Sagacity Investment Pte Limited v. The Registrar of Titles

• Jurisdiction: Fiji
• Judgment Date: 11 January 2023
• Court: High Court (Fiji)
• Date: 11 January 2023
• Counsel: Plaintiff: Ms. Muir,1 and 2 Defendants: Ms Harikrishan. A,3 Defendant: Mr. V. Singh and Ms Naco. M
• Docket Number: Civil Action No. HBC 247 of 2022

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 247 of 2022

Between:

Sagacity Investment Pte Limited, a limited liability company having its registered office at 153 Ratu Sukuna Road, Nasese, Suva

Plaintiff

v.

The Registrar of Titles Level 1, Civic Towers Building, Victoria Parade, Suva.

First Defendant

and:

The Attroney General of Fiji as the legal representative of the First Defendant, Suvavou House, Victoria Parade, Suva.

Second Defendant

and:

Paul Phillips of 1 Coconut Drive, Sonaisali, Nadi, Company Director

Third Defendant

Date of Hearing: 14.2.2023

Date of Judgment: 11.4.2023

Counsel:

Plaintiff: Ms. Muir

1^st and 2^nd Defendants: Ms Harikrishan. A

3^rd Defendant: Mr. V. Singh and Ms Naco. M

Catch Words

Land Transfer Act 1971 Sections 23,103,104,165,166,167,168. Priority of instruments — orders directed to Registrar of Titles — Order 42 rule 4 of High Court Rules 1988, Section 53 of Companies Act 2015

JUDGMENT

INTRODUCTION

1. Plaintiff instituted this action invoking jurisdiction in terms of Section 168 of Land Transfer Act 1971 and also Order 7 and 28 of High Court Rules 1988 and inherent power of the court. Plaintiff had sought to register of three titles and instruments, pursuant to purported sale and purchase agreements entered with respective vendors. All three land parcels were iTaukei Leases that required consent of Itaukei Land Trust Board (ILTB) in terms of Section 12 of Itaukei Land Trust Act 1940. The vendors were reatrained not to deal with said titles. The court made these orders on 26.10.2020 but it was not registered on the title, and vendors entered with Plaintiff purported sale and purchase agreements. Despite the order of the court restraining ILTB, it had illegally, consented to the purported sale in violation of the said order of the court made on 26.10.2020. The order of court made on 26.10.2020 inter alia directed first Defendant to enter caveats against all three titles. This court order was sealed on 17.12.2021, and served to first Defendant on 20.12.2021. Plaintiff had lodged purported transfers of same three land parcels on 8.12.2021 and seeks an order to direct first Defendant to register the transfers, on the basis that application for transfers were made before the order of the court was served to first Defendant.

Before the transfer of the three land parcels in pursuant to purported sale and purchase agreements and respective consents obtained in violation of court order, first respondent received, orders made on 26.10.2020. First Respondent did not register the Plaintiff s transfers and desired to seek directions of the court in terms of Section 165 of Land Transfer Act 1971. Plaintiff had requested that application to be withdrawn by first Defendant and filed this originating summons.

Plaintiff is seeking priority contained in Section 23 of Land Transfer Act 1971 to register unlawfully entered sale and purchase agreements, and illegally obtained consent of ILTB for said transfers for registration. The purported consent of ILTB granted in violation of court order and purported sale and purchase entered in violation of court order cannot be the basis of court order for registration when these facts were brought to the notice of first Defendant prior to registration. Order of the court made on 26.10.2020 was a direction aimed at first Defendant to register three caveats and Section 23 of Land Transfer Act 1971, has no application to such an order.

FACTS

2. The Plaintiff has initiated these proceedings by way of an Originating Summons dated 31.8.2022. seeking clarifications in orders (a).(b) and (c) regarding non registration of three transfers by first Defendant.

3. Plaintiff's ‘claim’ is contained in prayer (d) of the Originating Summons where it seeks to register three transfers and mortgages relating to the following properties iTaukei Lease Nos. 26608, 32670 and 32671. (the Properties);

4. Third Defendant has filed proceedings in the High Court at Lautoka in HBC 140 of 2019, seeking specific performance of an agreement to sell and transfer the Properties to him.

5. On 17.9.2020 an order was made restraining the dealing of the Properties in HBC 140 of 2019. This was an interim order on an application that the Third Defendant had filed seeking orders restraining any dealing with the Properties until HBC 140 of 2019, was a determined.

6. On 26.10.2020 inter alia an order was made on the application restraining any dealing with the Properties in the following manner

“‘1. The Registar of Titles shall enter a caveat (sic) on the properties comprised in iTaukei Lease No 26608. iTaukei Lease No 32671 and iTaukei Lease No 32670 and Agreement to Lease with the reference number LD No 60/1020 in favour of the Plaintiff until determination of this action.’(emphasis added)

7. Apart from above order there was restraining order against all eight Defendants including vendors of the Properties and ILTB, preventing them from dealing with the Properties.

8. This order was not registered on the titles of the Properties when Plaintiff entered sale and purchase agreements with the vendors (who were restrained by court order made on 26.10.2020) and consent of ILTB was granted (again in violation of court order made 26.10.2020).

9. Upon perusal of the titles there were no judgments registered so Plaintiff lodged the documents to transfer the Properties on 8.12.2021. Subsequently, third Defendant who was the Plaintiff in HBC 140 of 2019, sealed the orders made on 26.10.2020 and submitted it to first Defendant, on 20.12.2021.

10. First Defendant, who was not a party to HBC 140 of 2019. was directed by court to register three caveats on the titles of the Properties on 26.10.2020, until final determination of the action and this action had not concluded.

11. First Defendant, had refused to register the three transfers to the Properties to Plaintiff submitted on 8.12.2021 as they remained in unregistered state till the receipt of sealed order of 26.10.2020

12. Plaintiff seeks an order /direction to first Defendant to register three transfers of the Properties irrespective of violations of court order by vendors and ILTB and also to contravene order of the court made to first Defendant to register three caveats on the titles of the Properties!

Counter Claim — Section 165 of Land Transfer Act

13. First Defendant, had also stated that a Court order in HBC 140 of 2019 is dated as of the day on which it is pronounced and it takes effect from the day of its date, hence seeks court's direction on registration of Plaintiff s instruments, (see paragraph 26 of the affidavit of Krystal Prasad). Accordingly, I consider this request as counter claim by first Defendant seeking directions of the court in terms of Section 165 of Land Transfer Act.

ANALYSIS

14. The issue before the court is whether Plaintiff's lodgment instruments including transfers on 8.12.2020 of the Properties should obtain ‘priority’ irrespective of orders of the court made on 26.10.2020 aimed at first Defendant to register three caveats on the Properties. This order was served to first Defendant on 20.12.2020.

15. Plaintiff's claim under originating summons is made in terms of Section 168 of the Land Transfer Act 1971 states

“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.” (emphasis added)

16. The Plaintiff in these proceedings has not obtained any Court order or Judgment that it is seeking to give effect to. In contrast Plaintiff is seeking orders of the court to direct first Defendant to ‘give’ effect to purported sale and purchase agreements and purported consent of ILTB obtained in violation of court orders by vendors and ILTB.

17. In my mind Plaintiff could summon first Defendant in terms of Section 164 of Land Transfer Act 1971 which states.

“164.-(l) If, upon the application of any person interested to have any instrument registered, or to have any instrument, instrument of title, foreclosure order, vesting order or other document issued under the provisions of this Act. or to dispense with the production of any instrument of title, or to have any act or thing done or performed by the Registrar, which the Registrar refuses so to do, such person interested may require the Registrar to state in writing the grounds of his refusal and such person may, if he thinks fit, at his own cost, summon the Registrar to appear before the court to substantiate and uphold the grounds of his refusal, such summons to be issued out of the court and to be served upon the Registrar six clear days at least before the day appointed for hearing the complaint of such person.

18. Plaintiff could summon the first Defendant to court to ‘substantiate and uphold’ the ground for not registering the transfers presented by Plaintiff on 8.12.2021 for over a year. In terms of Section 164 of Land Transfer Act 1971 only first Defendant can be made a party, subject to directions of the court to add necessary parties. Such a hearing is quick and limited, and serves the purpose in a stale mate, situation such as this.

19. First Defendant...