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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC429 OF 1999L
MOHAMMED HUSSAIN
V
ABDUL AZAMAT ALI
Gates J.
Mr Iqbal Khan for the Plaintiff
Mr Akbar for the Defendant
16 November 2001, 10 October 2002
1 March 2005
Mohammed Hussain v Abdul Azmat Ali
JUDGMENT
Summary judgment Ord. 86; specific performance; partial surrender of State Lease; agreement to subdivide pursuant to sale and purchase agreement; consent of Director of Lands given subject to conditions; private survey and submission to Director of Town and Country Planning outstanding; specific performance of an agreement relating to property; summary judgment procedure; affidavit verifying facts; deponent stating his belief that there is no defence; whether immediate contractual obligation; non est factum; whether ambiguity; no evidence to show bona fides of defence.
[1] The question here is whether the defendant has any issue in dispute with the plaintiff which ought to be tried.
[2] The plaintiff issued a writ indorsed with a statement of claim on 12 November 1999. It was accompanied by an inter partes summons and his own affidavit in support. The summons sought partial surrender of a State Lease, No. 12477, and specific performance of an agreement to subdivide the land so as to provide for a residential lot for the plaintiff, pursuant to a sale and purchase agreement and a Deed dated 7 May 1997 and 15 October 1997 respectively.
[3] Other orders sought were the engagement by the defendant of a private surveyor to carry out the necessary survey of the lease and the seeking of the approval of the Director of Town and Country Planning. Lastly, an order was sought to restrain the defendant from cultivating the land until the subdivision was carried out.
[4] It took some time before the defendant had engaged a solicitor to assist him in the proceedings. A defence was filed on 3 November 2000 and an affidavit in opposition on 16 November 2000.
[5] A further summons was filed by the plaintiff on 29 January 2001 seeking an order that the defence be struck out in reliance on Order 18 r.18, on the ground that no reasonable cause of defence had been disclosed. In all, 3 affidavits have been filed by the plaintiff. Time was given for written submissions which were then filed.
[6] The first summons was said to have been made pursuant to Order 29 r.1 and the second, pursuant to Order 18 r.18. In effect this application is one made pursuant to Order 86. The summonses in combination seek specific performance and summary judgment, so I shall treat the applications as if they had been brought under Order 86. The claim is an action begun by writ indorsed with a claim for specific performance of a written agreement for the sale of property [Order 86 r.1]. The agreement envisages also the partial assignment of a State Lease to the plaintiff. The application therefore satisfies the procedural requirements of Order 86 r.2. Not only do the affidavits deal with the facts preceding the signing of the agreement, and verify the facts on which the cause of action is based, but the plaintiff deposes that he believes the defendant has no defence to the claim. [Order 86 r.2 (1).]
[7] The plaintiff agreed to sell a piece of land to the defendant for $35,000. The agreement was in the form of a sale and purchase agreement. Under the sub-heading in that agreement "Transfer of Property" the following was stated:
"Upon payment of the purchase price and all other moneys payable hereunder, the vendor will transfer free of encumbrances or charges to the Purchaser the said land and developments and will do execute and perform all acts, deeds and things necessary to vest the said land unto the Purchasers’ name.
Upon transfer of Lease, the purchaser will apply for sub-division and costs of surrender of lease and preparation of a new residential lease after obtaining consent from Lands Department."
[8] There was the usual clause that time should be of the essence, but allowing for completion of the contract, beyond the 90 days stipulated, by mutual agreement.
[9] In the Terms and Conditions covering any possible default by the purchaser, the vendor was entitled to sue for specific performance of the agreement [clause 2(b)]. The Special Terms and Conditions at the end of the agreement stated the dealing was to be subject to the approval of the Director of Lands. The Director has already given his consent.
[10] Special Term 2 stated:
"The purchaser upon transfer unto himself is to subdivide subject to approval by the Director of Lands and Director of Town and Country Planning, 2000 sqm as per red mark in Schedule "A" and allocate the same to the vendor with no costs to the vendor.
ii) All costs involved in acquiring separate leases will be met by the purchaser."
iii)
No defence
[11] It is for the defendant to satisfy the court that there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of the action [Order 86 r.3].
[12] It is clear from the Agreement that upon transfer of the lease to the defendant, the defendant as purchaser had the immediate contractual obligation to apply for subdivision of that lease. The idea was for the plaintiff vendor from the sale to retain a piece of land for himself. Though the time clause was unrealistic in providing for only 90 days within which the two parts of the transaction were to be completed, an extension could easily have been agreed mutually, and such a situation was provided for in the clause.
[13] In his affidavit the defendant acknowledged signing the deed but said it was not fully explained to him. This deed granted to the defendant rights of access to his newly purchased land over the plaintiff’s land, and the defendant was to compensate the plaintiff with an equivalent amount of land from his side. He also agreed to put culverts in to assist drainage. The defendant signed the deed in the presence of his then own solicitor, Mr Babu Singh.
[14] I do not see a defence in this evidence. First, the deed is dealing with a collateral issue which has no bearing on whether the contract had been varied by oral and firm agreement to defer the subdivision by 10 years. Second, as was said by the Court of Appeal in Hewitt and Anor v Habib Bank Ltd (unreported) Court of Appeal, Fiji Civil App. ABU0007 of 2004S, 26 November 2004, (p.6):
"it is settled law in Fiji that a defence of non est factum will not lightly be allowed when a person of a full age and capacity has signed a written document embodying contractual terms (Fiji Development Bank v. Raqona [1977] FamCA 81; (1984) 30 FLR 151). The general rule is that a party of full age and understanding is bound by his/her signature to a document whether he/she reads or understands it or not. (See Gallie v. Lee [1971] A.C. 1004, 1016, 1019)"
[15] Though stating that the deed was not fully explained to him the defendant did not make the same claim concerning the sale and purchase agreement, when he had had the same solicitor acting for him.
[16] The defendant went on to state that the plaintiff had agreed with him that he could complete the subdivision within 10 years. He said the plaintiff was not in a rush. No details of what was said or agreed, what and when and in whose company it was said, are provided.
[17] The sections of the agreement bearing on the contractual obligation to subdivide are without ambiguity. They give rise to an immediate obligation. No time limit such as "within 10 years" is provided since the agreement clearly provides for immediate action upon transfer of the lease.
[18] But the parties had previously varied the contract. On one occasion the parties had varied the number of Lots to be subdivided off from 2 to 1. They went before a solicitor for that variation. On another occasion they dealt with the access and drainage matters and made a deed in the presence of their own solicitors.
[19] Through solicitors the defendant applied for the Director’s approval for the subdivision. The Director replied by letter to the defendant’s solicitors indicating that the next steps were to seek the approval of the Director of Town and Country Planning and to engage a private surveyor to carry out the necessary survey. After receiving the consent of 1 December 1997, the defendant did nothing more. This caused the plaintiff through solicitors to write to the defendant and complain of his laxity.
[20] The plaintiff’s solicitor wrote:
"Our client has now travelled all the way from Australia to carry out improvements on his piece of land but is very disturbed to find out that you are yet to comply with the conditions."
[21] To this there was no reply from the defendant. If there had have been an agreement to delay subdivision by 10 years, the defendant would have been swift to remind the plaintiff of it, and of the plaintiff’s reneging on their subsequent variation of the agreement. There was no such letter or account of oral remonstrance. Further correspondence from the plaintiff’s solicitor in 1998 and 1999 went similarly unanswered.
Conclusion
[22] This is not a case for extrinsic evidence. There is no ambiguity in the agreement. This is a clear case of default and I am not satisfied there is any defence to the claim.
[23] Accordingly I order as follows:
A.H.C.T. GATES
JUDGE
Solicitors for the Plaintiff: Messrs Iqbal Khan & Associates, Lautoka
Solicitors for the Defendant: Messrs M.K. Sahu Khan & Co., Nadi
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