Ex parte Registrar of Titles, re Filimone and Jaimal [1937] FJLawRp 4; [1875-1946] 3 FLR 208 (23 July 1937)

[1875-1946] 3 FLR 208

SUPREME COURT OF FIJI

Civil Jurisdiction

ex parte REGISTRAR OF TITLES
re FILIMONE AND JAIMAL.

Corrie, C.J.

July 23, 1937.

Crown Lands Ordinance 1888^[1] protected lease-Land (Transfer and Registration) Ordinance-so 113^[2]-application by judgment creditors to notice of judgment against a protected lease-consent by Commissioner of Lands to registration not obtained.

Filimone was lessee of a Crown Lease which was a "protected lease" under the Crown Lands Ordinance I888. Two judgment creditors of Filimone applied for entry of notice of eight judgments on the lease without first obtaining the consent of the lessor to such entry.

HELD –

Judgment creditors cannot have notice of judgment entered on leases protected under the Crown Lands Ordinance 1888^[3] without the consent of the Commissioner of Lands.

PETITION by Registrar of Titles under s.178 of the Land (Transfer and Registration Ordinance) 1933. The facts are fully set out in the judgment.

G. F. Grahame for the lessee.

R. L. Munro for the judgment creditors.

CORRIE, C.J.-This is a petition by the Registrar of Titles under s.178 of the Land (Transfer and Registration) Ordinance 1933. The facts which give rise to it are as follows:-

(1) The defendant Filimone Vatusere is the lessee of Crown Lease No. 174 granted by the Commissioner of Lands.

(2) That lease contains a declaration that it is a protected lease under the provisions of the Crown Lands Ordinance 1888.

(3) The defendants Thakur Singh and Jaimal have each obtained four judgments against the defendant Filimone and a notice of each judgment has been entered in the register by a memorial indorsed upon the lease under s.113 of the Land (Transfer and Registration) Ordinance 1933.^[4]
(4) The defendant Filimone relying upon s.9 of the Crown Lands Ordinance 1888^[5] has applied to the Registrar for such entries to be cancelled.

As it appeared to the Court that the question at issue might affect the lessor, the Commissioner of Lands, he has been made a party to these proceedings.
Section 9 of the Crown Lands. Ordinance 1888^[6] reads:-

"Whenever in any lease or sub-lease from the Crown or from any person on behalf of the Crown there shall have been inserted "the following clause namely:-'this lease is a protected lease under the provisions of the Crown Lands Ordinance 1888 "such "lease or sub-lease except with the written consent of the lessor "cannot be lawfully transferred or sold or mortgaged or hypothecated or pledged nor except at the suit or with the written consent of the lessor can any such lease or sub-lease be dealt with "by any court of law or under the process of any court of law."

S.113 of the Land (Transfer and Registration) Ordinance 1933^[7] provides that when notice of a judgment has been entered in the register by a memorial on the instrument of title to the land sought to be affected, such entry " shall operate as a caveat subject to any prior mortgage against any alienation other than in pursuance of any judgment decree or order or in pursuance of any execution".

S.129 of the same Ordinance provides that:-

"So long as any caveat remains in force prohibiting the transfer "or other dealing with land the registrar shall not enter in the "register any instrument purporting to transfer or otherwise deal "with or affect the land in respect to which such caveat has been" lodged unless such transfer or other dealing is endorsed as subject to the claim of the caveator or unless the caveator consents to such transfer or other dealing".

On behalf of the defendant Filimone it is argued that as the lease is a protected lease under the Crown Lands Ordinance and the Commissioner of Lands has not consented to the proceedings in which the judgment in favour of Thakur Singh and Jaimal were given nor to the entry in the register of notice of those judgments against the land comprised in the lease; and hence that they are not entitled to have entries made which have the effect of caveats against alienation of the land. Against this it is argued that under s.113 notice of a judgment is entered by the Registrar of Titles in virtue of that section alone and without the necesity for an order of the Court; that in consequence such entry is not" the process of any Court of Law"; and hence is not affected by s.9 of the Crown Lands Ordinance.

This argument is undoubtedly well founded, but it does not, in my view, provide an answer to the case put forward by the defendant Filimone. If Thakur Singh and Jaimal are not entitled without the consent of the lessor to execution of their judgments against the land included in the lease-and under s.9 of the Crowns Lands Ordinance such consent is required-they clearly are not entitled to have entered in the register, without such consent, a notice which operates as a caveat against alienation of the land. It follows that the defendant Filimone is entitled to have the entries removed by cancellation of the memorials indorsed upon the lease.

Accordingly it is ordered that the Registrar of Titles do cancel the indorsements relating to the eight judgments in favour of Thakur Singh and Jaimal.

---

^[1] Cap. 88
^[2] Repealed. Vide now Crown Lands Ordinance, 1945, s.15.
^[3] Cap. 120, s.113.
^[4] Cap. 120.
^[5] Repealed. Vide now Crown Lands Ordinance, 1945, s.15.
^[6] Ibid.
^[7] Cap. 120.