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Hannif v Shariff [2012] FJHC 1161; HBC215.2007 (13 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 215 of 2007

BETWEEN:

MOHAMMED HANIF, MOHAMMED KAUSAR
and MOHAMMED SADIQ
all sons of Bakridi of Martintar, Nadi.
Plaintiffs

AND:

MOHAMMED SHARIFF
father's name Mohammed Hakim presently residing in Nadi.
1st Defendant

AND:

THE REGISTRAR OF TITLES
2nd Defendant

Appearances:
For the Plaintiff: Mr. Anu Patel
For the 1st Defendant: Ms. Radhika Naidu (later withdrew)
For the 2nd Defendant: Mr. J.Lewaravu for AG of Fiji

Trial dates: 14/3/2011, 15/3/2011.

JUDGMENT

1. On the 14th March 2011 when this matter was taken up for trial Ms. Radhika Naidu appeared for the 1st Defendant and stated that Solicitors for the 1st Defendant have communicated to the 1st Defendant the trial dates in this case and the consequences of not giving instructions and of not appearing and nevertheless their client the 1st Defendant has not responded. The name of the 1st Defendant was called out inside and outside Court, and the 1st Defendant not appearing the Plaintiffs Counsel Mr. Patel moved to proceed with the trial against the 1st and 2nd Defendants. Ms. R Naidu cited Ram Sharan vs. Kanyawati (1969) 15FLR 220 (C.A.1969 – Gould V.P., Hutchison J.A., Marsack J.A.) and withdrew from the proceedings. In the absence of a Counsel for the 1st Defendant again the name of the 1st Defendant was called out inside and outside Court and there being no appearance for the 1st Defendant, the Court proceeded to trial under Order 35 Rule 1(2) of the High Court Rules against the 1st Defendant together with the trial against the 2nd Defendant.
   
2. The Plaintiffs led the evidence of 3 witnesses; that of Mr. Hari Ram Solicitor (PW1), the 2nd named Plaintiff Mohammed Kauser (PW2) and the Deputy Registrar of Titles Ms. Torika Goneca (PW3), and closed their case marking in evidence P1 to P15. The 2nd and 3rd named Plaintiffs had the Power of Attorney of the 1st named Plaintiff for the purpose of this action which was the 4th Document in the Plaintiffs Bundle of Documents.
   
3. This action was filed in 2007. When I was assigned to Lautoka in the latter part of 2009, there were many matters in Lautoka that had lingered on for over 20 years before the PTC was attended to and fixed before me for trial and thereafter concluded. There were many months that this Court sat daily concluding more than one matter a day while nursing many mention matters, interlocutory applications and injunction applications. The civil backlog that was in the High Court at Lautoka in late 2009 (when I was first assigned), after strategic case management and much hard work now stands successfully dealt with. It is only after attending to the matters that had precedence that this Court is able to take up this matter to deliver judgment.
   
4. Though this case was concluded in March 2011, and written submissions filed in late May 2011 (two months thereafter), due to the substantial number of very old cases and recent cases that constituted a backlog in the High Court at Lautoka (Civil) being taken up and concluded by this Court, leaving only one matter now in my roll instituted in 1993 (and two such other matters in Inoke J's roll), such efforts left in their wake many judgments and miscellaneous orders to be delivered most of them far too numerous and mundane to be put on the web after delivery, for circulation. The matters taken up on directions within the week and even the following week do not appear in the weekly lists, rendering it unadvisable to go by the weekly list alone as to the matters before this Court.
   
5. The evidence and proceedings were taken down by the judge himself in long hand in all such matters and the judge had to await the proceedings to be typed out and put before him when the written submissions are not filed forthwith, before commencing to write the judgment. Stenographers taking down proceedings before any forum do so in rotation to rest their hand, however that was a luxury this Court did not enjoy as this Court had to take down the proceedings as well as control the trial continuously without a break.
   
6. For the Court to commence writing the judgment the case file needs to be referred to the judge by the registry only once the typed proceedings and the submissions are ready in such cases. The Lautoka High Court Registry is still without a Filing Clerk or a Record Keeper. The frequent change of Court Clerks, the deprivation of the use of the judges Chambers by this judge for several days last year and even this year, the bad weather and the floods in the Western Division in the early part of this year (January –February) which left the Registry closed or under staffed on some days too was not helpful.
   
7. Frequently matters are put before a judge for directions and for interim injunctions when he is in the middle of writing a judgment which further differs the judgment writing process. Nevertheless undeterred this Court was able to deliver judgments continuously leaving this case and a few other cases coming from last year to be attended to this year sacrificing much of my personal time. Since the retirement of two civil judges in Lautoka two months ago the unanticipated workload that fell upon this Court has left even little time for this Court to attend to those few judgments (including this) after trial now left to be delivered which as such were differed by two months at least for that reason alone. Urgent applications for stay in respect of judgments delivered by the retired judges left this Court with the additional task of having to read unfamiliar voluminous case records within a short period of time and deliver such orders (case No. HBJ 3 of 2011 etc). Civil work that was diverted to three other judges was all diverted to this judge. Under the circumstances this judgment could not have been humanly possible to have been delivered any earlier. Not only the judgment in this case (No. 215 of 2007) but also the judgment in case no.216 of 2007 too is now ready due to be delivered today immediately after this case. As such for delivering this judgment before 13 months after the trial and written submissions, this Court has done the best that could be done under the above and other peculiar circumstances. If not for the retirement of the other two civil judges this judgment would very likely have been delivered two months ago.
   
8. It may be a fact that this Court had delivered judgments within a week of the conclusion of some trials, however upon late filing or seeking longer dates to file written submissions and the above and other circumstances that intervened beyond the control and the means of this Court, such promptness was made impossible in such other cases.
   
9. In two years the number of circulated judgments only was over 130, being more than one judgment per working week, and with the number of judgments not circulated exceeding that number the average may well have exceeded two a week. I was informed by the Registry and the Court Clerks that such number of concluded cases and judgments delivered is by far the highest to their recollection. A judge has to make haste slowly (festina lente) and the litigants have to bear the consequences of their own delay. This judge is not responsible for the delay (11 yrs) from 1999 till at least 2010. All this I am compelled to state due to some correspondence the 2nd named Plaintiff Mr. Kausar is said to have had with the Registry and the Hon. Attorney General which was brought to my notice by the Chief Registrar.
   
10. Though the dispute between parties appears to have originated allegedly on a Deed of Compromise entered in to on the 9th of November 1999 (P1), the Plaintiffs have come to Court in this action after 8 years and that too on the 1st Defendant seeking to have a transmission by death registered in the particular Certificate of title. Even the Pre Trial conference was attended to in 2010 three years after the institution of the action in 2007. After I was assigned to the High Court at Lautoka in the latter part of 2009 the PTC was attended and the matter put up to be fixed for trial within 12 months like many such other cases which now stand concluded.
    
11. In the Pre Trial Conference minutes the following issues were agreed upon between the Plaintiffs and the Defendants;
    

"AGREED ISSUES

1. Whether clause 2 of the Deed of Compromise made the 9th day of November 1999 constituted a valid renunciation of the rights title and interest of the estate of Hakim in respect of the lands and improvements contained in Certificate of Title No. 11668 (part of) being Lot 6 on DP 6731 in favour of the Plaintiffs.

2. Whether the execution of the Deed of Compromise by Jaitun Bibi was lawfully obtained.

3. Whether the Plaintiffs are entitled to:-

(i) A declaration the Plaintiffs are entitled to be registered as proprietors of the one undivided fourth share registered in the name of Mohammed Hakim in the land comprised and described in Certificate of Title No. 34147;

(ii) Whether the First Defendant is estopped from denying the assignment of the one undivided fourth share of the estate of Hakim to the Plaintiffs;

(iii) Whether the Plaintiffs are entitled to an Order of this Honourable Court that the First Defendant do all things necessary to convey to the Plaintiffs a registrable transfer of the one divided fourth share of the estate of Hakim to the Plaintiff.

4. Whether the First Defendant was guilty of fraud in attempting to procure the registration of the one fourth share of the estate of Hakim in the lands comprised and described in Certificate of Title No. 34147.
   
5. Whether the Plaintiffs are entitled to damages.
   
6. Whether the Plaintiffs are entitled to costs and on what basis."
   
12. In the Statement of Claim of the Plaintiffs however, the Plaintiff claims only for the following relief's;
    

"Wherefore the Plaintiffs Claim:-

(i) A Declaration that in attempting to procure the registration of transfer No. 660518 against the Certificate of Title No. 34147 the First Defendant has acted fraudulently in the sense of being dishonest and unlawful and in acting wrongfully in attempting to procure the registration of a one undivided fourth share in his name of the lands comprised and described in Certificate of Title No. 34147;

(ii) For an Order directing the Second Defendant to cancel the entry of transfer no. 34147 in the Registrar of Lands;

(iii) A Declaration the Defendant is not entitled to be registered as the proprietor of one fourth undivided share in the lands comprised and described in Certificate of Title No. 34147;

(iv) Damages;

(v) Costs."

13. The Plaintiffs case is that the 1/4th share of Hakim in a parcel of land had been agreed to be renounced (conditionally) by his Administratrix (Jaitun Bibi), and that the 1st Defendant has made an attempt to have that 1/4th share registered to himself fraudulently. The 1st Defendant also happens to be the Administrator of the estate of Jaitun Bibi. The corpus appears to be the 1/4th share (undivided) of the land described in CT No.34147. However Certificate of Title No.34147 is not mentioned as such in P1the Deed of Compromise. The agreement for renunciation is alleged by a Deed of Compromise P1 (9/11/1999) over 12 years ago. It is for the Plaintiffs to have complied with the terms to which the renunciation is subject to and obtain the acknowledgment and a Deed of Renunciation thereof from Jaitun Bibi and register that renunciation with the Registrar of titles or as advised by their lawyers, which would have left the Plaintiffs as the co-owners to the exclusion of Hakim. However when the 1st Defendant had proceeded to register a 'transmission by death' admittedly Hakim still appeared as a co-owner. As such given the presumption of ownership under the Torrens system Hakim is still a Co-owner and an attempt per se by the 1st Defendant to have himself registered as the co-owner in place of Hakim (his now deceased father) after the death of Jaitun Bibi (the Administratrix and widow of Hakim) does not by itself cast a burden on the 1st Defendant to prove his actions were not wrongful or not fraudulent as the burden would first be with the Plaintiffs, and in proving fraud would remain with the Plaintiffs.
    
14. It transpired in evidence that the 1st Defendant had in fact given notice of his intention to have a registration of a 'transmission by death' affected at the Registrar of Titles by giving some copies of such documents to the Plaintiffs (being his uncles) which is not compatible with a fraudulent intent.
    
15. Plaintiffs 1st Witness stated that there were 3 connected cases in the High Court in respect of the dispute, however the Plaintiff did not disclose to Court the final orders or status of those cases. The Deed of Compromise (P1) deals with many parties seeking to agree to compromise subject to conditions on many disputes. It is for the parties to include in such agreements clear and specific steps and a time line for compliance with conditions and enforcement. There may be no perfect Deeds of Compromise, but at least they must be followed up as to compliance without delay so that parties can be held to what they meant and understood by such Deeds when it is still within their memory. It is now over 12 years and Jaitun Bibi is not among the living. The amount of $23260/- said to have been paid to a trust account by receipt (P2) refers to a High Court case and does not show whether it is paid in respect of the Deed of Compromise P1. Whether P2 is duly stamped to be admissible is another aspect that Counsel may give their mind to. Though the amount may be the same as in the Deed of Compromise it is not paid within 14 days of the execution of P1(9/11/1999) as required at the end of clause 1 at page 3 of P1! The P2 receipt is dated (9/12/1999) one month after the execution of P1! Parties have had many disputes and cases between them, and there is no Deed of renunciation by Jaitun Bibi in respect of the 1/4th undivided share of the land UPON THE PAYMENT OF $23260/- which could have been submitted for registration. The payment of such monies was YET AGAIN not the only condition in the Deed of Compromise. It may well be that all such conditions therein had to be met before any of the compromises are affected. The Plaintiffs have slept over the Deed of Compromise P1 for over 8 years, and cannot now expect the Court to go on a voyage of discovery and remedy. Legal advice they must seek and obtain from their lawyers. In any event, there is no cogent evidence for this Court to order specific performance.
    
16. The land described in the Deed of Compromise marked P1(at clause 1,2 and in Schedule1) may be the same land at least as per the extent, lot number and the Deposited Plan as described in CT No. 34147 being 7.3467ha being lot 6 on DP 6731 situate in Viti Levu though CT No.34147 is not mentioned (as it did not exist at that time) in P1. Nevertheless it is the function of the Registrar of Titles to verify such matters upon any transfer or renunciation sought to be registered on the title. In the Statement of Claim the Plaintiffs do not seek the relief of specific performance or a declaration that the Plaintiffs be declared as entitled to be registered as the only owners to the exclusion of Hakim. (Therefore such causes of action may survive this action).
    
17. The relief's sought In the Statement of Claim defines the extent of the Plaintiffs case and the Plaintiff cannot expand the cause of action by additional issues at the PTC without amending the Statement of Claim accordingly with the corresponding right of the Defendants to amend their respective defenses.
    
18. The Plaintiff does not appear to have amended their Statement of Claim to accommodate the additional issues in the PTC and as such this Court shall restrict itself to the reliefs sought in the Statement of Claim, as the Plaintiff too opted to proceed in the absence of the 1st Defendant at the trial.
    
19. The witness for the 2nd Defendant the Registrar of Titles have given evidence that the application made by the 1st Defendant by way of transmission by death under section 93 and the application for transfer under section 44 (by the 1st Defendant) was not completed and not affected and the documents were returned to the 1st Defendant.
    
20. Therefore the relief sought by the Plaintiff has already been affected by the 2nd Defendant Registrar of Titles in not completing the relevant transactions. However for the Plaintiffs to obtain a declaration that the 1st Defendant sought to have the said transactions completed and registered fraudulently, the Plaintiffs have to prove such fraud. It could well be possible that the 1st Defendant may have proceeded to register the said transaction believing that he is entitled to do so given the length of time lapsing between the date in P1 (9/11/1999) and the attempted registration of the Transmission by Death on or about the 15th December 2006 (date as suggested by the Plaintiffs) being over 7 years together with the fact that Hakim still admittedly appears as a co-owner with the Plaintiffs in the title, all of which would definitely not amount to fraud. Therefore relief (i) cannot be granted.
    
21. Nevertheless the Plaintiffs may be entitled to the (ii) relief in their Statement of Claim as the witness for the Registrar of Titles has admitted in evidence that the attempted registrations are irregular. The manner in which the particular clerks have attempted the registration according to the evidence of the witness from the 2nd Defendant was at least irregular, though no steps appear to have been taken against those clerks. The evidence suggests especially in view of P10 and P10A, that the said folio entries in fact appear to have been cancelled. The 2nd named Plaintiff too in evidence stated that as such the Plaintiff is not seeking that relief. Therefore relief (ii) is not granted.
    
22. It is not possible for a Court to make a wide declaration as sought in relief (iii) in the Statement of Claim as it would prevent the 1st Defendant at any time in the future of having himself registered as the proprietor of one fourth undivided share in the land if he gains a transfer from any one of the plaintiffs who are his uncles and as matters stand he may well be entitled to do as the $23260/- had not been paid within 14 days as agreed and required as per clause 1 at page 3 of P1 .
    
23. There was no evidence of damages led or a causal connection established to any alleged damage suffered by any acts of the 1st Defendant. The fact that a deed of renunciation had not been submitted for registration by the Plaintiffs to the 2nd Defendant cannot be held against the 1st Defendant. It is the Plaintiffs who appear to have not taken the steps for well over 7 years and even thereafter not amended the relief's to their Statement of Claim. Their inability to lease the land appears to be by their own making. Therefore the relief for damages is denied. As a formal requirement to answer the issues (PTC) this Court as such answer the issues as follows;
    
    1. 1st Issue – conditions and especially condition to pay within 14 days as per clause 1 at page 3 of P1 the sum of $23260/- not complied with by the Plaintiffs, and as such issue 1 answered in the negative.,
    2. 2nd issue – does not arise.,
    3. issues 3(i),(ii) & (iii) - answered in the negative.,
    4. issue 4 – answered in the negative.,
    5. issue 5 – answered in the negative.,
    6. issue 6 – parties to bear their costs.
       

Orders on judgment;

1. Plaintiffs action dismissed.,
2. Parties to bear their costs.

100. The Acting Deputy Registrar High Court Lautoka is directed to serve Copies of this judgment on the Hon. Attorney General and the Chief Registrar.
     

Hon. Justice Yohan Fernando
JUDGE.

High Court of Fiji
At Lautoka
13th June 2012.