Prakash v Native Land Trust Board [2011] FJHC 657; HBC090.2006 (18 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 090 of 2006

BETWEEN:

VED PRAKASH
father's name Mangla Nand of
Tau, Nadi, Storekeeper.
Plaintiff

AND:

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act Cap.134 and
FILIPE TABUYAWA of Tau, Malomalo, Nadroga.
Defendant

Appearances:
Mr. R.P.Singh of Patel & Sharma for the Plaintiff
Ms. I.Fifita for the Defendant

ORDER

1. On the 1st December 2009 this case was fixed for trial for the 26th and 28th of April 2010. On the 26th of April 20010 the Court recorded the following as jointly stated by the Counsels Mr. R.P. Singh- on instructions from Patel & Sharma appearing for the Plaintiff- and Mr. Tuifagalele appearing for the Defendant;
   

"1. That the Defendant is willing to pay the Plaintiff $70,000 as compensation for improvements on the land and

2. The Plaintiffs are seeking and willing to settle for $90,000/- as compensation for such improvements.

3. That the Defendant's Board is meeting this Friday and by next week Terms of Settlement could be entered as arising at a figure between $70,000/- and $90,000/-.

4. Parties are seeking to take this matter out of the trial roll today and 28th April and Mention the matter on 7 May 2010 Am."

Thereupon this Court made the following orders;

"This matter is taken out of the trial roll today (26th ) and 28th April 2010 subject to the order that, Plaintiff and Defendant jointly pay a wasted hearing fee to the Registry in $200/- for the two trial dates, if this matter is not settled by 7/May/2010. Taken out of the trial roll, and to be mentioned on 7/May/2010 10Am for terms of settlement."

2. On the 7th May 2010 when this matter was taken up for terms of settlement, on the following Counsels, Mr. S Nandan on instructions from Patel & Sharma for the Plaintiff and L. Mocedrau for the Defendant, appearing and submitting the Court recorded the following;
   

"The Defendant Counsel further confirms the terms suggested on 26/4/2010 and the willingness to pay $70,000/- but states the Board could not meet to finalize the figure between $70,000/ - $90,000/-.

1. Therefore the Board is noticed to meet within 2 weeks to discuss this settlement and provide a figure between $70,000/- and $90,000/- to enter that amount in payment for the Plaintiff."
   

Mention 28/May/2010 at 10Am."

The "Board" referred to therein is the 1st named Defendant Native Lands Trust Board and the 2nd named Defendant is FILIPE TABUYAWA. (Appearance for the Defendant is appearance for both 1st named and 2nd named Defendant.)

3. On the 28th May 2010 Mr.R.P.Singh of Patel & Sharma appeared for the Plaintiff and Ms. I.Fifita appeared for the Defendant and the following was recorded by Court;
   

"Parties want to consider taking the Lease for a further period instead of damages between 70,000- and 90,000/-. Defendant seeks 14 days to confirm. Parties agree that failing confirmation Court may enter judgment for an amount between 70,000/- and 90,000/-.

Mention on 15/June/2010 10Am for Terms of Settlement or to enter judgment as agreed. Both parties to be present, or in person on 15/June/2010."

4. On the 15th June 2010 Mr. R.P.Singh of Patel & Sharma appeared for the Plaintiff and Ms. I.Fifita appeared for NLTB and for the Defendant and on their submission the Court recorded the following;
   

"As per 28th of May 2010 order, as the parties are unable to agree on a figure between $70,000/- and $90,000/- and the Defendant willing to pay a sum of $70,000/- as recorded on 26/4/2010 and confirmed thereafter, and the Plaintiff willing to take the sum of $70,000/, Judgment is entered of consent for the sum of $70,000/- in favour of the Plaintiff against the Defendant without costs.

Parties were before Court on the previous dates on which settlement was arrived at and as such, Judgment as aforesaid to be entered for the sum of $70,000/- in favour of the Plaintiff without costs. (Mr. R.Singh confirms the Plaintiffs willingness to accept the said sum of $70,000/-).

(It is noted that the Plaintiff is not agreeable to the renewal of the lease.)"

5. The Judgment entered on the 15th June 2010 follows from the terms entered on the 28th May 2010, and on the Plaintiff further agreeing to the minimum sum of $70,000/=, which avoided the Court from deciding on a sum between $90,000/= and $70,000/= thereby making the judgment purely on the agreed terms of the parties.
   
6. The Defendants by Summons of 19th July 2010 and Amended Summons of 10th September 2010 made application to stay and set aside the judgment entered as aforesaid on the alleged assertion that Ms. Fifita stated on the 15th June 2010 that the Defendant does not agree to the sum of $70,000/=. There were two affidavits filed by Defendants Counsel Ms. Illisapeci Fifita dated 19th July 2010 and 10th September 2010 in support of the said application.
   
7. The Defendants Counsel Ms. Ilisapeci Fifita′s assertion that the sum of $70,000/= was not agreed is strange due to the fact that the Defendants Defence filed on 12th September 2006 at paragraph 11 refers to a sum of $70,700/= and states;
   

"......it is up to the 1st Defendant whether it elects to purchase the Plaintiffs structure and did value structure at $70,700 (Seventy Thousand and Seven Hundred Dollars) as at 1995. The 1st Defendant therefore did not agree with the $200,000 (Two Hundred Thousand Dollars) value proposed by Plaintiff. Such difference under clause 17(v) of the Lease has mandatorily to be settled by arbitration, and with respect, not this Honourable Court."

Therefore the Defendant has settled for a sum $700/= less than the valuation of 1995! (i.e. at $70,000/=). Paragraph 11 of the Defence clearly asserts that it is the "difference" that is left to be determined between $70,700/= and $200,000/=, whether by Arbitration or by Court. The Defendants Counsels have on more than one occasion taken time to enter terms of settlement before Court and agreed for Court to enter judgment accepting the jurisdiction of this Court. The figure of $70,000/= was obviously favourable to the Defendant and as such agreed by the Defendant and or their Counsel, and was not left for this Court to decide. It is $700/= less than the amount valued and offered in the Defense! On the 26th of April 20011 the Court recorded the following as jointly stated by the Counsels with Mr. Tuifagalele appearing for the Defendant;

"1. That the Defendant is willing to pay the Plaintiff $70,000 as compensation for improvements on the land and....

The Defendants Counsel does not deny or seek to change the record of the 26th April 2010.

8. How ever if the Defendant did not agree to settle for $70,000/= OR DID NOT AGREE TO SETTLE AT ALL and the settlement was on the initiative of the Defendants Counsel alone, then Counsel should state so, and an officer of the Defendant could have filed an affidavit to that effect. But that has not been stated or done. It is as if the settlement is sought to be rescinded by Defendants Counsel at her instance as no affidavit is filed by the Defendant.
   
9. If the Defendants Counsel have proceeded to settlement without instructions from the Defendant to do so, then from the first trial date that the matter was adjourned for terms, and on each and every subsequent date thereafter the Defendants Counsel have acted without instructions to settle or contrary to instructions from the Defendant, and in the process has mislead the Plaintiff as well as this Court.
   
10. The Court record is the final record. If any thing is recorded that was not said then Counsel should inform Court immediately. If the Defendants Counsel had stated as alleged that the Defendant had not agreed to settle for the $70,000/= then Counsel should have informed Court at least immediately after 28th May 2010 and not wait till 19th July 2010 over one month after the judgment was entered on 15th June 2010.
    
11. Paragraph 12 and 13 of the 19th July 2010 affidavit(1st affidavit) of Ms. Illisapeci Fifita states that she has been "advised" as to what took place on 15th June 2010 when consent Judgment was entered. If so that conveys that she was not in Court that day and she is swearing to matters on "advise" by another which amounts to hearsay in the absence of an affidavit from that other person, in her ATTEMPT TO CONTRADICT THE RECORD, or worse avoiding to swear, out of her personal knowledge and observation as to what transpired in Court, which could amount to not being the whole truth and not being nothing but the truth. The record bears that Ms. Fifita did appear for the Defendant on the 15th June 2010! Therefore what she swears to in her 1st Affidavit of what took place in Court is at the instance of another's "advice" to which she wisely resists to swear by qualifying it as "advised"! In the 1st affidavit therefore she has stated as "advised" what to her knowledge she realized she cannot swear to - it being perhaps an untruth! The terms entered on the 28th May 2010 is not contradicted or denied by the Defendant or Defendants Counsel. On the 28th May 2010 the Defendants Counsel has specifically agreed to enter judgment for a sum between $70,000/= and $90,000/=! On the subsequent date (15th June 2010) the Plaintiff has conceded to enter judgment for the minimum amount agreed being $70,000/=. This Court does not see a rational cause for the Defendants Counsel to have stated on the 15th June 2010, as she alleges, that the Defendant did not agree to enter judgment of consent for $70,000/=, as the Defendant has already agreed to enter judgment between $70,000/= and $90,000/=!
    
12. The Plaintiffs affidavit in reply is to the second affidavit of Ms. Illisapeci Fifita dated 10th September 2010. At paragraph 25 and 26 of her said second affidavit, contrary to what Ms. Fifita herself asserts to convey at paragraph 12 and 13 of her first affidavit of 19th July 2010; she states that she was in Court on the 15th of June 2010. At the best Ms. Fifita′s recollection improves with time, or she has submitted to adopting another's "advice" as her own evidence in the 2nd affidavit. If a consent judgment had been entered without consent that is a serious matter that could not be lightly forgotten, and conveniently remembered. How such an alleged incident required "advise" on the 19th July 2010 to swear in an affidavit, and required no such "advise" to swear subsequently on 10th September 2010, is a mystery at the least to this Court, and certainly at least not cogent and sufficient evidence to contradict the record.
    
13. Whether any consent or otherwise of the Defendant was conveyed to Court on the 15th July 2010 or not, the consent to enter judgment for $70,000/= was given by the Defendant on the 28th May 2010. How is it possible that Court has accurately recorded the terms and submissions of Counsel in this case on 26/4/2010, 7/5/2010 and again on the 28/5/2010 and not do so on the 15/7/2010? If the Defendants Counsel has meekly permitted the judgment to be entered on the 15th June 2010 contrary to instructions from the Defendant, then it would have done the Defendants Counsel much better to have admitted that and proceeded to set aside the judgment, than proceed to do so by seeking to alter the record on "advice". The Defendants amended Summons is futile if it is to set aside the judgment of 15th June 2010, as what ever may or may not have been said by parties the terms of settlement of 28th Nay 2010 which stand unchallenged and accepted clearly entitles parties ( not only the Plaintiff but also the Defendant) to judgment limited in the sum of $70,000/-,in the absence of a settlement otherwise, on the 15th June 2010, as per the terms of 28th May 2010 as reproduced at paragraph 3 above.
    
14. The Court has recorded what the parties have stated, and the Court record ought not to be changed to accommodate the "improving" recollection of parties or Counsel or on what is stated in an affidavit on "advice". If the Defendant considers the Judgment of 15th June 2010 to be a consent judgment as stated in its Amended Summons of 10th September 2010, then how can the Defendant in the same breath say that it did not consent to judgment or allegedly stated to Court that they did not consent, on 15th June 2010? The Defendant or more precisely the Defendants Counsel cannot blow hot and cold at the same time. At least when seeking discretionary relief consistency in positions of fact and law are expected from Counsels who are officers of this Court.
    
15. However as stated earlier if the Defendants Counsel has acted without instructions to settle the case or contrary to instructions then by such conduct of the Defendants Counsel, the Defendant would be seriously prejudiced, if not for paragraph 11 of the Defendants Defence, as referred to above. If that be the case then too, with no disrespect meant, it is not for the Defendants Counsel to attempt to extricate herself at the expense of the record or of the Court, such conduct being unbecoming of an officer of this Court. An honest disclosure of her failing if any, would certainly have deserved the indulgence of her opposing counsel and even the Plaintiff not to mention this Court. It may well be the case that undue pressure has been brought upon the Defendants Counsel without appreciating the success of her negotiation of the terms. In fact no better terms could have been achieved due to paragraph 11 of the Defendants own Defense! As such it is difficult for this Court to come to a finding that the Defendants Counsel on her own would have taken this course of action without reservation, as it may well be due to misguided advise as stated in her first affidavit. The Defendant should bring to its notice what it has stated at paragraph 11 of its own answer (Defense) and consider whether no better settlement in any event could have been achieved by their Counsel with or without their consent.
    
16. Whether the judgment of 15th June 2010 is a consent judgment entered on an agreement reached on that day or a judgment entered as a consequence of the terms agreed on the previous dates, especially on 28th May 2010, appears to be a moot point as no further consent is required on the 15th June 2010, to enter judgment as per the terms of 28th May 2010.
    
17. Be that as it may the Plaintiff is not going to benefit by the delay in Appeal or other proceedings either. Both parties would benefit if they re visit the settlement and agree or disagree. There would no doubt be much prejudice to the Plaintiff as he has proceeded at least for over a month on the belief that his action instituted 5 years ago has finally been settled, before it is now sought to be challenged by the current application.
    
18. However this Court cannot set aside a Judgment that it has already entered whether by consent or otherwise, as it is functus officio, or alter or change the record, especially on the alleged ground and on the fragile, contradictory and unsatisfactory evidence urged. All that the Court can do at the most is stay the execution for a limited period of time to facilitate parties to consider their options, such as further agreement in to payment by installment or re-grant or re-issue of lease as applicable etc. All ready the Plaintiff has restrained himself from taking steps to execute the judgment for over a year, as such it would be manifestly unjust to stay execution any further for a longer period, as the Defendant had ample time to reconsider their options.
    
19. If the parties could venture to settle this matter as they did, there is no reason why they cannot mutually agree on further or additional terms and stay their hand in the meantime as they have already done without the intervention of a stay by this Court.
    
20. Therefore the Defendants Amended Summons of 10th September 2010 is dismissed. Defendant to Pay the Plaintiff costs in a sum of $500/- summarily assessed in respect of this application within 21 days of this order.
    

.............................................
Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
18th October 2011.