Dr. Sahu Khan for the Appellants
Mr. Moses Gago for the 2nd Respondent
Date of Hearing: 10th May, 1993
Date of Delivery of Judgment: 25th November, 1993
JUDGMENT OF THE COURT
We suppose that Courts often wonder how it comes about that matters are brought to Court or that appeals are taken from decisions
made in them.
The first defendant was, at least in 1973, a developer of land. It can be inferred from the evidence that it acquired an area of land,
being the whole of the land comprised in CT 11650, and proceeded to draw up a plan of subdivision, one of the lots of which was Lot
49. On 16th November 1973 it contracted to sell Lot 49 to the first appellant. Whether it was then or ever in a position to confer
a legal title on the first appellant is not known. Certainly no separate title did ever exist, so far as this case is concerned.
By November 1981 the first appellant had paid to the developer the full purchase price. On 30th November 1981 the developer gave him
what is called a transfer, clearly on a form suitable for registration under the provisions of the Land Transfer Act Cap 131. Whether it could have been registered then or later seems to have been regarded as immaterial. Perhaps it was. There was
no separate title ever in existence for this lot as far as we are aware, certainly not at any time material to these proceedings.
The transfer that the first appellant received referred to the land in question as the whole of the subdivision and proceeded to
transfer to the appellant "all the transferor's estate and interest in the said land" (record p.9). The description given
of the land was Lot 49 on the deposited plan. However, as we said, any deficiencies in the so called transfer turn out to be irrelevant.
The transfer was not lodged for registration. No caveat was ever lodged by or on behalf of the first appellant.
On 2nd May 1983 the Commissioner of Inland Revenue caused to be registered on the title to the land a charge to secure a debt owing
to him by the developer. Seeing that the registered owner of the whole of the land, including Lot 49, was the developer, it became
a charge effective over this Lot.
What might be called a peculiar transaction took place. On 25th October 1991 an agreement was entered into by which the first appellant
is said to have agreed to sell Lot 49 to his wife, the second appellant. Clause I provided that the purchase price was to be paid
by the purchaser and possession was to be given "upon acceptance of a registrable transfer of the said land for registration
by the Registrar of Titles by the 31st day of October 1991" (record p.10). That gave six days. Clause 6 was:
"6. PROVIDED ALWAYS that if the Commissioner of Inland Revenue has not withdrawn his charge by the 31st day of October, 1991 the Purchaser shall be entitled
to rescind the agreement without any liabilities."
It was unnecessary for the Judge to say anything about the genuineness of this agreement, so we do likewise. He did note that the
agreement had not been stamped, but accepted an undertaking from counsel.
On 7th November 1991, that is after the lapse of a further six days, proceedings were commenced by the first and second appellants.
They sought an order that the Registrar of Titles be ordered to register the transfer of Lot 49 to the "plaintiffs" (there
was no such transfer) upon the basis that the developer was holding the Lot as trustee for the "plaintiffs", which it was
not, and that the charge in favour of the Commissioner of Inland Revenue did not have priority over the rights of the plaintiffs
in respect of the Lot, so that the charge should be removed so as to enable registration of transfers from the developer to the first
appellant and from him to his wife.
The trial Judge virtually dismissed the originating summons out of hand, and rightly so.
The Income Tax Act Cap 201 creates an automatic charge over all realty of a person liable to pay monies in respect of certain matters (s.76(3)). There
is no challenge to the existence of such a charge over the realty of the developer here. The Land Transfer Act provides that no estate in a transferee of land arises until registration of the necessary document. Not only was the necessary document
not lodged for registration here, but so far as we can tell there wasn't one. As the Judge pointed out there are procedures provided
under the Act for protection of the interest of purchasers such as the one that was created here, and which, if followed, allow a
purchaser to take such steps as may be necessary to ensure that any interest which is entitled to priority over a later one can be
given effect to. Whether such procedures could be used to obtain priority here over a charge created by statute can await another
day. The first appellant did not avail himself of those procedures.
The appeal will be dismissed with costs of the second respondent to be paid by the appellants. It does not surprise us that the developer
did not appear at the hearing of the appeal.
Mr. Justice Michael M. Helsham
President Fiji Court of Appeal
Sir Moti Tikaram
Resident Justice of Appeal
Abu0012u.92s
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