Reddy v Goundar [2002] FJHC 221; HBC0020j.1998b (27 August 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0020 OF 1998

Between:

1. BHAGWANTH REDDY
s/o Ram Reddy

2. SUBHASH ANAND
s/o Ajvirappa

3. NARASH RAJU
s/o Yenkana

4. PRAKASH REDDY
s/o Subha Reddy

5. AMICHAND RAO
s/o Malarao

6. NAREN GOUNDAR
s/o Murgessa Goundar

7. KISHORE KUMAR
s/o Budhai
Plaintiffs

and

MUNIA GOUNDAR
s/o Ponsami Goundar
Defendant

Mr. A. Sen for the Plaintiffs
Mr. R. P. Singh for the Defendant

JUDGMENT

On 23 March 1998 the plaintiffs issued a Writ of Summons claiming against the defendant: (a) the sum of $21,000.00, (b) general damages, (c) interest and (d) costs. The claim arose in the circumstances as stated in the plaintiffs= Statement of Claim and in the evidence adduced by them.

The defendant denies the allegations made against him.

Evidence was given by the plaintiffs Bhagwanth Reddy (PW1), Subhash Anand (PW2), Prakash Reddy (PW3), Kishore Kumar (PW4) and Ram Chand Naidu (PW5).

In his defence the defendant testified himself (DW1) and called witnesses: Rev. Nathaniel Manikam Pillay (DW2), Reginald Pillay (DW3), Rev. Kamla Prasad (DW4) and Adilatchmi (DW5).

Plaintiff=s evidence

Evidence for the Plaintiffs was adduced along the lines stated in the Plaintiffs= Statement of Claim. The background facts as stated therein are:

FOR sometimes prior to January 1991 the defendant occupied a portion of land adjacent to land to Labasa Hospital more particularly described in Tenancy at Will issued by Land and Survey Department dated the 25th day of July 1977 and known as Crown Land Lots 93 7 230 CT 8645 Naiyaca in the province of Macuata, at Labasa within the island of Vanua Levu.

On or about 15 January 1991 the defendant convinced the Plaintiffs the idea of subdividing the said land (hereafter reffered to as >the land=) into several portions to sell to each of the Plaintiff a portion of the same.

The Subdivision proposed would have entailed each plaintiff being a holder of the a portion of the said land. The defendant accordingly prepared a scheme plan and induced each of the Plaintiff to purchase a lot by making the following representation:

that the Lands and Survey department approved a subdivision of the said land.

that the subdivision was approved in accordance to the said scheme plan.

that the Lands and Survey department had agreed to allow family members of the defendant to lease each portion.

that the proposed subdivision was to commence as soon as possible and the separate leases would be issued within 12 months.

THAT the representations were made by the defendant orally in a meeting where the plaintiffs attended with other prospective purchasers. That the representations, and each of them was, false and untrue in the particular:-

that the defendant never had a approved subdivision scheme plan and that the Lands and Survey department had never agreed to a family subdivision of the said land.

that the plaintiffs were never to receive a lease of their promised portion.

that the defendant at the time when he made the said representations fraudulently and either well knowing that they were false and untrue or recklessly not caring whether true or false.

that the defendant made the said representations in order to induce the plaintiffs to buy and become a holder of a portion of the land in his purported subdivision of the said land.

The plaintiffs say that they acted on the said representations in the belief that the same was true. They were induced to pay and did on or about 15 January 1991 and thereafter pay a sum of $3000.00 each to the defendant in order to become owners of a portion of the said land in the purported subdivision.

Sometimes in August 1995 the Plaintiffs say that they discovered that the said land was not subdivided, hence it was >worthless= to them. Consequently the Plaintiffs lost the sum of $3000.00 each paid to the Defendant which he has refused to refund. Therefore the Plaintiffs say that they have suffered loss and damage.

Defendant=s evidence

The defendant (DW1) testified that there was a meeting of about 20 people at his house at which the Divisional Surveyor Northern Mr. Balram and one Shiu Sami Naidu came with the Minister. He said that the Lands Department wanted to subdivide the land. The Lands Department people said at this meeting that the Government had no money and that it will have to be a family subdivision and the family will have to pay the sum of about $9000.00. The said Balram at the meeting said that they pay $3000.00 to him for a block each. The defendant said that he gave him the sum of $6000.00 at his house. The said Balram said that a receipt will be sent to him.

The defendant denied all the allegations made against him. He denied that any of the plaintiffs paid him any money. In cross-examination he said that he was not the one interested in subdividing. He denied making any request to Lands Department to subdivide.

The defendant said that he does not know where Balram is now. He said Naidu was the >middle man= between the Lands Department and them.

The DW2 who is DW1's brother-in-law testified that he paid $3000 to Balram at DW1's place two days after the said meeting. He corroborated the testimony of DWI in other respects. He said that Naidu is dead now. He did not see DWI receive any money; there was no discussion that money was to be paid to the defendant.

The DW3 is also a brother-in-law of DWI. He said that it was agreed at the meeting that $3000 was to be paid to Balram for subdivision. Balram was a friend of DW3.

The DW4, a Pastor of 13 years testified that he was present at the said meeting at DW1's place. He made payment of $3000 to Balram at the defendant=s place. In cross-examination he said Balram was a mediator between Naidu and the Lands Department.

The DW5, the defendant=s wife, testified that she did not receive any money from anyone. She said that there was a meeting but she was in the >back= of the room.

Consideration of the issues

The plaintiffs= claim is made on the alleged >fraudulent misrepresentation=. I have outlined hereabove the evidence as adduced from both sides.

Upon a careful analysis of the evidence it is clear that it was a family affair; the plaintiffs are all related; they all agreed to buy a piece of land once the land was sub-divided. Some of them paid $3000 each to Balram and who in turn paid some of it to the said Shiu Sami Naidu.

I find as fact that the land was to be sub-divided by the Lands Department and not by the Defendant. That at the meeting held at the defendant=s house, he did not make any false representation. Each of the defence witnesses testified that they paid money to Balram and not to defendant. I prefer to accept the testimony of the defence witnesses to that of the plaintiffs.

At the said meeting the Minister for Lands, Balram an official for the lands Department and one Shiu Sami Naidu were present. I find as fact that it was the Minister and Balram who said that the land would be subdivided and the plaintiffs will be given a block of land each upon payment of $3000.00 initially. There was no representation of any kind made by the defendant and he was not in a position to make any; the plaintiffs knew that the application had to be made to the Lands Department directly. In fact the plaintiffs went and paid the application fees to the Lands Department and some of them have been issued with receipts for same.

I am not satisfied on a balance of probabilities that any of the plaintiffs paid the defendant the sum of $3000.00 each. It is a matter of comment as to why none of them obtained receipts for alleged payment for these substantial amounts. The plaintiffs are all well-educated. It has not been explained why it took the plaintiffs seven years since the said meeting in January 1991 to lay a claim against the defendant. Hence on a balance of probabilities the plaintiffs have not proved their claim against the defendant.

In the outcome, the facts as found by me do not constitute fraudulent misrepresentation. The plaintiffs have not proved their case on a balance of probabilities. Their action is therefore dismissed with costs to the defendant in the sum of $500.00.

D. Pathik
Judge

At Labasa
27 August 2002