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Singh v Singh [2012] FJHC 1434; HBC350.2003 (7 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 350 OF 2003

BETWEEN:

BIRMATI SINGH f/n Randhir Singh of Tuvu, Ba
Plaintiff

AND:

PRADEEP SINGH
f/n Jaswant Singh of Tuvu, Ba but now of Nasoso, Nadi.

INDIRA DEVI
retired of Carlton Victoria, Australia.

SUNIL DEEP SINGH
of 63 Gallipoli Parade,
Vascoe Vale South Melbourne, Director of Computer Company.

JAI DEEP SINGH
Qantas Flight Attendant of Broadmeadows, Victoria, Australia.

PRATIMA DEVI SINGH
Public Servant of Northcote, Victoria, Australia.

KAMAL DEEP SINGH
Businessman of Toronto, Canada.

CHANDRA DEEP SINGH
of Surrey, BC, Canada.
Defendants

Before : Master Tuilevuka

Appearances : Mr. Sunil Deep Singh, the third defendant, appearing for himself and (by virtue of various powers of attorney granted to him) for Birmati Singh and all the other defendants except Pradeep Singh.
Mr. Anu Patel for the 1st defendant.

Date of Ruling : 07 November 2012.

DIRECTIONS
(Signing of Survey Plan)

BACKGROUND

[1]. This matter that has been pending in court for over nine years now. The background is documented in various rulings and directions of Mr. Justice Connors, Master Udit and mine. The late patriarch of the Singh family had, amongst other things, bequeathed his surviving spouse, and their eight issues, a large piece of freehold property along the Kings Road at Tavarau, West, Ba. The property is described as Certificate of Title no. 7736. It is rumoured to be amongst the most sought after in Fiji. I can say, having visited the site myself on one occassion, that the rumour is well founded.

[2]. The Singh siblings (Surya, Indra (now deceased), Sunil, Jai, Pratima, Kamal, Chandra and Pradeep) – together with their mother, Birmati, are beneficiaries of the Singh estate. Initially, the siblings had quarrelled about their shares in the particular estate property in question. That led to the filing of this claim.

THE CONSENT ORDERS

[3]. The parties however did manage to settle on the above score. The terms of their settlement received judicial sanction and became the consent orders of Mr. Justice Connors in July (see below).

(i) whole of Certificate of Title No, 7736 to be divided into nine (9) equal lots.

(ii) the subdivision and valuation of the said nine (9) lots is to be done by an independent valuer to be Court appointed in the first instance and such appointment to be made within 14 days of this Order.

(iii) the costs of subdivision and valuation is to be paid from the cane farm proceeds presently held with the ANZ Bank at Lautoka and such other Bank as is in receipt of cane farm proceeds and this includes future cane proceeds up to the date of subdivision and any shortfall between the cost of subdivision/valuation and the funds available, the same shall be paid in equal shares by the parties herein.

(iv) the parties herein to do all things necessary to effect complete subdivision/valuation and this here undertaking binds the successors and assigns of each of the parties herein and the subdivision/valuation is to be completed within six months of this Order.

(v) upon completion of subdivision and valuation the said nine (9) lost are to be placed in common pool in a manner by mutual agreement or the most senior party herein having the first draw and the other parties to follow suit.

(vi) the abovementioned drawing of the lots is to be supervised by the Deputy Registrar, High Court, Lautoka and such drawing of lots is to be done within thirty days of completion of subdivision/valuation.

(vii) upon completion of the draw by each party herein there is to be a equality of exchange in value amongst the said nine (9) lots and the difference of payment if any is to be made within ninety days of confirmation of any such difference.

(viii) all parties are to do all things necessary to effect issuance of separate certificates of title to each party herein over their chosen lot.

(ix) there is to be no Order as to Costs of these proceedings.

ONGOING WRANGLE

[4]. Despite the consent orders, the Singhs' wrangle on over the mechanics of how the subdivision is to be carried out (see previous rulings and directions), with Pradeep (the eldest, Mr. Patel's client) alone on one side - and the rest of the siblings together with the matriarch of the Singh family, on the other. The history of their differences might be summarised as follows:

• (i) firstly – they had disagreed over the choice of surveyor to carry out the work from a pool of tenderers. This was eventually resolved by Master Udit vide his ruling dated 12 November 2008 wherein he had appointed Brij Lal & Associates[1] as surveyor (upon seeing that the Singh siblings could not possibly agree on this).
  
• (ii) secondly, upon the sudden death of Mr. Lal barely a month after his appointment – the parties disagreed over the question of whether to call for a fresh tender from surveyors, or to simply accept Brij Lal & Associates' recommendation of Pro Survis & Development Consultants to take over the survey and subdivision work.
  
• (iii) thirdly – upon the appointment of Pro Survis by this Court on 08 December 2009 (after hearing parties out), the parties still disagreed as to whether "nine (9) equal lots" as per Order (i) of the Consent Orders mean that the property should be divided into "9 lots of exactly the same value". The parties also disagreed over various aspects of the methodology with which Pro Survis was carrying out the work (as recorded in my Directions dated 23 July 2010).
  
• (iv) fourthly – after that was resolved (after hearing parties out and upon various reports from Pro Survis) with directions to Pro Survis to press on (as recorded in my directions dated 10 November 2011), and now that Pro Survis has completed the work with all approvals in place on the Survey Plan, and with the approved plan ready for lodgement with the Registrar of Titles, questions are still being raised as to the plan's compliance with the Subdivision of Lands Act (Cap 240) and Regulations.
  

UPDATE ON SUB – DIVISION WORK

[5]. The subdivision work at this stage is almost complete. Pro Survis has carried out:

• the initial surveys and field work and
  
• completed all calculations and
  
• prepared proposal plans and diagrams pursuant to section 5(2) of the Act.
  
• presented the proposal plans to survey plans for approval by all government regulatory agencies and stakeholders. The Director of Lands has approved and certified the plan pursuant to section 12 and 13 of the Act.
  
• obtained approval from the relevant authorities (Ba Rural Local Authority, Director of Town & Country Planning, Director of Lands being the main ones).
  
• drawn up a Survey and Sub Division Plan which has been approved by the Ba Rural Local Authority, the Director of Town and Country Planning.
  

[6]. With all the above approvals in place, the next step is to simply present the Survey Plan (sub division plan) to the Registrar of Titles for endorsement which will complete the technical process. Pro Survis did in fact present the completed Survey Plan to the Registrar of Titles for endorsement signed by the Deputy Registrar. However, the Office of the Registrar of Titles requires evidence of a Court Order authorising the Deputy Registrar to act as such.

SIGNING OF THE PLAN

[7]. Meanwhile, the Registrar of Titles has indicated to Pro Survis that he would only accept the Survey Plan if evidence was produced before him that the Deputy Registrar had signed the plan pursuant to a Court Order. For the record, I did refer the Survey Plans to the Deputy Registrar on the mistaken belief that it was so ordered previously by Connors J.

[8]. I have reviewed the previous Orders made. No Order was ever made for the Deputy Registrar to sign the same for and on behalf of the Singhs. The only Order that Mr. Justice Connors made in relation to the Deputy Registrar was for her to supervise the drawing of the lots after the subdivision process is all completed.

[9]. For the record, I have considered the question of whether or not this Court does have jurisdiction to rectify the error and simply Order the Deputy Registrar to act as such. I am satisfied that I do possess such jurisdiction. In my view, this is a chamber matter and pursuant to Order 59 Rule 2(a):

The Master shall have and exercise all the power, authority and jurisdiction which may be exercised by a judge in relation to chamber applications........

[10]. I say this is a "chamber matter" because the issue is essentially "housekeeping" and "procedural" in character of which no viva voce evidence is required and which pertains merely to the mechanics of the consent orders of Connors J.

[11]. I record here that Mr. Sunil Deep Singh has already confirmed in Court that the other defendants have seen the Survey Plan and are amenable to signing it. I do not doubt this as they have all been supportive of Pro Survis' work all along. Some of the defendants are in Canada. The majority live in Australia. I presume that he speaks also for the executors or administrators of the estate of the late Indra Singh. However, i will require an affidavit from them (see Directions below).

[12]. In the circumstances, I ask whether or not it would be appropriate to simply Order that the Deputy Registrar of the Lautoka High Court should sign the Survey Plan in lieu of the parties who have no problems with the Survey Plan. I see no reason why not – but only upon production of sworn affidavit evidence (appropriately notarised) that the other parties (including the executors/administrators of the estate of Indra Singh):

• have seen the final Survey Plan (a copy of which should be attached to their affidavit), and
  
• are prepared to sign the Survey Plan in its current form (referring to the attached Survey Plan), and
  
• that they have no problem with the Deputy Registrar signing on their behalf.
  

[13]. For the record, I did ask Mr. Patel in Court as to whether or not his client would sign the document. His reply was that his client would not as he has queries about the Survey Plan's compliance with the Subdivision of Lands Act (Cap 140) and related regulations. I have also asked myself as to whether or not an Order from this Court to formally direct the Deputy Registrar to sign the Survey Plan in lieu of the 1st defendant would be appropriate. I have resolved that such an Order would be appropriate only if - after due consideration to Mr. Patel's client's concerns, I still consider it necessary to proceed with the survey plan in its current form.

1ST DEFENDANT'S CONCERNS

[14]. Mr. Patel's client is concerned about the survey plan's compliance with section 6 of the Subdivision of Lands Act (Cap 140) and Regulation 5 of the Subdivision of Lands Regulations. Section 6 of the Act states as follows:

Board to send copy of application to local authority

(i)

6. The Director shall, as soon as may be after receipt of the application send to the local authority one copy thereof together with one copy of the proposed plan or diagram and a copy of any other document, diagram or plan required by the Director under the provisions of section 5.

(my emphasis)

[15]. Section 5 states as follows:

Application to be made to the Director

5. Any person who desires to subdivide land in a manner which requires the approval of the Director as provided in section 4 shall submit in duplicate an application in writing to the Director.

(2) Such application shall be accompanied in each instance by a proposal plan or diagram in quadruplicate drawn on stout white paper in such manner and to such scale as may be prescribed.

(3) Such proposal plan or diagram shall show-

(a) the particulars of the instrument of title under which the land is held;

(b) the situation and boundaries of the land and of the lots immediately adjoining the land;

(c) the position and width of all roads, streets, lanes or pathways abutting on the land and the position of all streams, water-courses, water-holes, sewers and drains, if any, in the immediate vicinity;

(d) the manner in and the purposes for which it is intended to subdivide the land and the areas and dimensions of all the lots;

(e) the position and width of roads, streets, lanes or pathways to be made over and through the land;

(f) the intended position of the surface drains and the direction of flow or discharge thereof;

(g) and if so required by the Director, the levels of the present surface of the ground above some known datum sufficient to determine the intended level and rate or rates of inclination of the intended roads, reefs, lanes or pathways, and the levels and inclinations of the existing roads, streets, lanes or pathways with which it is intended that such roads, streets, lanes or pathways shall be connected;

(h) the position of all existing buildings erected on the land or within ten feet of the boundaries of the land proposed to be subdivided.

(ii)

(4) Every such application shall also be accompanied by-

(a) A statement in writing of the provisions which have been or will be made for the construction and maintenance of any road, street, lane or pathway or of any drain shown on the proposal plan or diagram and of the provisions which have been or will be made for the supply of water to the area and for the disposal of refuse, waste-water and night-soil; and

(b) All such other or additional documents, statements, information, plans or diagrams of whatsoever description as the Director may require.

[16]. Regulation 5 states as follows:

Additional information to be shown

5. In addition to the requirements set out in section 6 of the Act, the proposal plan or diagram shall show or, where appropriate, shall be accompanied by-

(a) the particulars of the instrument of title under which the adjoining land is held;

(b) the approximate width of any stream, creek or river that forms a boundary, and its direction of flow;

(c) the approximate position and extent of any beach or other similar feature where the sea or its inlets form a boundary;

(d) the correct name of any main topographical features

(e) the approximate position of any feature of historical, archaeological, geological or natural importance that is contained within or near the boundaries;

(f) in the case of agricultural subdivisions, concise notes as to the quality of the soil and the respective areas of arable and hill grazing land within the portion to be subdivided;

(g) the intended or existing position of drainage easements for surface drains, the direction of flow and point of final discharge;

(h) the position of all existing or proposed easements correctly labelled;

(i) the intended purpose of each lot;

(j) the width, name and status of any road shown on the plan;

(k) sufficient topographical information to enable the present surface of the ground, above some known or assumed datum, to be determined;

(l) a locality diagram sufficient to enable the position of the land to be readily located on existing maps, plans or charts.

[17]. Mr. Patel submits that the consent order cannot be carried out into effect unless these provisions are complied with. He draws attention to the various requisitions and conditions regarding drainage, a slip road, rear access, slip road, drainage, and whether the Ba Rural Local Authority and/or the Director of Town & Country Planning had actually gone down to visit the site.

[18]. Mr. Whippy contends that all due process was carried out as evident in the fact that all these agencies have endorsed and approved the survey plan.

[19]. In my view, considering that all approvals are in place, this court must presume the various offices/officers to perform in accordance with the law the inspections and related approvals. It is on anyone who asserts otherwise to prove his or her case. A second opinion of a registered surveyor would have been ideal to rebut that presumption of regularity. But there is none before me.

[20]. But the issues may be revisited by application of either of the parties, after endorsement of the Survey Plan by the Registrar of Titles (if assuming he does) - and before the drawing of the lots.

DIRECTIONS

[21]. I direct the Deputy Registar to sign the Survey Plans in lieu of the nine joint owners. But she is only to sign the Survey Plan upon receipt of affidavit evidence from the plaintiffs and the second to eighth defendants (those who live in proximity to each other may swear an affidavit jointly as per Order 41 Rules 2 of the High Court Rules or they may all swear on one affidavit pursuant to the same Order 41 Rule 2) - which affidavit must exhibit a copy of the final Survey Plan - and which must depose to the following:

• (a) that the deponent(s) have viewed, understood and considered the Survey Plan.
  
• (b) that the Survey Plan, in its current form, is to their satisfaction and approval.
  
• (c) that they understand that the Court will act on the strength of their affidavit to direct the Deputy Registrar of the Lautoka High Court to execute the Survey Plan on their behalf.
  

[22]. As stated, considering the first defendant's position, he obviously cannot be forced or required to file such an affidavit. But the Deputy Registrar's signature is to be understood and deemed to have been made on the 1st Defendant's behalf as well.

[23]. The Deputy Registrar is to liase with Mr. Whippy of Pro Survis regarding the mechanics of all this.

....................................
Master Tuilevuka

At Lautoka
10 November 2012.

^[1] see Master Udit’s Ruling dated 12 November 2008.