Krishna v Takaliamma [2011] FJHC 143; Civil Action 299.2003L (7 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 299 of 2003L

BETWEEN:

GOPAL KRISHNA son of Marikam of Rarawai, Ba, Fiji, Cultivator.
Plaintiff

AND:

TAKALIAMMA daughter of Murgan as the Executor and Trustee of the Estate of Murgessan of Rarawai, Ba, Fiji and also at times residing at Surey, B.C. Canada, Domestic Duties.
1st Defendant

AND:

SUGAR INDUSTRY TRIBUNAL a body corporate duly constituted under the Sugar Industry Act Cap 206, 1984 having its registered office at Sugar House, Lautoka, Fiji.
2nd Defendant

Before: Master Anare Tuilevuka
Solicitors: Mishra Prakash & Associates for the Plaintiff
: Vasantika Patel for the 1st Defendant

Date of Ruling: 07th March 2011.

[1]. Before me is a summons for assessment of damages. The plaintiff's statement of claim was filed in September 2003. The claim seeks various reliefs – principal amongst which is an Order that the Deputy Registrar do execute to the plaintiff an instrument of tenancy over a certain parcel of land comprising 16 acres to be carved out of Crown Lease No. 6614. Apparently, the Agricultural Tribunal had declared tenancy in favour of the plaintiff over the said 16 acres on 1st April, 2003. The 1st defendant is the registered proprietor of CL No. 6614.

[2]. The plaintiff seeks the same order in relation to cane contract No. 1515, Rarawai Sector and that monies held in FSC, Ba be released to him.

[3]. The plaintiff's tenancy was to have commenced from 13th February 1993 through to 31st December 2020. Obviously, the plaintiff expects that he would be paid the cane proceeds from the 16 acres in question. However – as the plaintiff alleges - he has not been paid any monies for his share of cultivation in 2001. Furthermore, he claims that the defendant has not executed any instrument of tenancy to him. The plaintiff seeks damages and interest of 10% per annum.

[4]. On 2nd September 2003, Mishra Prakash & Associates ("MPA") filed an ex-parte summons seeking the following orders:

• (a) that the Deputy Registrar at the High Court at Lautoka do execute the Instrument of Tenancy over State/Crown lease No. 6614 situated at Rarawai, Ba, Fiji.
  
• (b) the Deputy Registrar of the High Court at Lautoka do sign all relevant documents to transfer Cane Contract No. 1515, Rarawai Sector to the Plaintiff and the monies presently held in Fiji Sugar Corporation Limited, Ba be released to the plaintiff.
  
• (c) costs in this action to be taxed if not agreed.
  
• (d) upon granting the above reliefs, the action against the 2nd defendant be discontinued with no order as to costs.
  

[5]. The application was supported by an affidavit of Gopal Krishna sworn on the 2nd of September 2003. This affidavit basically reiterates facts as pleaded. On the 3rd of September 2003, Byrne J granted order in terms of the application. On the 23rd of October 2003, Iqbal Khan & Associates filed an acknowledgment of service for the 1st defendant and on the 13th November 2003 filed the statement of defence. Notably the defence mentions that the decision of the Agricultural Tribunal was being appealed.

[6]. On 27th November 2003 Summons for Directions was filed and order in terms granted on 10th December 2003. On the 6th September 2004, MPA filed a summons seeking an order that the Deputy Registrar of the High Court in Lautoka in place of the 1st defendant do execute and sign all documents to issue an instrument of tenancy and transfer the cane contract to the plaintiff. Singh J granted order in terms in chambers on 30th September 2004. The order was sealed on the 1st of October 2004. Meanwhile orders for summons for directions were sealed on 15th of October 2004.

[7]. On 1st November 2004 - MPA filed a summons to strike out defence and enter judgment in favour of the plaintiff on the grounds that it discloses no reasonable cause of action, that it is scandalous, frivolous and/or vexatious, that it may prejudice, embarrass, and/or delay the fair trial of the action, and that it is otherwise and abuse of the process of the court. This application was heard by Finnigan J on 8th March 2005 who made the following orders:

• (a) the defendant's defence is struck out
  
• (b) all monies presently held under Cane Contract No. 1515 Rarawai Sector do be paid to the plaintiff
  
• (c) the defendant do pay the plaintiff damages
  
• (d) the defendant do pay interest on damages at the rate of ten percent (10%) per annum under the Law Reform (Miscellaneous Provisions) (Death and Interest Act Cap 27) of Laws of Fiji on the damages assessed to the date of payment
  
• (e) costs are reserved to be costs in cause.
  

[8]. On 26th October 2007, Phillips J made orders to substitute Wardavellu Reddy plumber of Canada and Bal Ram Reddy plant operator also of Canada as 1st defendant. They had been granted letters of administration de bonis non No. 3928 over the estate of Murgessan.

[9]. On 19th of November 2007, MPA filed a summons for assessment of damages. The supporting affidavit of Rakeshwar Prakash and of Gopal Krishna were filed on the 22nd of August 2008. On 6th of November 2008 MPA filed an ex-parte motion seeking leave to serve the summons by substituted service by prepaid registered post.

[10]. This was followed by another ex-parte motion on 16th March 2009 seeking leave for substituted service by way of advertisement in a daily newspaper. Order in terms were granted on 18th September 2009. Thereafter the case was called over in Court and adjourned several times. On 23rd November 2009, Ms Vasantika Patel appeared in court for the 1st defendant. She advised that she would be filing an application to set aside the default judgment. The case was then adjourned several times over but the setting aside application has not happened. Finally on 3rd March 2010 - this case was set down for hearing on assessment of damages. Ms Patel again appeared to advise that the plaintiff had applied to have the defence struck out as the Central Agricultural Tribunal has ruled on the appeal. But no ruling was ever put before me.

[11]. Ms Marlene Prasad for MPA insisted that she will proceed with the hearing. At the hearing the plaintiff gave sworn evidence in Hindi. He referred to his affidavit sworn on the 19th of August 2008 and read out paragraph 2 which confirmed that he obtained judgment for damages against the defendant on the 8th of March 2005. He also read paragraphs 5 (a) to (f) of his affidavit which deposes as follows:

• (a) I am advised by the Fiji Sugar Corporation Limited that the total cane payment received in 2001 was $21,026.98 (twenty one thousand twenty six dollars and ninety eight cents)
  
• (b) Annexed hereto and marked with letter "B1" is a copy of the statement from Fiji Sugar Corporation Limited
  
• (c) Total expenses amounted to $7,974.73 (seven thousand nine hundred seventy four dollars and seventy three cents)
  
• (d) Annexed hereto and marked with letter "B2" is a copy of the statement from Fiji Sugar Corporation Limited
  
• (e) The total income after expense amount to $13,052.23 (Thirteen thousand fifty two dollars and twenty three cents)
  
• (f) My half share for 2001 season amounted to $6,526.11 (Six thousand five hundred twenty six dollars and eleven cents). I have not been paid this share.
  

[12]. Krishna said that he was not paid for his share of cultivation in 2001 and 2002. For 2001 after all costs, his half share was $6,526.11 and for 2002 he was entitled to $4, 387.49. The breakdown of these are set out on paragraph 6 (a) to (f). He annexes to his affidavit marked "C" copies of statement from Fiji Sugar Corporation for 2002 which confirms payments made. Paragraph 6 (a) to (f) states as follows:

• (a) The total cane payment received in 2002 was $9,486.56 (Nine thousand four hundred eighty six dollars and fifty six cents)
  
• (b) Total expenses amounted to $711.49 (Seven hundred eleven dollars and forty nine cents.)
  
• (c) The total income after expense amounted to $8,774.98 (Eight thousand seven hundred seventy four dollars and ninety eight cents)
  
• (d) My half share for 2002 season amounted to $4,387.49 (Four thousand three hundred eight seven and forty nine cents)
  
• (e) I have not been paid this share
  
• (f) Annexed hereto and marked with letter "C" is a copy of the statement from the Fiji Sugar Corporation Limited for 2002
  

[13]. Krishna also explains that the 1st defendant did not leave any address as required under the Probate Succession and Administration Act. That is why seeks an order that the Deputy Registrar signs an instrument of tenancy. He said he paid a total of $24, 707.04 on the Agricultural Tribunal matter and seeks $36, 121.67 in damages and costs as deposed in paragraph 18 of his affidavit as follows:

The total damages and costs from paragraph 5 to 17 amounts to $36,121.67 (thirty six thousand one hundred twenty one dollars and sixty seven cents)

[14]. Krishna also claims interest on judgment at the rate of 10% per annum from the 1st of January 2001 to the 19th of August 2008 which was the date of judgment. He also seeks costs. The total damages he seeks $63,692.89.

[15]. In cross-examination by Ms Patel, Krishna agreed that his claim was based on his occupation of 16 acres of CL6614. He agreed that in his application to the Agricultural Tribunal, he had taken along a copy of CT6614. He agreed that he had taken out the Tribunal reference because he was removed from the property in 2001. When put to him that he was not on the land in 2002, he replied that he was on the land and that he did plant sugar cane on the land. When asked if he did cut cane in 2001, he replied that "some cane was still left". The crux of Ms Patel's entire cross-examination actually picked on and centered around that last remark.

[16]. Ms Patel's skilful cross examination of the plaintiff is admirable. However, I see no reason to disbelieve the plaintiff that he in fact cultivated the land in 2001 and 2002. The Agricultural Tribunal's decision appears to have accepted that a given. Furthermore, a second witness – one Dharam Lingam Reddy f/n Adi Millar Reddy of Kermode Road, Lautoka – gave sworn evidence in Court that he has known the plaintiff since childhood and that the plaintiff had been cultivating the land in question in 2001 and 2002.

[17]. I accept the plaintiff's claim of $10,913.60 made up as follows:

• [i]. for 2001 after all costs, his half share was $6,526.11, and
  
• [ii]. for 2002 his half share was $4, 387.49.
  

I also award costs which I summarily assess at $1,500-00.

Anare Tuilevuka
Master

At Lautoka
07th March 2011.