Singh v Sharma [2003] FJHC 4; Hbc0984J.1986 (17 April 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. 984 OF 1986

Between:

MAHENDRA PRATAP SINGH
(f/n Deo Narayan)
Plaintiff

and

AHILYA SHARMA
(as executrix and trustee of the estate of
Ram Chandra Sharma - deceased)
First Defendant

and

DINESH CHANDAR SHARMA
(f/n Ram Chandra Sharma)
Second Defendant

V. Maharaj for the Plaintiff
R. Naidu for the Defendants

JUDGMENT

The subject matter of this very old case is Lot 10 on DP 4483 comprised and described in Certificate of Title 17691 and situated at Chandra Prasad road, Waila, Nausori.

The issues between the parties are both very well pleaded and further defined in the minutes of a pre-trial conference held in November 2001.

The Plaintiff told me that he is a retired registered surveyor who now lives in Australia. In November 1970 he entered into a written agreement with Ram Chandar Sharma deceased (RCS) a copy of which was the first document in the Plaintiff’s bundle of documents tendered by consent.

Under this agreement (the first agreement) drawn up by Davendra Pathik Esq, solicitor the Plaintiff agreed to carry out certain subdivisional and engineering works for RCS who was the owner of the land which it was proposed to subdivide, namely part of CT 11199 being DP 3405. A copy of the plan is attached to the agreement. The works to be carried out by the Plaintiff are set out in the agreement and in consideration of the performance of those works the Plaintiff was to become entitled to the transfer from RCS to him of one of the newly subdivided lots, Lot 10, at a price of $1,300.00 (clause 4 (a) of the agreement). Lot 10 can be seen on the bottom left hand side of the plan.

Clause 4 (b) of the first agreement provided that “if for some reason the proposal for Lot 8 as provided in clause 1 (a) herein is not approved then the sum of $100.00 shall be added to the purchase price of $1,300.00 ...”

The Plaintiff told me that owing to the boggy nature of the land it did not prove possible to subdivide Lot 8 into two lots as provided in clause 1 of the first agreement. This difficulty resulted in an alteration to the eastern boundary of Lot 10 and the removal of direct access to the road. A comparison of the plan attached to the first agreement and Plaintiff’s document 13 illustrates the alterations made.

It is not disputed that on 25 November 1970 the Plaintiff paid a $100.00 deposit towards the purchase of Lot 10 leaving a “balance now $1,200” (Plaintiff’s document No. 2).

On 24 August 1971 the Plaintiff and RCS reached a second agreement. A copy is Plaintiff’s document No. 7. The preamble to the agreement reads in part as follows:

“Whereas the surveyor already prepared proposals for CT 1199 (balance of ) Lots 1 to 44 as per SLB 27/1/1613. The surveyor has been fully paid up for his services till now. It is hereby agreed as follows: ...”

Clauses 7 and 8 of the agreement read:

“7- The total fees agreed for the above services of the surveyor is two thousand five hundred dollars ($2500) i.e. 1600 for eng, plans, 300 supervision, 600 titles. Deposit - $1200 (One thousand two hundred dollars).

8- The deposit mentioned above may be utilised to pay the balance owing on Lot 10 SLB 27/1/1613 in that case subject to survey and final registration, the said Lot 10, to be transferred to the surveyor at the surveyors cost. Landlord to complete road by end of July 1973.”

It is not disputed that on the same day that the second agreement was signed the Plaintiff paid RCS the sum of $1,200 “being the full purchase price of Lot 10 SLB 27/1/1613. The Lot 10 subject to survey and final registration to be transferred to (the Plaintiff)”. A copy of the receipt signed by RCS is Plaintiff’s document No. 3.

Three things may immediately be noted about the second agreement. First, the surveyor “has prepared proposals for Lots 1 to 44”. Lots 1 to 44 of course include Lot 8. Secondly, the reference SLB 27/1/1613 can be found in Exhibits A, B and C which are all plans for the proposed subdivision of CT 11199. Thirdly, and most relevantly, upon payment of the balance owing on Lot 10, the only conditions precedent to the transfer to the Plaintiff of Lot 10 are those conditions mentioned both in the agreement and in the receipt namely “subject to survey and final registration”. There is no mention of Lot 8 or clause 1 of the first agreement or indeed any mention of the first agreement at all.

In the years following the second agreement the relationship between the Plaintiff and RCS deteriorated. Whether this was because of the need to alter the shape of Lot 10 or whether it was as a result of the Plaintiff’s admitted failure himself to complete all the works comprised in the second agreement is not clear. The Plaintiff told me that he was unable completely to progress the work because RCS regularly failed to deliver the required materials on time. Unfortunately RCS died in 1992 and the second Defendant who was only a young child when the disagreements arose was obviously unable to assist. From the documents disclosed it is however apparent that there were some substantial delays in completing the subdivision.

In November 1973 RCS wrote to the Plaintiff (Defendants’ document 19). In the first paragraph RCS wrote:

“I have to inform you that you have failed to carry out your survey and supervision engineering works as promised per agreement dated 24 August 1971.”

He continued in the third and fourth paragraphs:

“You have been using delaying tactics for the last 5 years .. therefore I had no alternative but to revoke our agreement and let the contract to Armstrong and Asphalt.

Please note your failure to abide by that agreement has made it null and void. Therefore you are not entitled for any fees etc as promised. Services has not been rendered. Be reminded that there now is no agreement in force and you are illegally squattering on my unsubdivided land and arrangements are being made to evict you ... You are hereby stopped to do any improvements on the Lot 10 of SLB 16/1/1613.

However if you are still interested to purchase the above block at improved price then contact me through Macmanus ...”

Although RCS continued to maintain that the Plaintiff was “squattering” on the land correspondence about Lot 10 continued between RCS and the Plaintiff for several years. Examples include Defence Documents 36, 37, 38 and 39, all letters sent in 1976.

In about 1978 the Plaintiff began building a house on Lot 10. In view of the fact that the land had still not been transferred to the Plaintiff by RCS who was disputing his right to its ownership construction of the building, said by the Plaintiff to be worth $50,000 was not formally approved. The consent to the building generated much correspondence between the Nausori Town Council, the Director of Town and Country Planning, RCS and the Plaintiff (see e.g. Defence documents 53, 54, 55, 56, 57, 58, 59 and 60).

On 2 June 1978 (Defence document 60) the Nausori Town Clerk advised RCS that he was free to take legal proceedings against the Plaintiff in trespass. A chronology of the subsequent events is annexure N to an affidavit filed by the Plaintiff in December 1999. It is sufficient to mention the most important developments.

On 15 November 1984 RCS transferred Lot 10 to his son, the second Defendant (Defence document No. 72). On the same day RCS took a mortgage over the land for the full sum of the purchase price which was stated to be $15,000 (Defence document 77).

On 21 October 1985 the second Defendant gave the Plaintiff notice to quit Lot 10.

On 16 January 1986 the second Defendant issued section 169 proceedings against the Plaintiff.

On 4 April 1986 the section 169 proceedings were dismissed by the Supreme Court (Rooney J).

On 4 July 1986 the Fiji Court of Appeal dismissed the second Defendant’s appeal against the dismissal of the Section 169 proceedings. A copy of the Judgment of the Fiji Court of Appeal is annexure O to the previously mentioned affidavit. On page 2 of the Judgment the Court wrote:

“Here there are disputed facts and allegations of fraud accompanied by supporting facts that cry out for a more careful investigation then would be possible on a summary proceeding in chambers ....”.

On 30 July 1986 the Plaintiff lodged a second caveat against the land pursuant to leave granted by the Supreme Court (Annexure Q).

On 17 September 1986 the present proceedings were commenced.

On 1^st and 2^nd April 2003 I heard the Plaintiff and the second Defendant. As previously mentioned RCS died in 1992 and the second Defendant was only a child when the dispute between RCS and the Plaintiff arose.

The Plaintiff produced the agreements reached and the plans submitted by him. He told me something of the work that he had done for RCS and explained why he had been unable himself to bring those works to completion. Since the Plaintiff was the only surviving witness to those events his evidence was substantially uncontradicted.

In an effort to show that the Plaintiff had failed to honour the first agreement Mr. Naidu, who handled a difficult brief with considerable professionalism, concentrated on the failure to sub-divide Lot 8 as provided for in clause 1. But while it is not in dispute that Lot 8 was never in fact subdivided as originally envisaged there was nothing to contradict the Plaintiff’s assertion that subdivision of this Lot was in fact not topographically feasible and that this was not only accepted by RCS who entered into the second agreement without any mention of Lot 8 but was also foreshadowed by clause 4 (b) of the agreement. It is also the case that RCS submitted exhibit D – DP 4483 in March 1997. This is a plan for the subdivision of Lots 1 to 40 and includes an undivided Lot 8 (renumbered Lot 7).

As pointed out by Mr. Maharaj the only agreement which RCS claimed the Plaintiff had breached was the second agreement (see Defence document 19 already referred to) however no alleged breach of that second agreement, indeed no mention of the second agreement at all is to be found in the Defence as pleaded.

In my opinion the wording of the second agreement and in particular clause 8 already set out clearly implies that the first agreement was regarded by RCS as having been substantially performed. As I read this second agreement the transfer of Lot 10 was not conditional upon the complete performance by the Plaintiff of the further works agreed under the second agreement but was subject only to payment of $1,200 plus survey and final registration.

As is clear from the correspondence RCS rightly or wrongly believed that the Plaintiff had failed to honour the second agreement. Whether or not he was justified in that belief did not in my opinion justify revocation of clause 8.

In my opinion the Plaintiff was entitled to specific performance of the agreement to transfer Lot 10 to him as soon as the final survey and registration had taken place following the payment of the $1,200.00. The final question is whether the transfer by RCS to his son affected the position.

I was not very impressed by the second Defendant’s account of why Lot 10 was transferred to him. He offered as an explanation a sum of $10,000 to $15,000 which he said RCS owed him for unspecified work which he had done for him. Since the second defendant supposedly bought the property (with a substantial house already built upon it) for $15,000 the most he could have owed his father, even on his own evidence, was $5,000. How this figure could be reconciled with the $15,000 mortgage was not explained.

The second Defendant told me that he was born in 1961. In 1984 he was therefore aged 23. The Plaintiff and RCS had been in a bitter dispute over the land since at least 1973. The second Defendant admitted that he was aware of the possession proceedings taken by his father and the defence filed by the Plaintiff.

Mr. Maharaj , relying on Ram Nandan v. Shiu Dutt (FCA Civ. App. 29/82 – FCA Reps 84/510) and the authorities there in cited submitted that the second Defendant’s right to ownership of Lot 10 was impeachable on the ground of fraud. I agree. In my opinion the second defendant, probably under the influence of RCS, took Lot 10 in an attempt to defeat the Plaintiff’s claim. That attempt was not, in my view successful.

I grant declaration (a), (b) and (c) sought in the Statement of Claim. I order the second Defendant forthwith to transfer Lot 10 to the Plaintiff free of encumbrances. I will hear counsel as to the other reliefs sought.

M.D. Scott
Judge

17 April 2003