Datt v Datt [2023] FJHC 496; HBC103.2014 (27 July 2023)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC No. 103 of 2014

BETWEEN : RAJ DATT of Wailoaloa, Nadi in the Republic of Fiji, Retired

PLAINTIFF

AND : SUNIL DATT, RAM DATT, ANIL DATT, MANJULA WATI all of Navakai, Nadi in the Republic of Fiji, Supervisor, Carpenter, Driver and Domestic Duties as four of the Administrators of the Estate of RUDRA DATT and the Executors and Trustees of the Estate of SHEELA late of Navakai, Nadi, in the Republic of Fiji, Domestic Duties, deceased.

1^ST – 4^TH DEFENDANTS

AND : DIRECTOR OF LANDS

5^TH DEFENDANT

BEFORE : Hon. Mr. Justice Mohamed Mackie

APPEARANCES : Plaintiff’s Son, Ravin Datt, appeared in person as P/A Holder.

1^st Defendant appeared in person

Mr. Mainavolau J., for the 5^th Defendant

DATE OF HEARING : 29^th June 2023

DATE OF DECISION : 27^th July 2023

RULING

1. The 1^st defendant , Sunil Datt , appearing in person, by his Inter-Parte Summons dated 28^th February 2023 and filed on 2^nd March 2023 moved this Court for the following Orders;
   
   1. “For the dissolution of Order made on the 11^th day of May 2015 by MOHAMMED AJMEER in respect of Civil Action No 103 of 2014 for extension of the time of the caveat number 795964 “C” registered on the 7^th day of April, 2014 against Crown Lease No. 14796.
      
   2. There be no order for costs”.
      
2. The Summons is supported by his Affidavit sworn on 28^th February 2023 and filed on 2^nd March 203, together with annexures marked as “SD-1” to “SD-4”.
   
3. The plaintiff’s Son, Raveen Datt, being the Power of Attorney holder of the Plaintiff, on 14^th April 2023 filed his Affidavit in opposition sworn on 12^th April 2023, together with a copy of the Petition for Leave to Appeal made to the Supreme Court against the judgment pronounced by the Court of Appeal in ABU 0006 of 2019 affirming the judgment of the High Court of Lautoka in the substantial matter.
   
4. The 1^st defendant in turn on 5^th May 2023 filed his Affidavit in reply, subsequent to which this court heard both the parties in person on 29^th June 2023. This ruling is pronounced pursuant to the said hearing.
   
5. As the plaintiff in his Affidavit in opposition had revealed about the pending Appeal before the Supreme Court in relation to the substantial matter, about which the 1^st defendant had suppressed in his Affidavit in support, this Court at the end of the hearing on 29^th June 2023, directed for a copy of the Judgment by the Supreme Court to be filed at this Court once it is pronounced. Accordingly, same has been filed on 12^th July 2023, being pronounced by the Supreme Court on 30^th June 2023.
   

Analysis

6. Perusal of the Affidavit in support reveals that the Caveat in question was registered by the plaintiff on 7^th April 2014 affecting the Crown Lease no 14796 and subsequently, on the plaintiff’s application the time period was extended by Mohamed Ajmeer –J, as he then was, by making the following orders on 11^th May 2015.
   

“IT IS HEREBY ORDERED AS FOLLOWS THAT:

1. The time has been extended as mentioned in the Notice of removal of caveat dated 28th April 2015 issued by the Registrar of Titles under NO. 812569.
2. The extension is granted until further order of this court.
3. The sealed order has to be served on the 1^st Defendant and the Registrar of Titles forthwith”. (the emphasis is mine)
   
7. As per the prayers to the Inter-parte Summons hereof, what the 1^st defendant is seeking from this Court iner-alia,is an Order for the dissolution of Order made by Mohamed Ajmeer on the 11^th day of May 2015. The dissolution of an Order so made can be done only by an Appellate forum. This Court cannot dissolve or set aside its orders of this nature.
   
8. The Order what the 1^st Defendant could have sought from this Court is for the removal of the Caveat or not to extend the time period of it any further , if the circumstances do not demand the extension of the time period of the Caveat currently in force.
   
9. As I alluded above, the 1^st defendant deliberately suppressed the fact that the substantial matter is currently on Appeal before the Supreme Court and pending for the judgment on 30^th June 2023.
   
10. Now the judgment of the Supreme Court being pronounced on 30^th June 2023, a copy of it has been provided to this Court for perusal. As per the said judgment, I observe that the Supreme Court , having granted special leave to Appeal, has allowed the Appeal of the Plaintiff hereof and set aside the judgment of the Court of Appeal dated 28^th February 2020 , by which the Judgment of the High Court dismissing the Plaintiff’s action had been affirmed.
    
11. In view of the above, I find that the plaintiff has the right to have the registration of his Caveat intact till his rights, recognized by the judgment of the Supreme Court, are duly materialized.
    
12. Further, the position taken up by the 1^st defendant in his reply Affidavit to the effect that Raveen Datt, had filed the Caveat in his personal capacity, it was not filed by the actual plaintiff of this action or by Raveen Datt, as the holder of the Power of Attorney, will not support his Application. Justice Ajmeer, seems to have made the impugned Order after duly recognizing the Plaintiff’s Son, Raveen Datt, as the Power of Attorney holder of the plaintiff and accordingly extended the time period of the Caveat.
    
13. If the 1^st defendant was of the view that Justice Ajmeer had erred in his order of extending the time period of the Caveat, the appropriate remedy for the 1^st defendant was to challenge the order of Justice Ajmeer in the appropriate forum and not before this Court as I alluded in a foregoing paragraph. He could have taken up this objection before Ajmeer J.
    
14. Being aware of the pending Appeal before the Supreme Court, the 1^st defendant deliberately suppressed it to this Court and attempted to mislead this Court to obtain an order for the cancellation of the Caveat that is in force. This is an abuse of process of this Court on the part of the 1^st defendant.
    
15. Though, the plaintiff appeared in person through his Son Power of Attorney holder, considering the conduct of the 1^st defendant and the cost the plaintiff would have incurred in preparation of Affidavit in opposition and other possible disbursements, I decide to impose a summarily assessed costs in a sum of Three Hundred Fijian Dollars (FJ$300.00) payable by the 1^st defendant unto the plaintiff.
    
16. Accordingly, for the above reasons, I make following orders.
    
    1. The inter-parte Summons dated 28^th February 2023 filed by the 1^st defendant is hereby dismissed.
       
    2. The 1^st defendant shall pay the plaintiff a sum of $300. 00, being the summarily assessed costs payable within 14 days.
       

A.M. Mohamed Mackie
Judge

At High Court Lautoka this 27^th day of July, 2023.

SOLICITORS:
For the Plaintiff : In Person
For the 1^st Defendants: In Person
For the 5^th Defendants: Attorney General’s Office