Book you maintain?

(e) Was any identification taken of the person who uplifted the Provisional Title?

[25] Subsequently, on 01^st December 2020 the Plaintiff filed a Summons seeking an Order to cross-examine the Registrar of Titles in relation to her Affidavit to answers to the Interrogatories and the Affidavit in Response.
[26] The 2^nd and 3^rd Defendants opposed the Plaintiff’s application seeking to cross-examine the Registrar of Titles and filed an Affidavit in Opposition.
[27] The 2^nd and 3^rd Defendants contention is that the Application for Interrogatories and Discoveries are no longer issues. The reason being that the Defendants had consented to the Application for Interrogatories on 15 July 2020. Subsequently, the Defendants filed its Affidavit to answer Interrogatories, answering each interrogatory truthfully and to the best of its knowledge.
[28] Also, on 15 September 2020, the Defendants consented to the Application for Discovery and, on 16 September 2020, filed its Affidavit in Response deposing that the document referred to in the schedule of the Application for Discovery are not in the possession, custody or power of the Registrar of Titles and cannot confirm if the Documents had been in her custody. The Registrar of Titles has further deposed that the documents may have been misplaced.
[29] Given the above, 2^nd and 3^rd Defendants submitted that the Application for Interrogatories and the Application for Discovery be deemed dealt with.
[30] However, if the Plaintiff contends that the answers to the interrogatories in the Affidavit to answer Interrogatories are insufficient, then an application may be made for further answers under Order 26, Rule 5 of the High Court Rules 1988, which states as follows:

“If any person on whom interrogatories have been served answers any of them insufficiently, the Court may make an order requiring him or her to make a further answer, and either by affidavit or on oral examination as the Court may direct.”

[31] The Plaintiff’s Application to cross-examine the Registrar of Titles in respect of her Affidavit to answer Interrogatories under Order 38 Rule 2(3) of the High Court Rules is misconceived given that Order 26 Rule 5 of the High Court Rules makes provision for circumstances when an answer to interrogatories may seem insufficient. In accordance with Order 26 Rule 5 of the High Court Rules, the Plaintiff ought to have made an application for further answers if it viewed that the answers to the interrogatories in the Affidavit to answer Interrogatories were insufficient.
[32] In any event, the Defendants submitted that the answers to the interrogatories in the Affidavit to answer Interrogatories are truthful and to the best of the knowledge of the Registrar of Titles.
[33] His Lordship, Justice Tuilevuka in Greystone Holdings Limited v. Fairdeal–Sila Joint Venture Limited Civil Action No. 83 of 2008 (11 October 2016) stated as follows whilst dealing with the issue of insufficient answers to interrogatories:

‘5. It seems that a Court faced with such an application must first determine whether the party on whom an interrogatory has been served has answered it sufficiently or insufficiently. If he has not, the court then has a discretion as to whether to order that he make a further answer either by affidavit or on oral examination.

From the cases referred to me by counsel, the general rule is that an affidavit of discovery is treated as conclusive (see Finance Sector Union of Australia v Cwth Bank of Australia Ltd [2000] FCA 1389 as per Moore J; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341).

7. In Lyell v Kennedy (supra), Cotton LJ said at 19:

The general rule is undoubtedly this, that in all questions of discovery where you have the oath of the party claiming discovery challenging the oath of the party giving discovery, the oath of the latter if for this purpose conclusive.

That rule applies also to an affidavit containing answers to interrogatories. Hence, the onus would be on the party who alleges that the answers in the other party’s affidavit are insufficient, to establish so.
When the Court is faced with such an allegation of “insufficiency”, it is important to keep in mind that the court is not involved in an inquiry as to the truth or falsity of the answers sworn in an affidavit. As Cotton LJ said in Lyell v. Kennedy [1884] ChD 1 at 21:

Then Rule 10 is, “If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court or a Judge for an Order requiring him to answer, or to answer further, as the case may be”. Then an order may be made requiring him to answer by affidavit or viva voce. So that with regard to an answer to interrogatories, what the Court has to consider is this simply, whether the answer is insufficient, not to go into the question of the truthfulness of the answer, but to see whether it is sufficient or not, and if it is insufficient, then only can it require a further answer.’

[34] The Defendants’ Affidavit in Response filed in connection with the Application for Discovery has satisfied that Order 24 Rule 7(1) of the High Court Rules stated as follows:-

(1) Subject to Rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his or her possession, custody or power, and if not then in his or her possession, custody or power, when he or she parted with it and what has become of it.

[35] The Registrar of Titles has deposed in the Affidavit in Response that the Documents are not in her possession, custody or power and cannot confirm if the Documents had been in her custody. She has further deposed that the documents may have been misplaced.
[36] In the Affidavit in Opposition, the Registrar of Titles has further deposed that the issue with respect to the missing Documents is being investigated by the Fiji Independent Commission Against Corruption. Therefore, an investigation is underway and FICAC will furnish the result of the investigation upon completion to the parties accordingly.
[37] I reiterate that the Application to Cross-examine the Registrar of Titles on the Affidavit to answer Interrogatories should not be allowed as Order 26, Rule 5 of the High Court Rules 1988 makes provision for the Plaintiff to apply for an Order for further answers in the event answers to the interrogatories are insufficient.
[38] As such, the Application for Interrogatories and the Application for Discovery has been dealt with by this Honourable Court.
[39] However, the Plaintiff also cited the same case of Greystone Holdings Limited v. Fairdeal–Sila Joint Venture Limited Civil Action No. 83 of 2008 (11 October 2016) which dealt with the issue of ‘insufficient answers to Interrogatories’.
[40] The Plaintiff referred Court to the two (2) Affidavits filed by the Registrar of Titles on 16^th September 2020 and 01^st February 2021, respectively in terms to the answers to the Interrogatories.
[41] The Plaintiff’s Counsel submitted that there was an ‘insufficiency of answers’ to its Interrogatories sought therein. He then referred Court to Order 26 Rule 5 of the High Court Rules 1988 which provides:-

[42] The question that arises herein for the Court to determine is “whether the Interrogatories by the Second and Third Defendants have been furnished sufficiently or insufficiently?”
[43] If it appears to the Court that the Interrogatories have not been answered sufficiently, the Court then has a discretion to determine whether further answers ought to be made whether by an Affidavit and/or on an oral examination in terms of Order 26 Rule 5 of the High Court Rules 1988.
[44] I have thoroughly perused each of the answers to the Interrogatories filed as Affidavit evidence on 16^th September 2020. The Registrar of Titles confesses under oath that the answers are furnished to the best of her knowledge or belief. It is further noted upon the perusal of the Court file that the 2^nd and 3^rd Defendants had consented to the application for the Interrogatories sought by the Plaintiff on 15^th July 2020 and subsequently filed and served answers to the Interrogatories.
[45] Likewise, the Defendants also consented to the application for Discovery on 15^th September 2020 and accordingly filed its Affidavit Response deposing “that the Documents referred to in the Schedule of the Application for Discovery are not in possession, custody or power of the Registrar of Titles and hence could not confirm if the documents had been in the Registrar of Titles’ custody, the documents may have been misplaced.”
[46] Reference is also made to the Affidavit Verifying List of Documents for the 2^nd and 3^rd Defendants filed in Court on 11^th October 2018 deposed by one Ajay Singh who stated as follows:-

(i) The Defendants have in their possession custody or power the documents relating to the matters in question in this action enumerated in Part 1 of the Schedule:-

- Certificate of Title No. 28141;

- Copy of Dealing No. 590666 dated 10 July 2006;

- Copy of Dealing No. 705888 dated 27 June 2008;

- Copy of Dealing No. 441811 dated 12 May 1988;

- Amended Statement of Defence dated 05 July 2019.

(ii) The Defendants object to the production of the documents enumerated in Part 2 of Schedule 1 [Bundles of documents, files, internal memoranda of confidential category in relation to the Defendants which also included documents for the purpose of obtaining legal advice].

On the grounds that such documents consists purely of communication of a confidential nature for the purpose of obtaining legal advice or conducting the present action or the claim which is the subject of it and correspondence within Government Departments of a confidential nature.

(iii) The Defendants have had, but do not have now in their possession, custody or power that documents relating to the matter in question in this action enumerated in Schedule 2 hereto [originals of all documents enumerated in Schedule 1 above].

(iv) The documents referred to in Schedule 2 were last in the Defendant’s possession, custody or power around the dates the same documents were created.

(v) Neither the Defendants nor their solicitors nor any other person on their behalf have now or even had, in their possession, custody or power any documents of any description whatsoever relating to any matter in question in this action other than those documents enumerated in Schedules 1 and 2 hereto.

[47] The Defendants contention all along have been that the Application for Interrogatories and Discovery were consented to by the Defendants. The Answers to the Interrogatories in the Affidavit form were filed and served together with the Discovery of Documents, the Application for Discovery of documents are not in possession, custody or power of the Registrar of Titles and cannot confirm if the Documents had been in her custody. The Registrar of Titles has further deposed in her Affidavit that the documents may have been misplaced. Therefore, the Counsel submitted that Answers to Interrogatories and Discovery are no longer issues and be deemed dealt with.

Honourable Tuilevuka J in Greystone Holdings Limited v. Fairdeal–Sila Joint Venture Limited Civil Action No. 83 of 2008 (11 October 2016) quoted the case of Lyell v. Kennedy [1884] (Supra) wherein Cotton LJ said at 19:

“The general rule is undoubtedly this, that in all questions of discovery where you have the oath of the party claiming discovery challenging the oath of the party giving discovery, the oath of the latter if for this purpose conclusive.”

[48] The Registrar of Titles Affidavit deposes the answers to the Interrogatories sought by the Plaintiff. Further, the Affidavit Verifying List of Defendants Documents deposes that “the Defendants have had, but do not now have in their possession, custody or power the documents relating to the matters in question in this action enumerated at Schedule 2. The Documents in Schedule were last in the Defendants possession, custody or power around the dates that the same documents were created. Neither the Defendants nor their Solicitors nor any other person on their behalf have now or ever had, in their possession, custody or power any documents of any description relating to questions in this action other than documents in Schedule 1 and 2.
[49] The Answers to the Interrogatories has nexus with the Affidavit Verifying List of Documents filed herein.
[50] Bearing above in mind, I find that the Defendants have filed and served the Answers to the Interrogatories ‘sufficiently’ in terms of the requirements of Order 26 Rule 5 of the High Court Rules 1988.
[51] The Affidavit Verifying List of Documents filed and served further clarifies and gives a descriptive version of the documents in their possession at the time and those which are not in their possession accordingly as enumerated in respective Schedules 1 and 2 and Part 1, 2 and 3.
[52] If the Plaintiff is still of the view that the Answers to the Interrogatories coupled with the Discovery of Documents in terms of the Interrogatories have been answered ‘insufficiently’ in terms of Order 26 Rule 5, then the Plaintiff has a right and is at liberty to summon the person(s) for oral examination rather than seeking an Order of the Court ‘for liberty to cross-examine the deponent’.
[53] For the aforesaid rationale, and in terms of the ‘sufficiency’ of answers furnished to the Interrogatories coupled with the Discovery of Documents, I have no alternative but to dismiss the Plaintiff’s Summons seeking for an Order for liberty to cross-examine the deponent.

Costs

[54] The Summons proceeded to hearing with parties submitting oral and written submissions, it is only fair and appropriate that I grant a sum of $500 as summarily assessed costs to the 2^nd and 3^rd Defendants.
[55] Following are the Orders of this Court:

Orders

(i) The Plaintiff’s Summons seeking for an Order for liberty to cross-examine the deponent is dismissed.
(ii) The Plaintiff to pay 2^nd and 3^rd Defendants summarily assessed costs of $500.00.
(iii) The Plaintiff is at liberty to summon the person(s) as witnesses from the Registrar of Titles Office for oral examination accordingly.

Dated at Suva this 25^th day of February, 2022.

...........................................................................
VISHWA DATT SHARMA
JUDGE

cc: Parshotam Lawyers, Suva
Sunil Kumar Esq, Nausori
Attorney-General’s Chambers, Suva

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