Singh v Singh [2015] FJCA 141; ABU26.2012 (2 October 2015)

IN THE COURT OF APPEAL
APPELATE JURISDICTION

CIVIL APPEAL NO. ABU 26 of 2012
(High Court HBC 250 of 2007)

BETWEEN:

RAJENDAR SINGH
BALVINDAR KAUR
Appellants

AND:

PARDEEP SINGH
Respondent

Coram : Calanchini P
Almeida Guneratne JA
Prematilaka JA

Counsel : Mr. S. K. Ram for the Appellants
Mr. V. M. Mishra and Ms. P. Singh for the Respondent

Date of Hearing : 10 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Calanchini P
[1] I have had the opportunity to read in draft form the judgment of Guneratne JA and agree with his reasoning and conclusions.
Almeida Guneratne JA

Nature of the Appeal

[2] This is an appeal against the judgment of the High Court of Lautoka dated 19 March, 2012 by which a deed of renunciation executed by a beneficiary under a last will as to his shares and interests was held to be invalid and unenforceable in law as against the said beneficiary.

[3] The High Court allowed the action instituted by the said beneficiary applying and upholding the pleas of Non Est factum and fraud urged by the said beneficiary. An allegation of breach of fiduciary duties was also upheld.

Established Essential Facts

[4] The plaintiff-respondent Pradeep Singh, (hereinafter referred to as the plaintiff), was a named beneficiary under the last will and testament dated 31 March, 1981 of his father. On 9 September, 1985 the father, Battan Singh became deceased and the funeral was held on 12 September. On 16 September, 1985 the plaintiff was found to have signed a deed renouncing his shares and rights which he was entitled to under the said last will in favour of his mother, Channan Kaur. On the same day two other beneficiaries, the plaintiff's elder brothers Rajendra Singh (the 1st Defendant-Appellant, hereinafter referred to as the 1st Defendant) and Balwant Singh (3rd Defendant, deceased sometime thereafter), also renounced their shares and rights they were entitled to under the said last will in favour of Channan Kaur. On 15 November, 1986 the remaining beneficiary Autar Singh also signed a deed renouncing his shares in the estate of Battan Singh in favour of the mother.

[5] On 20 October, 2006 the mother, Channan Kaur passed away.

[6] Thereafter on 8 May, 2007 the plaintiff attempted to lodge a caveat over the properties which he alleged belong to the estate of his late father and subsequently to him as a beneficiary followed by a notice dated 15 June, 2007 which he served on the 1st defendant claiming that he did not sign any deed of renunciation and that even if he had, he was not told that it was a deed of renunciation.

[7] On the 10 August, 2007 the plaintiff instituted action to have the said deed of renunciation set aside.

[8] By its judgment dated 19 March, 2012 the High Court allowed the plaintiff's action upholding an allegation of fraud against the original 1st and 3rd Defendants on the basis that the plaintiff had become aware of the said deed only after the mother's death. An allegation of a breach of fiduciary duties against the mother was also upheld. Apart from that, the learned trial Judge held that a plea of non est factum was also made out because the plaintiff had thought (or was told) that he was signing a document for the release of money for the funeral rites of the father and not a deed of renunciation as regards his shares which he was entitled to under the father's last will. The Public Trustee was named as the original 2nd Defendant and has not been made a party to this appeal.

[9] The defendants defence based on the Limitation Act was rejected.

[10] This appeal is against that judgment.

Grounds of Appeal
[11] The grounds of appeal are set out at pages 3 to 6 of Record of the High Court (RHC) Volume 1.

[12] Bar the details, the gist of the grounds so urged is that the trial judge erred in law and in fact in upholding the said allegations of fraud and breach of a fiduciary duties and holding that the plaintiff had made out a plea of non est factum.

[13] I have carefully considered the written submissions tendered and oral submissions made by both learned counsel as well as the several authorities this Court was referred to.

[14] I now proceed to consider the merits of this appeal.

The Judgment of the High Court and the Reasons Adduced
[15] The learned trial Judge held with the plaintiff-respondent on the grounds of (a) fraud (b) Non Est factum and (c) Breach of a fiduciary duty.

[16] These grounds will be examined in the light of the established evidence, applicable legal principles and the reasons adduced by the learned trial Judge.

On the Ground of Fraud
[17] The learned Judge derived support from the following passage in Halsbury's Laws of England on 'Bargains with Heirs' viz:

"The Court will always relieve against the fraud which infects unconscionable bargains made with heirs, reversioners or expectants on the security of their expectant or reversionary interests in property, and fraud always is presumed in such cases from the circumstances of the parties ... namely weakness on the one side and on the other usury, extortion or advantage taken of that weakness. Fraud does not in these cases mean deceit; it means an unconscionable use of the powers arising out of the attendant circumstances and conditions and where the relative position of the parties is such as prima facie to raise this presumption the transaction cannot stand unless the person claiming the benefit of it can prove it to be in fact fair, just and reasonable." (p.345, Halsbury's Laws of England; 4th ed; Vol.18)

[18] Commenting on the said passage from Halsbury, the learned Judge held thus:

"However, in my view, facts of this case transcend the usual boundaries of unconscionable conduct where a party makes use of the weakness of another and of the attendant circumstances only to raise a presumption of fraud against that party. Instead, the act of deceit itself is made out in this case, in the wake of the plaintiff's evidence that he was misled to the belief that the document that he was signing on was a document to withdraw money from the bank." (at p.41, RHC)

[19] His Lordship derived assistance from the decisions in Narayan and Another v. Sigamani and Others [2008] FJHC 204 and Assets Co. Ltd. v. Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176 at 210, where the notions of 'actual fraud' as opposed to 'constructive fraud' or 'equitable fraud', dishonesty of some sort and 'cheating' surfaced.

[20] The Court concluded thus:

"The purported deed of renunciation was the outcome of a fraud perpetrated by the first defendant (first appellant) and the late Balwant Singh to make the plaintiff disentitled to his existing rights that he was otherwise entitled to under the late Battan Singh's last will dated 31 March, 1981."
(paragraph 85 of the Judgment, p.42 of the RHC, Vol.1)

Misdirections and/or Non-directions Contained in the High Court Judgment
[21] I propose to deal with the aforesaid conclusion reached by the learned Judge seriatim as follows.

Actual Fraud as Constituted by Dishonesty and Cheating and Deceit
[22] What is 'dishonesty' for the purposes of the law? It is 'lacking intentionally in an element of truth, probity or integrity". (see: Dictionary of Law, L.B. Curzon, 6th ed., 2002, p.137).
[23] What was the intentional lack for the truth on the part of the First Defendant (First Appellant), the said late Balwant Singh and the mother Channan Kaur as to the signing of the deed of renunciation in question by the plaintiff-respondent? Could an allegation of dishonesty be allowed to visit the mother's grave after her death?

[24] I think not, in as much as appropriation is not to be regarded as dishonesty for by the said deed of renunciation the properties bequeathed to the plaintiff-respondent under the last will of Battan Singh had been placed in the hands of the mother (Channan Kaur). So had the First Appellant and the other beneficiaries. (See the cases of Anderton v. Burnside [1984] UKHL 1; [1984] AC 320 and R v. Navvabi [1986] 3 All ER 102 and R v. Gomez [1992] UKHL 4; [1993] 1 All ER 1 where the distinction between 'dishonesty' and 'appropriation' is illustrated).

[25] The notion of 'cheating' is closely associated with 'dishonesty' and 'deceit'. It is "a deceitful practice for defrauding another of his known right by means of some artful device, contrary to the plain rules of common honesty" and/or "is to act with deliberate dishonesty as to the prejudice of another person's proprietory right." (R v. Sinclair [1968] 3 All ER 241).

[26] What was the 'artful device' on the part of the First Appellant, the late Balwant Singh and Channan Kaur (the mother) practised on the plaintiff-respondent in getting him to sign the deed of renunciation of his proprietory rights under the last will of Battan Singh?

[27] I could not find anything in the evidence on record. In fact, the Appellant's version was that, the said deed was executed before a solicitor. As against that, all what the plaintiff-respondent said in evidence was that, he could not recall such an event and that he signed only a document in regard to moneys needed to defray the funeral rites of his father. That was his belief but such a document was not forthcoming.
[28] Thus, the said deed of renunciation, its existence and the circumstances in which it came to be signed were left in the air by the plaintiff like a shuttle in the loom.

[29] Respectfully, the learned trial judge had misdirected and/or non-directed himself both on the law and the factual content in that regard.

[30] In the result I am unable to subscribe to the learned High Court Judge's view that he was "convinced beyond doubt that the conduct of the First Defendant and the late Balwant Singh was fraudulent" (at paragraph 85 of the Judgment, RHC, Vol. 1, p.34).

[31] I go further and hold that, not only "actual fraud", but also "presumed fraud" was not made out in the instant case while noting that, the plaintiff did not utter one word in regard to any fraud perpetrated on him. (See the plaintiff's evidence at pp.542 to 547, vol.3, RHC).

[32] I add that, the particulars of fraud and/or collusion averred in the plaintiff's Amended Statement of Claim (vide: pp.186-187, vol. 2, RHC) also do not in fact and in law constitute fraud.

Function of an Appellate Court in Reviewing a Trial Judge's Findings
[33] I have been mindful of the principle that, an appellate court should be slow in interfering with the findings of fact arrived at by a trial Court unless there are compelling reasons.

[34] In the instant case however, the findings of fact by the learned Judge are that, the First Defendant's demeanor was objectionable, his evidence was evasive etc; and that his version lacked both, credit and weight (vide: Paragraph 48 of the Judgment, RHC, Vol.1, p.19).

[35] Several authorities were referred to in that connection by counsel for the opposing parties both in their written and oral submissions (including the quoted case of Benmax v. Austin Motor Co. Ltd [1955] 1 All ER 326 and the case of Punjas & Sons Ltd v. Malani [1999] FJCA 66 in respect of which I have no quarrel. I shall return to this aspect later in my judgment.

[36] The same goes for the principles enunciated by the learned Judge in the context of the concept of "preponderance of probabilities as supported by the myriad of factors". (vide: paragraphs 44 to 51 of the Judgment, Vol.1, RHC, pp. 18 to 21).

The Doctrine of Approbation and Reprobation
[37] Apart from all those aspects, I regret in saying that, the learned Judge's reliance on the doctrine of "Approbation and Reprobation" was misconceived and irrelevant in the factual content of the facts and circumstances of this case. (See: Paragraphs 51 to 52 of the Judgment, at pp. 20 – 21 of the RHC, Vol.1).

[38] I shall not say anything more on that save as to say that, to "approbate and reprobate" refers to a person who, taking a benefit under an instrument, must either accept or reject the instrument as a whole expressed in the maxim "Qui approbate non reprobate" (See: the case of Express Newspapers v. News (UK) Ltd. [1990] 3 All ER 376).

[39] In the instant case, such a situation never arose.
[40] The findings of fact referred to above cannot have any and have no relevance to the fact that, there is established in evidence that, there was a deed of renunciation by the plaintiff-respondent as to his rights under the father's last will.

[41] I have already held that there was no actual or presumed fraud, dishonesty, cheating or deceit in procuring the said deed of renunciation in regard to which I have held that, the learned Judge's Judgment contains misdirections and/or non-directions in law as well as fact for which reason this Court, as an appellate Court is entitled to review the said Judgment.

Re: The Statutory Time Bar Pleaded by the Appellants to the Plaintiff-Respondent's Claim

[42] It is an inveterate and established principle in law that, "fraud vitiates everything" for which principle no authority need be cited.

[43] In the instant case, the plaintiff-respondent alleged fraud which allegation the High Court Judge upheld but which I have already reversed both in fact and in law.

[44] The challenge to the said deed of renunciation (executed on 16 September, 1985) was made only in the year 2006 on the basis that, the alleged fraud was discovered only (after the demise of Channan Kaur, the mother) and therefore the time bar did not run.

The Concept of Concealed Fraud
[45] Although the plaintiff-respondent's case had not been based on a "concealed fraud", I am prepared to consider the same as well where the time bar could have been circumvented.

[46] However, the established legal position is that, a "concealed fraud" could operate to circumvent a time bar only where there has been a deliberate destruction of a person's title deed until it is discovered or could with reasonable diligence have discovered the fraud. (See: the English decision of Liverpool R C Archdiocese Trustees v. Goldberg) (2000) The Times, 18 July.

[47] Such is not the situation that arose for consideration in the instant case.

[48] The mere ipse dixit of the plaintiff-respondent that he discovered the deed of renunciation only after the death of his mother in 2006, (and that too, after he had first denied his signature on it only to admit the same later in cross-examination) ought not to have been accepted by the trial Judge in my view, having regard also to the provisions of the Land Transfer Act Cap 131 and principles regarding the entering of Caveats in relation to land entitlements.

[49] Taking at its highest, even if the First Appellant's evidence that, the deed in question was executed at the Solicitor's office is not believed, the fact remains that such a deed was in fact executed and signed by the plaintiff-respondent.

[50] Thus, what turns on the fact that, the First Appellant's demeanor was questionable and his evidence was not to be believed?

[51] As pointed out earlier by me, there is no evidence that whether the mother, the brothers and/or the Solicitor had ganged up and brought force on the plaintiff-respondent to sign the deed in question.

[52] In fact the plaintiff-respondent's position had been that the document he was signing was something else and not a deed of renunciation.

[53] True enough, the mother, brothers and the Solicitor were all in a position of moral ascendency over the plaintiff, who was 22 years old at the time.

[54] But, that fact cannot constitute fraud and/or collusion.

[55] The learned trial Judge, respectfully, failed to address his mind to those very relevant and material aspects in the case.

[56] Accordingly I hold that, the learned trial Judge misdirected and/or non-directed himself both on the facts and the law relating to what constitutes 'fraud'.

Re: The Trial Judge's Findings on the Ground of Breach of Fiduciary Duties
[57] As a prelude to the consideration of this ground it may be borne in mind that I have already held that the plaintiff-respondent was not entitled to have the impugned deed of renunciation set aside on the basis of fraud.

[58] That would mean in consequence that, the said deed of renunciation was valid and stands.

[59] Accordingly, all the properties in question that formed the subject matter of the last will of the late Battan Singh came into the hands of Channan Kaur who became well and truly seised and possessed of the same as owner with the attendant rights to use, enjoy and destroy utendi, fruendi and abutendi.

[60] Indeed there was no impediment in law that prevented her from disposing of the properties as she wished.

[61] The said deed of renunciation was in September, 1985. The transfer of property by Channan Kaur to the First Defendant was thereafter.

[62] Accordingly, no question of a breach of fiduciary duty owed to the plaintiff on the part of Channan Kaur could have arisen.

[63] In that view of the matter the reasons adduced and the authorities referred to by the learned High Court Judge in his Judgment at paragraphs 90 and 93 (pages 43 to 44 of RHC, Vol. 1) are rendered irrelevant.

[64] Consequently, the learned trial Judge's finding that, "the plaintiff, accordingly, succeeds in his action on the ground of breach of fiduciary duty by the late Ms. Channan Kaur." (at paragraph 94 of the Judgment) cannot be allowed to stand.

Re: The Plea of Non Est Factum and the First Defendant's Defence of Time Bar
[65] The learned High Court Judge held that, the plaintiff was entitled to succeed in his action on the ground of Non Est Factum as well holding that "the element of fraud is also encompassed in the plea of Non Est Factum" as shown in the evidential analysis made by him. (Paragraph 88 of the Judgment at p.35 of RHC, Vol. 1).

[66] His Lordship, being convinced that the (alleged) fraud was discovered in 2006 (the plaintiff's original statement of claim being in August, 2007) it was held that in terms of the provisions of Section 15 of the Limitation Act, the plaintiff's action was not time-barred. (paragraph 88 of the Judgment, supra).

[67] However, in view of the conclusion I have reached, in that, fraud and a breach of fiduciary duty as alleged not being established, the provisions of Sections 9 and 10 of the Limitation Act would come into operation and the plaintiff's action stood time-barred.

[68] Nevertheless, since much industry and effort have gone into the doctrine of Non Est factum, I felt it not inappropriate to consider briefly as to whether, the plea of Non Est factum was in any event entitled to succeed in the facts and circumstances of the instant case.

Profile of the Plaintiff-Respondent and the Evidence on the Execution of the Deed of Renunciation in Question

[69] It is common ground that, the plaintiff was a 22 year old medical student at the time the impugned deed of renunciation was executed. That was on 16 September, 1985. He was studying in a foreign university in the English medium. He was the most educated out of those present. (vide: plaintiff's evidence at p. 546, vol.3, RHC). The deed of renunciation was in front of him (plaintiff's evidence at p.546, supra). Then the plaintiff is heard saying, "It was decided that every property should be with the mother. Renunciation deed to be signed and agreed at this meeting." (p.546, ibid). The Solicitor has certified on the said deed that the same was read over and explained to the parties. (vide: p.329, HCR, Vol.2). He has confirmed that in his affidavit dated 11 October, 2007 (vide: Paragraph 6 thereof at p.406 of RHC, Vol. 3).

[70] Notwithstanding that evidence, the plaintiff maintained that he never read the deed in question, that he was distressed at the father's death, that he was under the belief that he was signing a document to procure funds for the funeral rites of his father and that nothing was said to him at the execution of the deed of renunciation. (pp.546-547, HCR, Vol.3).

[71] Viewing that evidence as a whole could a plea of Non Est Factum have been upheld?

Principles Applicable to a Plea Based on Non Est Factum
[72] I now proceed to examine and consider the principles applicable to a plea based on Non Est Factum in the light of established precedents.

The Caveat Subscriptor Rule
[73] This rule prescribes that, a person signing a document is held to its terms on the basis that he does so at his peril.

The Counter Rule to the Caveat Subscriptor Rule – Error
[74] The counter to that rule is that a person may have subscribed to a document in a mistaken belief.

[75] It is in the inter-play between the aforesaid rules that the plea of non est factum finds its setting.

[76] Simply stated, if the mind of a party signing a document does not go with his signature, in that the document he intended to execute or imagined he was executing was a document other than that which he actually executed, he could seek to avoid the document on the basis of Non Est factum.

Brief Historical Overview of the Plea
[77] As noted by the learned trial Judge, the principal early English authority on the subject is the Thoroughgood's case [1584] 2 Coke's Reps, p.9a.

[78] In that case, an illiterate man had executed a deed which had not been read to him.

[79] In the instant case, the plaintiff-respondent could not, by any stretch of imagination, be said to have been illiterate. The solicitor has stated in the impugned deed that it was read over and explained to the parties concerned, the beneficiaries under the father's last will which he confirmed in his affidavit (referred to earlier in my Judgment) although he was not called to give evidence. Of the two versions the trial Judge opted to accept the plaintiff's version.

[80] But was that sufficient? It had been a joint commitment on the part of all the beneficiaries to place the properties which were the subject-matter under the said last will in the hands of the mother, who, as the evidence revealed was the person physically present on the properties in Fiji.

[81] Apart from all those considerations, the plaintiff-respondent initially having denied his signature on the said deed of renunciation, it required the evidence of a handwriting expert to compel the plaintiff to admit the signature as being his on the said deed. Could it have been said that the signature on the deed was rendered irrelevant on account of the deed being falsely read over to the plaintiff, a consideration that surfaced in Foster v. Mackinnon [1869] LR4 CP704?

[82] I find that no consideration has been given to that aspect by the learned trial Judge.

The Precedents as Reflected in Saunders v. Anglia Building Society
(HL) [1970] 3 All ER 961 and Petelin v. Cullen [1975] HCA 24; [1975] 132 CLR 355

[83] Relying on those decisions, learned Counsel for the plaintiff-respondent had contended that, the plea of Non Est Factum was not limited to the blind and illiterate but extended to a person, who, due to no fault of his, is unable to have any understanding of the purport of a particular document.
[84] In the same breath Counsel had submitted that, the burden of proof of the plea was on the plaintiff but that it shifted to the opposing party to prove that the document was signed without undue influence. (My emphasis).

[85] It is to be noted that the learned trial Judge found that "the evidence did not permit the doctrine of undue influence to be applied." (at paragraph 77 of the Judgment, p.39, RHC Vol.1).

[86] Consequently, the question boiled down to whether on the evidence the plaintiff could have succeeded in bringing his case within the parameters of the plea of Non Est Factum in the light of relevant judicial precedents.

[87] The learned trial Judge concluded that the plaintiff could.

[88] Does that conclusion bear scrutiny?

[89] I have earlier recapitulated the material evidence on that question when dealing with the issue on fraud and therefore does not require repetition.

[90] Does that evidence fit in with a plea of non est factum as expounded by the authorities?

[91] The House of Lords decision in Saunders et al v. Anglia Building (supra) which the learned trial Judge considered to be the authority on the plea of non est factum explicitly laid down that, a man of full age and understanding who can read and write cannot be allowed to repudiate his signature to a document, which he knows will have legal consequences if he signs it without reading it.

[92] In that case, as the trial Judge correctly observed the essence of the plea of non est factum was the radical, fundamental or material difference between the contents and the character of the document that the person signed and what he intended to sign.

[93] In that instant case, a question as regards the contents and the character of the impugned deed of renunciation which the plaintiff signed does not arise. The plaintiff's position has been that, he was entertaining the belief that he was signing a document that was designed to procure funds for the father's funeral rites.

[94] It is to be noted that, in the same breath his stand had been that he was in distress at the demise of his father which drives me to make the observation that that is a pointer to his signing the deed of renunciation without perhaps properly addressing his mind to it. After all, his distress could not have affected him in intending to sign a document for the release of funds in relation to his father's rites.

[95] All that go to show that he was fully aware that he was signing the impugned deed of renunciation for the purpose it was designed, that is, to put the family properties in question in the hands of the mother.

[96] No doubt, he was benevolent to have fallen in line with the other beneficiaries.

[97] After a lapse of over 20 years, after the Mother's death, like Rip Van Winkle having woken up from his slumber (according to him, having heard from others how, in effect, he had been deprived of any family properties), he had thought fit to have the deed of renunciation set aside, as the Bard reminds one, full of sound and fury signifying regret and lament as he thought fit to strut and fret upon the legal stage seeking to take refuge under the cover of the plea of non est factum. When signing the deed of renunciation, he had not been able to look his mother in the eye and refuse to sign it. After her death he was placed in a different mindset. This, in my view was a realistic approach to have adopted in the case.

[98] From the perspective of which I have approached the matter, the views expressed by Lord Reid and Lord Wilberforce in the Saunder's case (supra) extensively quoted by the trial Judge at paragraphs 74 to 75, in my view, go against the plaintiff's case. They do not assist him.

[99] It is my considered view that, the matters I have articulated above have not been addressed by the learned trial Judge which therefore constitute misdirections and/or non-directions.

The Distress Argument
[100] At this point I feel obliged to briefly touch on the distress argument put forward on behalf of the plaintiff-respondent in an attempt to come within the plea of non est factum.

[101] Mr. Ram (learned Counsel for the Appellants) submitted as he had done in the High Court that, apart from the plaintiff being literate, of full age and capacity, there was no evidence suggesting that the plaintiff's state of distress (as alleged) at the loss of his father was such that he did not understand what he was signing (that is, the signing of the deed of renunciation) Hewitt v. Habib Bank Ltd. [2004] FJCA 33, Rigamoto v. NBF et al [2011] FJCA 42 and the New Zealand case of Bradley West Solicitors et al v. Keeman [1994] 2 NZ LR 111 were referred to.

[102] The strand common to those cases is that the plea of non est factum would not be available to a signatory to a document who is of full age and capacity and who had not taken all reasonable care in the circumstances to read and understand an impugned document, a proposition foreshadowed indeed in the case of Saunders (supra) which the learned trial Judge himself relied on.

[103] That is another matter, the learned trial Judge, with all due respect, failed to direct his mind to.

[104] For the aforesaid reasons as articulated by me in the foregoing paragraphs of this Judgment I hold that, the plaintiff-respondent had failed to bring his case within the scope and content of the doctrine of non est factum.

Re: The Function and Role of this Court in Exercising Appellate Jurisdiction
[105] It is an established principle in law, (for which authority need not be cited) that an appellate Court will not lightly interfere with findings of fact arrived at by a trial Court. I have touched on this aspect earlier in my Judgment. However, I venture to somewhat elaborate on that at this point.

[106] At the other end of the spectrum, there is also the proposition in law that, where a trial Court is found to have misdirected and/or non directed itself on the assessment and/or evaluation of the evidence that an appellate Court would be in an equal position investing with it the power to take a contrary view which is the position in the instant case given the fact that, this Court is not exercising merely powers of review like for instance in an application for Judicial Review by way of a prerogative writ (where as a rule, the reviewing court is not supposed to substitute its views for that of the lower tribunal) but exercising powers in appeal encompassing both facts (disputed and undisputed) and the application of the law to the facts, exemplified in the concept of "a Re-hearing" as reflected in the Court of Appeal Act (cap 12) in the Fijian legislative wisdom (vide: Rule 15(1) read with Rule 22(3).

[107] Consequently, on the basis of the reasons adduced in the foregoing paragraphs I am of the view that, the trial Judge's findings (respectfully) bristle with non-directions and/or misdirections in regard to the application of the principles relating to the plea of non est factum for which reason I conclude that, the plaintiff-respondent failed to bring his case within the scope and limits of the plea of non est factum.

[108] The matter does not end there.

Re: The Power of Attorney dated 4 January, 1990 Executed by the Plaintiff
Plaintiff's Credibility as a Witness – Page 195 of RHC, Vol. 2

[109] This power of attorney started with the words:

"Whereas our father Battan Singh ... died on 9 September, 1985 ... and he had duly executed a Will in my favour and my brothers ..."

[110] However on oath the plaintiff was heard to say "I did not know my father had a Will". (Page 543 of RHC, Vol.3) and again in re-examination the plaintiff said "I never saw the Will". (page 547 ibid).

A Non-Direction by the Trial Judge
[111] Earlier in cross-examination the plaintiff is also heard saying "From 1985 – 1996 I did not know that there was a Will in my name." (p.547, RHC, Vol.3)

[112] In the same breath he says "After 5 years in 1990, I signed the Power of Attorney." (ibid).

[113] And it is in that Power of Attorney that he avers

"Whereas our father ... died on 9 September, 1985 ... and had duly executed a Will in my favour. ..." (etc) (supra).

[114] Clearly the plaintiff was uttering an untruth which in my view put serious doubt on the plaintiff's credibility on which the trial Judge has not even made a token reference. This in my view was a non-direction.

[115] Had the trial Judge considered properly that evidence, I cannot see how he could have found the plaintiff as being a credible witness.

[116] The learned Judge also held that, the "Evaluation of the evidence, in the absence of any inconsistency or contradiction, revealed that the plaintiff had signed only one document on 16 September 1985. (page 11 of the Judgment of the RHC).

[117] This again was another misdirection in regard to "the evaluation of the evidence".

[118] It is one thing to say that, he (the Plaintiff) thought he was signing some other document. But, it is another to say that he had signed some other document on 16 September, 1985, when such other document was not even forthcoming in evidence.

[119] The learned Judge also held thus:

"Moreover, learned Counsel for the first defendant, though cross-examined the plaintiff on the belated version of having a so called family meeting, did not however, challenge in cross-examination the plaintiff's assertion that what he signed was only a document to get money released from the bank. (p.20, RHC, Vol. 1)

[120] His Lordship proceeded to hold further that, the first defendant "left the plaintiff's position that he signed a document only for the release of money by the bank unchallenged when the plaintiff was cross-examined before this Court." (ibid).

Clear Misdirection by the Trial Judge
[121] Search as I did I could not find in the proceedings any lapse on the part of Counsel's cross-examination to warrant such a deduction to be made. (at pp.544 to 547, RHC, Vol.3).

[122] The first defendant's case was that, there was only one document signed by the plaintiff and that was the impugned deed of renunciation. That deed was the only document produced in evidence. There was no document for the release of any funds for any funeral rites of the father.

[123] In fact, the plaintiff was not only compelled to admit that the signature on the said deed was his but also that the deed was in front of him. ("Document 6 of the Agreed Bundle of Documents was in front of me". At p.546, ibid. The Document 6 clearly referred to the deed of renunciation – vide: p.141, RHC, Vol.1)

Demeanor and Credibility of a Witness as Opposed to Accepting one Version as Against Another

[124] A trial judge finding the demeanor of a witness to be offensive and therefore finding his evidence to be not credible is one thing.

[125] But, accepting the version of one as against another is a different matter.

[126] This Court ought not to be and cannot be stultified by the mere acceptance of one version by a trial Court as against another.

Concept of a Rehearing and Power to Draw Inferences
[127] As noted by me earlier in the Judgment, the Court of Appeal Rules embody the concept of a rehearing (vide: Rule 15(1). This is further exemplified by Rule 22(3) which confers power on the Court of Appeal to draw inferences.

[128] In my view, the plethora of cases relied upon by the plaintiff respondent do not appear to have had regard to the said Rules.

[129] A trial Court saying that it accepts one version as against the other cannot put an end to the matter.

[130] As demonstrated by me earlier, in so far as credibility is concerned, it is the plaintiff's evidence that I find to have lacked in credibility.

[131] In that regard I have endeavoured to show how the learned trial Judge's acceptance of the plaintiff's version bristles with non-directions and misdirections for which reason I have no hesitation in allowing this Appeal.

Justice According to Law
[132] Justice no doubt is a virtue that ought to be espoused and pursued. But, it must be done according to law.

[133] In the circumstances of the instant case the plaintiff no doubt would have entertained the feeling that an injustice had been done to him in being deprived of any of the family properties as evidenced in the case.

[134] This may have struck the learned High Court Judge in approaching the case as he did.

[135] I hope I am not indulging in a judicial excess in being driven to say that, His Lordship appears to have ruled from his heart rather in terms of the law while noting at the same time the effort and industry His Lordship has brought upon in regard to his learned exposition.

[136] However, it is not disputed that, he has had the benefit of receiving an education in a foreign university to the level of ultimately becoming a qualified Acupuncturist out of moneys spent from the family funds in question ending up with assets of his own as conceded by him in his affidavit dated 10 August, 2007 (paragraph 44 of the said affidavit, p.445 of Vol. 3, RHC).

[137] Thus, even on that score, it is not open for one to say that, an injustice had been caused to the plaintiff on being deprived of any share of the family properties.

[138] Consequently, the plaintiff's action based on 'fraud', 'non est factum', and 'breach of a fiduciary duty' had to be approached from the perspective of the law.

[139] I am of the view that on all those counts the plaintiff-respondent was not entitled to succeed for the reasons I have adduced earlier in this Judgment.

Contention based on Undue Influence
[140] One final aspect in this appeal remains to be addressed and that is, Mr. Mishra's endeavour (on behalf of the plaintiff-respondent) in pursuing an issue based on undue influence in regard to the procurement of the impugned deed or renunciation when the matter came up before this Court in appeal which Mr. Ram vehemently objected to.

[141] The learned trial Judge himself had not been inclined to entertain the said issue at the trial.

[142] Moreover, as His Lordship, the President of this Court observed, there has not been a cross-appeal by the plaintiff-respondent on the said issue.

[143] For those reasons this Court refused to entertain the said issue.

Conclusion

[144] For the foregoing reasons I conclude that,

(a) the allegation of fraud made by the plaintiff-respondent was not entitled to succeed.

(b) the contention based on a breach of fiduciary duty was also not entitled to succeed.

(c) the allegation of fraud not being entitled to succeed, the action filed by the plaintiff-respondent stood time-barred in terms of the provisions of the Limitation Act.

(d) In any event, even the plea of non est factum was not entitled to succeed.

Prematilaka JA

[145] I agree with the judgment of Guneratne JA.

Orders of the Court

(i) The appeal is allowed and the judgment of the High Court dated 19 March, 2012 is set aside.

(ii) Having regard to the facts and circumstances of this case we make no order as to costs.

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Hon. Justice Calanchini
PRESIDENT, COURT OF APPEAL

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Hon. Justice Almeida Guneratne
JUSTICE OF APPEAL

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Hon. Justice Prematilaka
JUSTICE OF APPEAL