Pratap v Storck [2011] FJCA 38; ABU0007.2009 (18 August 2011)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL NO. ABU 0007 OF 2009
(High Court Action No. HBC 142 of 1993 at Lautoka)

BETWEEN:

JAI PRATAP
Appellant

AND:

MAXWELL DAVID STORCK and DOROTHY GWENDA STORCK
Respondents

Coram: Inoke, JA
Calanchini, JA
Wati, JA

Date of Hearing: 4 November 2010

Counsel: Dr M S D Sahu Khan for the Appellant
Ms V Patel for the Respondents

Date of Judgment: 18th August 2011

JUDGMENT

Calanchini JA

[1] This is an appeal against a decision of the High Court (Finnigan J) at Lautoka handed down on 8 December 2008. In an action commenced by the Respondents the Court ordered specific performance by the Appellant of an agreement made between the parties whereby the Appellant had agreed to sell and transfer the land described in Certificate of Title No. 27391 to the Respondents. The Court dismissed the Respondents claim for damages and the further relief claimed by them in the Writ. The Court specifically found that the Respondents were not in breach of the agreement by not depositing the sum of $48,000.00 in the trust account of Messrs Patel and Sharma by 15 January 1993. The Court declined to make any order in respect of costs.

[2] The background facts to the dispute were discussed in some detail by the learned trial judge. I shall refer to the facts set out by the learned judge that are relevant to this appeal.

[3] The Appellant owned all the land described in Certificate of Title No. 23791. It is more than two hectares in area and is adjacent to the Nadi river. In about August 1992 the Respondents went to the Appellant and asked if they could purchase some of the land. The Appellant agreed and together they went to the land. Agreement was reached as to the part of the land that would be purchased. The parties then went to see the Appellant's lawyer in Nadi. The lawyer's clerk drafted a sale note dated 10 August 1992. This document was signed by the Respondents and the Appellant as vendor. The agreement was copied at page 210 of the Court Record. At this stage I need only note that the Sale Note described the area to be purchased by the Respondents as being "subject to survey".

[4] The Respondents subsequently arranged for a surveyor to survey the agreed area. The surveyor came from Suva and started to carry out the survey. The Appellant claimed that the surveyor was attempting to survey a larger area than had been agreed. The appellant ejected the surveyor from the land.

[5] The Respondents met with the Appellant and explained that there had been a misunderstanding. The Respondents then offered to purchase all the land. The Appellant agreed and all the parties again went to the Appellant's lawyer. The clerk then drafted a second sale note which although it remained undated was signed by all the parties and witnessed by the clerk. This second sale note appeared at page 204 of the Court Record.

[6] The purchase price for all that piece of land comprised in Certificate of Title 23791 was agreed at $48,000.00. The deposit clause stated:

"The whole of the purchase price in the sum of $48,000.00 to be paid in the trust account of M/s Patel and Sharma upon execution of the transfer document."

[7] The following terms also appeared in the second sale note:

"Payment : Payment upon transfer of CT 23791 in the name of the purchasers.

Time : The purchasers to pay the monies into M/s Patel and Sharma's trust account by 15th January 1993 and time shall be the essence of this contract.

Possession : Vendor to give vacant possession of CT 23791 free of all encumbrances to the purchasers within six months from the execution of the agreement subject to the provisions of the preceding paragraph."

[8] This second sale note had been prepared by the lawyer's clerk from two handwritten documents signed by the Appellant and the First Respondent. The handwritten documents had been prepared by the Appellant's son. The learned judge noted that the first clause in the handwritten document dated 23 December 1992 with the heading "Sale and Purchase Agreement (at page 205 of the Record marked as D1) stated:

"Maxwell Storck has agreed to deposit $48,000.00 cash in the lawyer's office on the date of signing the agreement. It must be deposited as follows because the vendor will buy his new property with the same money."

[9] In the second handwritten document signed by the parties and also dated 23 December 1992 (at page 231 of the Record and marked D2) it was stated:

"I assure you (Jai Pratap) that I will abide by the new agreement and if you find at any point in time that I am (Maxwell David Storck) in breach of the agreement you (Jai Pratap) can cancel the whole land sales dealing with me (Maxwell David Storck)."

[10] The learned judge noted that the handwritten documents did not include any clause to the effect that time was of the essence. This term had been included in the sale note by the lawyer's clerk. This, of course does not alter the fact that the parties had signed the second sale note that specified that the time by which payment into the trust account was required to be made was of the essence of the contract. However, when the documents are read together there are inconsistent provisions in respect of when payment was required to be made.

[11] It would appear that the Respondents intended to finance the purchase by means of a loan from the Nadi Westpac Bank for the full amount of $48,000.00. The loan arrangement was not completed by 15 January 1993. In fact, it was not until 15 February 1993 that the Respondents paid the agreed purchase price to the lawyer to be held in trust.

[12] As the learned judge noted the same lawyer acted for both the vendor and the purchasers. He was the usual or normal lawyer for the Appellant as vendor and had acted for the Respondents as purchasers by assisting them to obtain finance from the Bank for the purchase. To that end the lawyer wrote a letter dated 1 February 1993 to the Westpac Bank in Nadi which stated:

"... under the written agreement Mr Storck agreed to deposit $48,000.00 in the trust account of Messrs Patel and Sharma, Solicitors, Nadi upon signing of the transfer documents by the vendor. The time for payment of the purchase price was the 15th day of January 1993.

The vendor, Jai Pratap is willing to extend the time for payment until the 15th day of February 1993. ...."

[13] The Westpac Bank agreed to provide the finance on certain terms which are not relevant to this appeal. The money was paid into the trust account of Messrs Patel & Sharma on 15 February 1993.

[14] By letter dated 22 February 1993 the lawyer wrote to the Appellant to inform him that:

"This is to advise that Mr and Mrs Storck have deposited $48,000.00 in our trust account on the 15th February 1993 being purchase price in respect of CT 23791. The above amount shall be paid to you upon stamping and registration of CT 23791 in favour of Mr & Mrs Stock."

[15] The learned judge found as a fact that the Appellant had received this letter on 22 February 1993 and had, as a result, attended at the lawyer's office on the same day. He also found that the Appellant had signed the transfer document on 22 February 1993 at his lawyer's office. There was another transaction in what appeared to be a financing arrangement between the Appellant and the Bank of Baroda. On 22 February 1993 the Appellant also signed other documents relating to arrangements he had made with that Bank.

[16] The Appellant wrote a letter dated 24 March 1993 apparently addressed to his lawyer. In that letter the Appellant stated that he had decided not to sell the land because of pressure from his wife and children.

[17] On 29 March 1993 a second letter was sent by the Appellant to his lawyer. This letter requested the lawyer to stop the dealing because the Respondents were in breach of the agreement and had delayed the sale. The Appellant stated that due to the delay he had lost the right to buy another block of land.

[18] The learned judge found that there was no evidence before the Court to show that the Appellant was actually going to buy land. He also concluded that there was no evidence to establish that the Appellant could not purchase the land because the money had been deposited on 15 February rather than 15 January 1993.

[19] On the evidence before him the learned judge found that the Appellant's decision to sell the land had caused considerable stress within the family.

[20] The learned judge concluded that even if the sale note stipulated that time was of essence and required payment to be made by 15 January 1993, the Appellant had agreed to an extension of time. He acknowledged that this finding was made as a result of the assertion in the letter dated 1 February 1993 from the lawyer to the Westpac Bank that the Appellant "is willing to extend the time for payment until 15th day of February 1993. He also relied on his finding that the Appellant had not been concerned about time being of the essence when the transfer document was signed on 22 February 2003. There was no evidence that the Appellant's wife, the Appellant's son or the Appellant himself had shown any insistence for payment on 15 January 1993 until some five weeks after the Appellant had signed the transfer. Finally His Lordship concluded that the only reason for the purported cancellation of the agreement to sell was that the Appellant's wife and his children opposed the transaction after the event.

[21] As a result the learned judge determined that the Respondents had concluded a valid agreement upon which both parties had acted until well after the signing of the transfer by the Appellant.

[22] The Appellant seeks an order that the judgment and orders made by the learned trial judge be set aside. In the Notice of Appeal the Appellant has set out 15 grounds of appeal. It is not practicable to reproduce those grounds of appeal verbatim as they run to some six pages. I propose to consider them in terms of the subject matter to which they relate.

[23] Counsel for both parties have dealt with grounds 1, 2, 3 and 9 together. These grounds relate to the pleadings with particular reference to the issues raised by the Respondents in their evidence. The Appellant takes issue with the Respondent's failure to file a Reply to the Defence. The Appellant submitted that by failing to plead waiver or estoppel the Court should have accepted that there was a clause in the agreement that time was of the essence and that the Respondents had breached the clause.

[24] After carefully considering the pleadings and the statement of agreed facts in the Pre-trial Conference Minutes filed in 1 February 2008 it is clearly not disputed that the Appellant had signed the transfer document on 22 February 1993. That fact is pleaded in the Statement of Claim and is admitted in the Defence. It was never disputed that when the Appellant executed the transfer document the sum of $48,000.00 had been deposited into the Solicitor's trust account.

[25] The Statement of Defence raised the issue that the Appellant had signed the transfer on the basis that he believed that the purchase money had been paid by the purchasers into the trust account on or by 15 January 1993. He claimed to have been informed about the actual payment date some weeks after he had signed the transfer document. The Defence raised the issue that the Appellant had executed the Transfer because of this mistaken belief and that as a result he was entitled to avoid the contract since the Purchasers had breached the clause that time was of the essence.

[26] In my judgment, as the pleadings stood, it was for the Appellant to establish that he had signed the Transfer document under a mistaken belief as to when the Respondents had paid the money to the Solicitor for depositing in the trust account.

[27] Although the Respondents did not file a reply, it is clear that by not doing so, that was a disputed fact. There was, as a result, an implied joinder of that issue.

[28] Both parties were entitled to lead evidence concerning the Appellant's knowledge of events as they unfolded in the period between December 1992 and February 1993.

[29] In my judgment, taking into account the basis upon which the Respondents had pleaded their case in the Statement of Claim and on the basis, as stated in the Defence, upon which the Appellant sought to avoid liability, it was not necessary for the Respondents to file a Reply raising issues such as waiver and or estoppel.

[30] The Appellant had signed the transfer. The conveyance as between the parties had been completed. It was a matter for the Appellant to plead a fact or facts in the Defence that would provide a basis in law for him not to proceed with the sale. In his Defence the Appellant pleaded that he was under a mistaken belief as to a fact. That fact was the date of payment by the Respondents of $48,000.00 into the Solicitor's trust account. The Appellant's evidence was that some five weeks after he signed the transfer document he became aware that the money had been paid on 15 February rather than on 15 January 1993. Having heard the evidence the learned judge did not accept the Appellant's contention.

[31] Once the learned trial judge had rejected the Appellant's contention that he had signed the transfer document in the mistaken belief that the Purchasers had paid the money on or by 15 January 2003 the Appellant's Defence to the claim for specific performance had failed. Specific performance in this case meant the delivery by the Appellant of a duplicate certificate of title.

[32] The learned judge found that the only reason why this did not happen was on account of family pressure not to sell the land. However the sale had already been completed. It was too late. For these reasons I would reject grounds 1, 2, 3 and 9 of the grounds of appeal.

[33] In my opinion grounds 4, 5, 6, 7, 8 and 10 seek to challenge findings of fact made by the trial judge or conclusions reached or inferences made as a result of those findings. On the material that was before this Court I see no reason why I should deviate from the usual practice of not disturbing findings of fact made by the trial judge. It was he who had the benefit of both observing and listening to the witnesses as they gave their evidence and explanations. He was in the best position to assess credibility and weight.

[34] There were three findings of fact made by the learned trial judge that were of particular significance. The first was that the Appellant had agreed to extend to 15 February 1993 the time for payment of $48,000.00 into the lawyer's trust account. The second was that when the Appellant signed the transfer document on 22 February 1993 he was aware that the money had been paid into the trust account on 15 February 1993. Thirdly, the learned judge found that the reason why the Applicant sought to "cancel the agreement" was because of family pressure.
[35] These findings of fact were in my judgment open to him on the evidence and did not constitute errors that would warrant interference by this Court.

[36] Ground 11 raises question of law and it is appropriate to state it in full:

"The Learned Trial Judge erred in law and in fact:

(i) In not properly and/or adequately applying the principles as to specific performance and particularly when time is made the essence of the contract

(ii) In not properly and/or adequately dealing with the principles emerging from decided cases and when in particular substantive written submissions were made in that regard."

[37] In the context of the present case the purpose of the order for specific performance was to compel the completion of the agreement under which some definite thing was required to be done in order that the transaction should be completed and the parties' rights settled in the manner intended so that the contract might be carried into full and final execution and the parties put in the position contemplated by their agreement (see J C Williamson Ltd –v- Lukey and Mulholland [1931] HCA 15; (1931) 45 CLR 282 at 297).

[38] In the present case the remaining definite thing to be done was for the vendor to produce a duplicate certificate of title. The Registrar of Titles required the duplicate Certificate for registration. The transaction is not complete until registration of the transfer at the Titles Office has been endorsed on the original and duplicate certificates of title. Only upon registration does the estate and interest pass to the purchaser or transferee.

[39] The requirement for the vendor to deliver the duplicate certificate of title is set out in section 45 of the Land Transfer Act Cap 131. There was no material before the learned judge to suggest that the Appellant was not in a position to produce the duplicate certificate of title. In the event that the duplicate instrument was no longer available section 28 sets out the procedure for the Appellant to obtain a special duplicate instrument of title.

[40] Generally it has been the accepted position that a purchaser of a particular piece of land (whatever its nature) cannot, on the vendor's breach, obtain a satisfactory substitute with the result that specific performance as a remedy is available.

[41] In so far as this ground also raises the issue of time being of the essence, I propose at this stage to refer to the learned judge's findings. In paragraph 28 the learned judge stated:

"I accept that the (Appellant) did agree to an extension of time."

And in paragraph 29:

"I am thus forced to the conclusion that the concept of time being of the essence was not part of the (Appellant's) thinking up until after the time he signed the transfer and then got into trouble at home."

[42] The learned judge then indicated in paragraph 37 that even if it is accepted that the two handwritten documents represent the contract, there is no reference in either of them to time being of the essence.

[43] His Lordship has made certain findings of fact in relation to (1) the second sale note which contained an express term that time was of the essence of the contract and (2) the two handwritten documents which contained no express reference to time being of the essence of the contract. He has concluded that time was not of the essence of the contract. It appears to me that it does not make a great deal of difference whether the reference to 15 January 1993 was merely a stipulation as to when payment was required to be made or was of the essence of the contract. Once His Lordship had found as a fact that the Appellant had agreed to an extension of time for payment to be made on 15 February 1993, there was no longer an issue as to effect of the clause.

[44] I shall consider in more detail the legal consequences of His Lordship's findings when I come to consider ground 13 of the appeal.

[45] Ground 12 of the appeal challenges the statement in the judgment that:

"I can accept as Mr Sahu Khan submits that the contract is the two exhibits D1 and D2. This makes the result the same. The Defendant has not made out his claim that payment must be made by 15 January 1993, time being of the essence. That was not in the agreement at all. Accepting that these documents constitute their agreement – and agreeing with Mr Sahu Khan that they do – it was not an agreement to make time of the essence. Neither did the parties act as if it was."

[46] The Appellant's submission on this point was that the contract was constituted by three documents and not two. It also appears to be claiming that the learned judge erred when he said that "I accept as Mr Sahu Khan submits that the contract is the two exhibits D1 and D2". The Appellant appeared to contend that at all times it has been the position of the Appellant that all three documents constituted the agreement. It may well be that the learned judge has not accurately stated the submission that was made by Counsel for the Appellant at the trial.

[47] However in my judgment the learned trial judge has considered all the documents that constituted the contract. He considered the contract on the basis of the clause in the second sale note and on the basis of a consideration of all the documents.

[48] In the first case His Lordship concluded that the Appellant had voluntarily extended the time for payment.

[49] In the second case, in view of the clauses in the three documents, the trial judge considered that the contract should be construed in such a way as to give it reasonable effect according to the justice and circumstances of the case. The learned judge was entitled to consider all the terms of the contract and conclude that the content or effect of one clause may be inconsistent with or may be cut down by other clauses.

[50] In my judgment the learned judge correctly considered the documents constituting the contract and the effect of the various clauses in those documents concerning time for payment. I would dismiss this ground.

[51] Ground 13 of the grounds of appeal challenges the finding made by the learned trial judge that the Respondents were not in breach of the agreement by not depositing the amount of $48,000.00 into the lawyer's trust account by 15 January 1993. However in my judgment this ground can be considered on the basis that his Lordship made a finding that the Appellant agreed to an extension of time. Certainly but for this finding there is no doubt that the payment was made after 15 January 1993 and was as a result in breach of the time stipulated. Therefore I propose to consider the consequences for the parties in the event that the learned judge had taken a different view of the evidence relating to the Appellant's agreement to time for payment being extended.

[52] The starting point is the express term in the second sale note that time was of the essence of the contract. From that point it is necessary to consider the effect of section 12 (2) of the Property Law Act Cap 130 which states:

"Stipulations in a contract, as to time or otherwise, that according to rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect in law in accordance with the rules of equity."

[53] This provision is in identical terms to section 41 of the Property Law Act 1925 (UK). In United Scientific Holdings Ltd –v- Burnly Borough Counsel [1978] AC 904 Lord Diplock at page 927 said:

"It (the section) makes it clear that there should continue to be ... only one set of rules for judges to apply in determining whether a particular stipulation as to time or otherwise was of the essence of the contract. It places no ban upon further development of the rules by judicial decision."

[54] The effect of the section may be stated briefly as being first that it does not negate the existence of a breach of contract (in respect of time) where one has occurred and which may give rise to a claim for damages for any loss caused by the breach. Secondly, except where time is of the essence, the section bars any assertion that the breach (in respect of time) has amounted to a repudiation of the contract which entitles the innocent party to treat the contract as terminated. (See Chitty on Contracts Volume 1 29th Edition at paragraph 21 – 012). In other words, a breach in respect of a stipulation as to time for performance will always give rise to a claim for damages in respect of any loss. Only when time is of the essence will a breach give rise to a right to rescind the contract or treat it as at an end.

[55] Time is of the essence where the parties have expressly stipulated in their contract that time is to be of the essence. The same result will follow if the contract contains a clause to the effect that any breach of such a clause will entitle the innocent party to terminate (or cancel) the agreement. In Lombard North Central plc –v- Butterworth [1986] EWCA Civ 5; [1987] 1 All ER 267 Mustill LJ at page 271 said:

"A stipulation that time is of the essence in relation to a particular contractual term, denotes that timely performance is a condition of the contract. The consequence is that delay in performance is treated as going to the root of the contract, without regard to the magnitude of the breach. It follows that where a promisor fails to give timely performance of an obligation in respect of which time is expressly stated to be of the essence, the injured party may elect to terminate and recover damages in respect of the promisor's outstanding obligations, without regard to the magnitude of the breach."

[56] Mustill LJ acknowledged that the injured party is relieved of any obligation that remains unperformed on his part (supra at page 272). In addition the injured party may claim for damages on the basis that upon termination of the contract the obligations of both parties remaining unperformed are brought to an end.

[57] In the present appeal, the Appellant's assertion may be summarised by stating that (1) time was of the essence of the contract, (2) the obligation was not performed within the time stipulated (3) the Respondents had thereby breached a condition (4) the breach entitled the Appellant to treat the contract as terminated and (5) as a result the Appellant was not required to deliver the duplicate certificate of title.

[58] But that, of course, is not the end of the matter. The right to terminate the contract as a result of the repudiation (i.e. the breach of the condition) may be lost where an innocent party has affirmed the contract, This occurs where the innocent party, although entitled to choose whether to treat the contract as continuing or to accept the repudiation and treat himself as discharged, decides to treat the contract as continuing. However, he will not be held to have elected to affirm the contract unless (1) he has knowledge of the facts giving rise to the breach, (2) he has knowledge of his legal right to choose between the alternatives open to him and (3) if implied affirmation there must be some unequivocal act from which it may be inferred that he intends to go on with the contract or from which it may be inferred that he will not exercise his right to treat the contract as repudiated. It must be shown that the unequivocal act was done with knowledge of the breach and of his right to choose. (See Peyman v Lanjani [1984] 3 All ER 703).

[59] As I have already observed, the learned trial judge found as a fact that the Appellant was aware that the money had been paid to the lawyer on 15 February and not 15 January 1993 when he signed the transfer document. He therefore had knowledge of the facts that constituted the breach. I am satisfied that by signing the transfer document the Appellant had demonstrated an intention to go on with the contract. It was an unequivocal act. The only issue that requires consideration is whether at the time the Appellant signed the transfer document he had knowledge of his right to choose between terminating the contract or remaining bound to perform his obligations. In other words, was the appellant aware at the time that he signed the Transfer document that he had a right to elect to affirm the contract by signing the transfer document or to treat the contract as being at an end as a result of the breach of the clause making time for payment of the essence.

[60] In my judgment the answer is yes and the conclusion is reached as a result of two separate and distinct considerations. First, in the document dated 23 December 1992 with the heading "Important Conditions of Re-Sale of land" the following appears:

"I assure you (Jai Pratap) that I will abide by the new agreement and if you find at any point in time that I am (Maxwell David Storck) in breach of the Agreement you (Jai Pratap) can cancel the whole land sales dealing with me (Maxwell David Storck)."

[61] The document was signed by the parties. It was the contention of the Appellant that this was one of three documents that constituted the contract of sale between the parties. As a result there is a right of election conferred on the Appellant by the terms of the agreement between the parties. In my judgment the Appellant is to be deemed aware of his right to elect to cancel the agreement upon a breach by the Respondents. The terms of the agreement gave the Appellant the right to elect. At the time he signed the transfer document (the unequivocal act) he had knowledge of the breach in that he was aware of the fact that payment had been made in 15 February and not 15 January 1993 (as a finding of fact made by the learned trial judge) and he was aware of his right to choose (as a result of the term in the contract).

[62] Secondly, it was not disputed that the Appellant had signed the transfer document on 22 February 1993 at the office of his lawyer. I have no hesitation in concluding that it is a reasonable and natural inference from the evidence that when the Appellant went to his lawyer's office he became aware of his right to choose between affirming the agreement by signing the transfer document or to treat the agreement as being at an end.

[63] These conclusions are consistent with the observations of the Full Court of the Victorian Supreme Court in Coastal Estates Pty Ltd –v- Melevende [1965] VicRp 60; [1965] V.R. 433 and the Court of Appeal in Peyman –v- Lanjani and Others (supra).

[64] There is a further consideration in relation to the Appellant's decision to affirm the contract by signing the transfer document. In the absence of any knowledge of a right to elect, if a party, after becoming aware of a fact that would entitle him to avoid a contract, exercises in an unequivocal manner rights under the contract adversely to the other party he will in general be deemed to have elected to affirm it although not aware of his right to elect (see Coastal Estates Pty Ltd –v- Melevende – supra per Adam J at page 453). However, apart from the right to receive $48,000.00 from his lawyer's trust account (paid in by the Respondents) there was no evidence of any detriment to the Respondents as a result of the Appellant signing the transfer document.

[65] In my judgment the letter dated 29 March 1993 from the Appellant to his lawyer was an attempt by the Appellant to treat himself as discharged from performing any further obligation under the contract. However having elected to affirm the contract on 22 February 1993 the choice is irrevocable. The Appellant could not subsequently change his mind and rely on the breach. (see Peyman –v- Lanjani supra).

[66] Therefore, putting to one side the finding concerning an extension of time, I have concluded that even if it was accepted that time was of the essence of the contract and hence a condition and even if payment was not made in accordance with that condition, the outcome in this appeal would be the same. Furthermore, it would also be the same even if time was not of the essence. The effect of section 12 (2) of the Property Law Act is that a breach of a stipulation as to time is not of itself a repudiatory breach which would entitle the Appellant to terminate further performance of the contract. The failure by the Respondents to pay the $48,000.00 by 15 January 1993 would not be a repudiatory breach of the contract and the Appellant would not be entitled to terminate the agreement especially in circumstances when the Respondents had paid the money within a reasonable time (on 15 February 1993) and well before the appellant had attempted to treat himself as being discharged from any further performance. Such a breach may give rise to a claim in damages for any loss as a result of the breach. There was no counterclaim for damages to the Appellant's Defence.

[67] It is not necessary to consider grounds 14 and 15 as they have been adequately considered in the course of the judgment.

[68] For all of the above reasons I would dismiss the appeal. I would order that the Appellant pay the Respondents' costs which are fixed at $5,000.00.

Inoke JA
[69] I agree with the judgment and reasons of Calanchini JA

Wati J:
[70] I agree with the judgment and the orders proposed by Calanchini JA

Inoke JA
[71] Orders of the Court:

(1) The Appeal is dismissed

(2) The Appellant is to pay to the Respondents the costs of the appeal assessed in the sum of $5000.00.

Hon. Justice S Inoke
Justice of Appeal

Hon. Justice W Calanchini
Justice of Appeal

Hon. Justice A Wati
Justice of Appeal

Solicitors:

Messrs. Sahu Khan and Sahu Khan for the Appellant
S B Patel & Co. for the Respondents