Rabukawaka v National Bank of Fiji [1997] FJHC 31; Hbc0291d.96s (6 March 1997)

Fiji Islands - Rabukawaka v National Bank of Fiji - Pacific Law Materials

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 291 OF 1996

BETWEEN:

ADI SOKULA RABUKAWAQA

Plaintiff

AND:

1. NATIONAL BANK OF FIJI

2. MUNEEM PRAN

s/o James Pran

Defendants

Mr. S. Chandra for the Plai

Mr. D. Jamnadas for the First Defendant

No appearance for the Second Defendant

DECISION

This is the first defendant's (D1's) Motion that the ex panjunction obtained by the Plaintiff on 21 June 1996 be diss dissolved forthwith.

The Plaintiff's case

In support of the motionarte the Plaintiff swore an affidavit that she bought the motor vehicle in question namely,mely, Motor vehicle Registration No. CP 178 (the "vehicle"), from the second defendant (D2) on or about 25 November 1995 and took possession of it since that date and it is still in her possession. She outlined in her said affidavit the circumstances leading to the transfer of the vehicle to her. In short this is how she put it, inter alia:

"That the consideration of the said sf the Resort also included in the arrangement to sell the sthe said vehicle to me by the Second Defendant the Vendor. STEPHEN JOHN DISTON who is the Vendor is my husband had reduced the sale price of the Resort from $425,000.00 (FOUR HUNDRED TWENTY-FIVE THOUSAND DOLLARS) to $350,000.00 (THREE HUNDRED FIFTY THOUSAND DOLLARS) in consideration of receiving the said vehicle from the Second Defendant to me encumbrance free."

She said that Viliame Mataitoga, the Manager of the National Ba Fiji, Levuka Branch "assured" her that that the possession of the said vehicle be given to her immediately.

She said there was a Bill of Sale Registration No. 2959 of 1993 but it was discharged by D1. The afhe affidavit further reveals that the sale of the Ovalau Resort to D2 has fallen through and D1 has cancelled all the banking facilities provided to D2 and it is in the process of realising its securities held against the properties and chattels of D2 and that the vehicle is also secured to D1 under the Bill of Sale. She said that she was surprised to find that the vehicle is under a Bill of Sale Reg. No. 2394 of 1995, but then she alleges that although registered it is defective in a number of ways which she has outlined in the affidavit.

In a furtffidavit the Plaintiff says that "the priority of the security over the said vehiclehicle is lost by virtue of personal representation made by Mr. Mataitoga and the defects in the Bill of Sale as aforesaid even if there is another registered Bill of Sale". She says that D2 did become the registered proprietor of Ovalau Resort but "the whole transaction had to be later reversed because of the ill advise and no proper financing by the First Defendant".

First Defendant's Replyn>

The First Defendant says that it has a registered Bill of Sale over the vehicle being Bill of Sale Book No. 95 Folio 2394 registered on 9 August 1995. It says that its (D1's) Bill of Sale takes priority against any claim the Plaintiff may have. The Bill of Sale was never discharged. The Plaintiff is not a bona fide purchaser for value. It says that the Second Defendant has defaulted in his obligations and that D1 is now entitled to seize and sell the vehicle.

The said Viliame Mataitoga who was the Branch Managevuka for D1, and who is not the Senior Training Officer emer employed by D1, deposed denying the allegations made against him. He said that he never gave an assurance that the vehicle was to be transferred to the Plaintiff and that there was no discussion about the vehicle at the meeting where he was present.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The D1 further states that the Ovalau Resort has not been sold to D2 as the Plff herself admits and yet tyet the Plaintiff is relying on this alleged sale to claim title to the vehicle. The D1 denies that there are any defects in the Bill of Sale itself as alleged by the Plaintiff. The vehicle it says was transferred to the Plaintiff without its knowledge or consent.

Consideration of the issue

I have given careful consideration to the affidavits filed by arties and to the submissions made by both counsel.

It is abundantly clear from the affidavit evidence before me that there is a of Sale still in existence ence in relation to the vehicle. This is not denied by the Plaintiff. However she talks of the Bill of Sale being defective.

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is hard to believe that the second defendant would or could transfer the ownership of the vehicle to the Plaintiff when it is secured by the said Bill of Sale in favour of D1.

It does not appear that the Plaintiff was a party to the transactetween the second defendant and the Plaintiff's husband ford for the sale of Ovalau Resort. The evidence reveals that the sale has fallen through and the Resort has reverted to the vendor (the Plaintiff's husband). But the vehicle has remained with the Plaintiff.

The D1 has completely denied that it had anything to do with the alleged transaction or that it had its blessings to it in any shape or form.

As stated by Mr. Mataitoga in his affidavit in Reply filed 25 November 1996, and I agree with him, the Plaintiff failed to make certain material disclosures. These are contained in paragraph 8 of the said affidavit. Some of them are that she did not disclose any reasons why D1 was not allowed an opportunity to execute the Agreement dated 1 December 1995 and the note dated 7 May 1996; she failed to disclose details as to why the purported sale of the Resort fell through and she failed to disclose the reasons why she only transferred the vehicle into her name on 29 March 1996 while all the time holding out that the vehicle was transferred to her on 25 November 1995. The D1 says that the transfer was only done in order to prevent the First Defendant from executing its securities.

On the facts of the case as presented to me, to succeed in her application for the interim injunction to remain, the Plaintiff has to jump the first hurdle, and that is to satisfy the Court that she can claim ownership of the vehicle in the face of the said registered bill of sale. I am not at all convinced that the said Mataitoga agreed to discharge the Bill of Sale. If that was so there should have been something in writing evidencing the alleged transaction in which the purchase price was reduced by the Plaintiff's husband to allow her possession of the vehicle. There is nothing of the sort before me.

In all ircumstances of this case I cannot interfere in anyway with D1's rights under the said Bill Bill of Sale. If the Plaintiff considers she has a claim against the first defendant then she can do so and claim damages rather than an injunction which she has sought in this action.

For these reasons, I refuse the application for injunction. The interim injunction granted by me on 21 June 1996 is therefore dissolved with costs against the Plaintiff to be taxed if not agreed. However, since the first defendant has stated in its said affidavit of 25 November 1996, that it is prepared alternatively, to accept an Order on the terms that the vehicle registered No. CP 178 be valued and impounded until the resolution of this case, I make this further Order accordingly with liberty to each party to apply for directions.

D. Pathik

Judge

At Suva

6 March 1997

Hbc0291d.96s