Kaumaitotoya v Angco [2011] FJHC 22; HBC174.2007 (27 January 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 174 of 2007

BETWEEN:

KEPU KAUMAITOTOYA
[Plaintiff]

AND:

DR. RAYMUND ANGCO
[1st Defendant]

JHONA KUMAR
[2nd Defendant]

Counsel: Samad Law for the Plaintiff.
No appearance defendants.

Date of Judgment: 27th January, 2011

JUDGMENT

[1] This is the plaintiff's formal proof of his claim for damages against the defendant. The claim arose out of a vehicle transaction between the 1st defendant and the plaintiff.

[2] The defendant did not appear either in person or by legal representation.

Formal Proof

[3] The plaintiff, Kepu Kaumaitotoya is dead, and his wife being a trustee of his estate gave evidence on behalf of the plaintiff. According to her evidence, the 1st defendant was a medical practitioner and the plaintiff was one of the 1st defendant's patients. The plaintiff was the registered owner of the vehicle No EM 082 .The 1st defendant convinced the plaintiff that he would buy the plaintiff's vehicle. Accordingly, the vehicle was transferred to the 1st defendant but not for a valuable consideration. It was later transferred by the 1st defendant to one Dr Robert who also worked with the 1st defendant.

[4] Thereafter, the vehicle was transferred to Rakesh Kumar. Rakesh Kumar is the husband of the 2nd defendant. Subsequent transfers of the vehicle were done without the consent or knowledge of the plaintiff.

[5] The witness further stated that at the time of transferring the vehicle to the 1st defendant the plaintiff was of the understanding that the 1st defendant was going to give a sum of $ 20000.00 but the 1st defendant never paid that amount to the plaintiff. Whenever the plaintiff went to see the 1st defendant to collect money, the plaintiff was issued with slips but not cash. The plaintiff was told by the 1st defendant that the payments were withheld.

[6] When the plaintiff asked the 1st defendant to return the vehicle, the plaintiff was told that the vehicle was sold.

[7] The witness further stated that the first defendant convinced the plaintiff that the 1st defendant would pay $20000.00 and also induced the plaintiff to transfer the said vehicle.

[8] Although the witness did not tender any documentary evidence, I am satisfied that the 1st defendant entered in to a contract for the purchase of the vehicle belonging to the plaintiff and that he did not pay the purchase price $ 20000.00 to the plaintiff. Further, the evidence clearly shows that the plaintiff, being a patient of the 1st defendant was induced by the 1st defendant to transfer the vehicle in the name of the 1st defendant. Furthermore, it shows that the 1st defendant has taken the plaintiff's vehicle by fraudulent and deceptive means. The testimony of the witness was not challenged and therefore, I see no reasons to disbelieve the oral evidence of the witness.

[9] Therefore, the plaintiff is entitled to a sum of $ 20000.00 from the 1st defendant.

Interest

[10] The plaintiff is entitled to interest under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act. The cause of action arose in September 2006, when the 1st defendant transferred the vehicle in the name of the 1st defendant. I therefore, award interest from that date to the date of this judgment. i.e. a period of approximately four years at the rate of 6% pa. This computes to 20000.00 x 6% x4= $4800.00.

[11] There is no proof of general damages. Also there is no claim for special damages.

[12] The cost is summarily assessed in the sum of $500.00.

Orders

[13] The orders are therefore as follows:

1. The 1st defendant shall pay to the plaintiff the total sum of $ 24800.00 being the purchase price of $ 20000.00 and interest thereon of $4800.00.
   
2. The defendant shall pay the plaintiff's costs of $ 500.00.
   

Pradeep Hettiarachchi
JUDGE

At Suva
27 January 2011