Canaveikila v Registrar of Titles [2024] FJHC 434; HBC152.2023 (16 July 2024)

IN THE HIGH COURT OF FIJI AT SUVA
IN THE CENTRAL JURISDICTION
CIVIL JURISDICTION

Civil Action No. 152 of 2023

BETWEEN:
REVI CANAVEIKILA and ANASAINI ADITUKANA
PLAINTIFF

AND:
REGISTRAR OF TITLES
FIRST DEFENDANT

AND:
OFFICE OF ATTORNEY GENERAL
SECOND DEFENDANT

Date of Hearing : 23 April 2024
For the Plaintiff : Mr Fauktaufon V. and Ms Faktaufon V.
For Defendants : Ms Manueli J.
Date of Decision: : 16 July 2024
Before: : Waqainabete - Levaci SLTT, J

J U D G M E N T

Cause and Background

1. The Applicants, Ms Revi Canaveikila and Ms Anasaini Aditukana together with their parents and siblings resided since 1986 on a property located in Verata (registered as Vol 5. Folio 210, Lot 15 section 4 of Deposit Plan No. 126 (part of)).
   
2. They were brought to reside on the property by their uncle, Ratu Solomone Kalounivutia aka Ratu Solo Kalounivutia (deceased) prior to subdivision in1986.
   
3. Prior to subdivision, the property was registered under Ellen Marshall, from St Kilda, Melbourne, Victoria.
   
4. Despite attempts to obtain a title to the property, this was unsuccessful. On death of their father Mr Isoa Lasaro in 2015, the two Applicants sort to obtain a loan which was also unsuccessful.
   
5. Under instructions, a Vesting Order application was made on the 15^th of May 2020 on the said property with the First Defendants and duly registered as Vesting Order No. 890908 and later advertised in newspapers and gazette.
   
6. Given that there was no claims of interest, the Applicants applied for a new Certificate of Title lodged on 20^th April 2021 with the First Defendants.
   
7. The First Defendant advised that unless the Caveats Dealings No. 240994, 241009, 241249 and 241280 are not removed, the First Defendant was unable to register and issue a new Certificate of Title.
   
8. The Applicant acknowledged that Caveat No 241248 was one of the Caveat associated with the Lot 15 which was later withdrawn by the Caveator.
   
9. Although there were due diligent searches, records of the original Caveat Dealings were missing from the First Defendant’s office despite memorials being entered against the previous Certificate of Title.
   
10. The Court Orders sort are as follows:
    
    1. That the Caveat Dealings be substituted and to be endorsed again on the original Certificate of Title as per the register of records;
       
    2. Vesting Orders be reinstated; and
       
    3. New Certificate of Title to be issued by the First Defendant.
       
11. In their Affidavit, the First Defendants have admitted there were 9 Caveats lodged in 1986 (of which one was withdrawn) registered on the title as follows:
    

1. Caveat No 240636 lodged by Herandra Singh (f/n Arjun Singh) on 25 August 1986;

2. Caveat No 240637 lodged by Jaswarit Singh (f/n Pratap Singh) registered on 25 August 1986;

3. Caveat No 241246 lodged by Emosi Macawai registered on 3 September 1986;

4. Caveat No 241247 lodge by Narain Dutt (f/n Hari Dutt) registered on 3 September 1986;

5. Caveat No 241248 lodged by Ratu Solo Kalounivutia registered on 3 September 1986 which has been withdrawn;

6. Caveat No 241249 lodged by Phul Singh (f/n Govind Singh) registered on 3 September 1986;

7. Caveat No 241250 lodged by Joe Danford registered on 3 September 1986;

8. Caveat No 241009 lodged by Douglas James registered on 1 September 1986;

9. Caveat No 290994 lodged by Ram Samujh registered on 1 September 1986.

12. The Caveat Dealings for these 9 Caveats are missing and not in the register of Caveats. The First Defendants has admitted they are unable to remove the Caveats as they are unaware of the caveatable interests for each Caveat.
    
13. The Caveat Dealing 241280 is not registered over the property and hence need not be dealt with by this Court.
14. Therefore the Vesting Orders are still in existence and has not been removed, however no new Certificate of Title has been processed until the Caveats are removed or withdrawn.
    
15. The First Defendants does not object to the application and seek further directions from the Court.
    

LEGAL PRINCIPLES AND ANALYSIS

Vesting Orders

16. Under Section 78 of the Land Transfer Act, a Vesting Order recognizes that a person in possession of a property for 30 years, may be vested ownership of the property under law as an estate in fee simple.
    
17. Section 87 of the Land Transfer Act stipulate the factors that the First Defendant must consider when determining an application. These include the following:
    
    1. Possession of land for more than 30 years;
    2. Applicant has satisfied the First Defendant with all requisitions in the notices given by the First Defendant;
    3. The notices have been advertised in compliance with a directive of the First Defendant;
    4. The Caveats lodged against the application has lapsed or has been withdrawn from whole or a part of the land to which the application relates and
    5. Where there is no sufficient reason to the contrary, it is mandatory that the First Defendant grant the application.
       

Caveatable interest

18. Having considered these requirements, it has come to the attention of the First Defendant that there are 8 Caveat Dealings still pending on the memorial of the original title.
    
19. Section 113 of the Land Transfer Act prohibits the transfer of property whilst the Caveat remains in force.
    
20. Although the First Defendant has powers to remove the Caveat if their interests cease to exist within 21 days from registration (section 116 of the Land Transfer Act), the First Defendant admits that she is unaware of the caveatable interests given that the registered Caveats are missing and hence is unable to determine if the interests ceases to exist or otherwise.
    

What is Caveatable interests?

21. Section 106 and 107 of the Land Transfer Act prescribes the procedures for lodging a Caveat as follows:
    

“106. Any person-

(a) claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or

(b) transferring any land subject to the provisions of this Act, or any estate or interest therein, to any other person to be held in trust, may at any time lodge with the Registrar a caveat in the prescribed form, forbidding the registration of any person as transferee or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat.”

Particulars to be stated in and to accompany caveat

107. Every caveat shall state the name, address and description of the person by whom or on whose behalf the same is lodged and, except in the case of a caveat lodged by order of the court or by the Registrar, shall be signed by the caveator or his agent and attested by a qualified witness and shall state with sufficient certainty the nature of the estate or interest claimed and how such estate or interest is derived.”

22. In Cambridge Credit Fiji Limited -v- W.F.G Limited [1975] FJLawRp 25; [1975] 21 FLR 182 Gould, V.P, Marsack J.A and Spring J.A explained:
    

“Section 138 of the Land Transfer Act 1885 (N.Z.) (which was not dissimilar from our Section 106) was discussed in Staples & Co. v Corby and District Land Registrar [1900] NZGazLawRp 157; [1900] 19 NZLR 517 where Stout C.J. at page 536 said:

" Before a person can caveat under this section he must be a person who claims to be entitled to the land, or any estate or interest in the land, or to be ' beneficially interested ' in the land, or in any estate or interest in the land, and the person in either event must claim 'by virtue of any unregistered agreement, or other ' instrument or transmission ' ('transmission' meaning acquirement by title or estate consequent on death, will, intestacy, bankruptcy, & c.), ' or of any trust expressed or implied, ' or otherwise howsoever.

The whole policy of the law was to allow the registration of legal interests only if, then, the plaintiffs have not a legal interest in the land, and are not entitled to an interest either legally or beneficially, they cannot caveat under section 138. They are in this position: Having only a covenant which only binds a purchaser on notice, they have no interest in the land, either legal or equitable, and the Land Transfer system does not recognize trusts or equitable interests on its registry or certificates. If they cannot caveat under section 138 they have no means of bringing their covenant to the notice of intending purchasers. "

Section 106 of the Fiji Act is designed to protect unregistered instruments in land. For instance an agreement for sale and purchase, an unregistered mortgage, an agreement to give a mortgage or an option to purchase land are just a few examples of unregistered instruments which are capable of being protected by the lodging of a caveat.”

23. The Applicant of a Caveat must show in its application a Caveatable legal or beneficial interest. For instances in the case of Ram -v- Toganiyasawa [2011] FJHC 698; HBC 205.2011S where the Defendant, a caregiver, who lodged a Caveat against the property of the Plaintiff on the basis of a Letter of Intent for caregiving, was found not to have any caveatable or equitable interest.
    

Removal of Caveat

24. To remove a Caveat, requires the intending proprietor to seek that the Caveator explain to Court the reasons why his or her interests are such that the Caveat cannot be removed.
    
25. There are three procedures for removal of the Caveats. Two are procedural, requiring either the Caveator to withdraw after notification is made or where a Court order is required to remove the Caveat.
    
26. The third method of removing Caveat is provided in section 168 of the Land Transfer Act. This method is the basis of the application of the Plaintiff.
    
27. Section 168 of the Land Transfer Act is an enabling provision which requires the Registrar to give effect to an existing judgment or order of the Court. The provision is cited as follows:
    

“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.”

28. The Plaintiff refers to the case of Naziya Nisha -v- Aklab Ali and Ayub Ali HBC 88 of 2021 where Amaratunga J held that the registered Caveat be removed (exercising section 168 of the High Court Act) in compliance with the Judgment of the High Court which upheld the distribution of property to the benefit of the Plaintiff and Ordered a new instrument of title be issued and registered pursuant to section 27 of the Act. It was also found that the First Defendant had no caveatable interest in the property although he claimed to be a beneficiary as a son of the second Defendant.
    
29. This Court distinguishes the facts of Naziya Nisha -v- Aklab Ali and Ayub Ali (Supra) with these facts as there is no existing judgment, Decree or Order of the High Court which requires the Court to usurp powers under section 168 of the Land Transfer Act.
    
30. Therefore the Applicant has misconstrued the application of section 168 of the Land Transfer Act.
    
31. The memorial in the Certificate of Title confirms that the Caveats have been properly registered. Their registration is in itself is an encumbrance recognized by law. It injuncts parties from transferring title or to do anything else to the title until the Caveat is removed.
    
32. The memorial is sufficient evidence of the existence of the Caveat dealings. There is sufficient powers of the Registrar with available processes to enable the Registrar to exercise her discretion whether or not to remove the Caveats.
    
33. Once proper notification is made to the Caveators, it is the Caveator that must satisfy the Registrar and show cause that they have legal or equitable interest on the property. Failing to show cause will enable the Registrar to exercise her powers of removal.
    
34. The Vesting Orders by Registrar of Titles has not been removed as yet. Therefore there is no need to reinstate the Vesting Orders when they are already in existence.
    
35. On this basis, the Court will not grant the application.
    
36. Costs will be bourne by the parties.
    

Orders of the Court

37. The Court Orders that:
    
    • (i) That the Application by the Plaintiffs is dismissed;
      
    • (ii) Costs bourne by the parties.
      

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

Ms Senileba L.T.T.Waqinabete-Levaci

Puisne Judge