Kumar v Prasad [2012] FJHC 1107; Civil Action473.2006 (16 May 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 473 of 2006

BETWEEN:

RAMESH KUMAR
Plaintiff

AND:

DIVENDRA PRASAD
First defendant

SIMON KOFE
Second defendant

ABDUL HAKIM
Third defendant

Appearances: Ms Prem Narayan for the plaintiff
Ms S. Devan for the first and second defendants
Third defendant in person

Date of hearing: 8th December, 2011

Closing submissions of the first and second defendant filed on 10 January,2012
Closing submissions of the third defendant filed on 22 December,2011

JUDGMENT

1. By writ and statement of claim, the plaintiff, Ramesh Kumar claims damages in a sum of $ 13,000 from Divendra Prasad, the first defendant, Simon Kofe, the second defendant for breach of duty and Abdul Hakim, the third defendant for unjustly enriching himself.
   

The dispute originates from a sale and purchase agreement entered into between the plaintiff and third defendant in respect of a vehicle bearing registration number DT 143.The plaintiff alleges that the contract price included the sale of taxi permit no LT 1303 .The vehicle was transferred in his name .The plaintiff's grievance is that the taxi permit in respect of the vehicle was not transferred to him.

The statement of claim provides that the third defendant engaged the second defendant to draft a sale and purchase agreement, which was provided to the plaintiff by the second defendant. The second defendant, after amending an error pointed out by the plaintiff, had printed copies of the agreement, which was then, executed by the parties. The statement of claim proceeds to state that the plaintiff was not advised by the second defendant, who was employed in the law firm of the first defendant as a solicitor, that the selling of a taxi permit was illegal and that the sale and purchase agreement was unenforceable in terms of section 11 of the Land Transport (Public Service Vehicles Regulations) 2000.It is alleged the second defendant informed the plaintiff that the transfer documents would be lodged with the Land Transport Authority (LTA). It is further alleged that the second defendant as a solicitor, owed a duty of care to the plaintiff to ensure that transfer documents left in his possession were released to the plaintiff and not to the third defendant, as he had done.

The plaintiff claims that the vehicle was valued at $ 4000 and the loss he has suffered as a result of the second defendant's breach of duty was a sum of $ 13,000.As regards the third defendant, the claim is that he has unjustly enriched himself in the sum of $ 13,000 by failing to lodge the transfer documents with the LTA.

The first and second defendant, in their joint statement of defence, denied that the agreement was drafted at their office or that any discussions, communications or negotiations took place between the second defendant and the plaintiff .The second defendant, in his affidavit in answer to the plaintiff's interrogatories,(since he had migrated) denied that the agreement was drafted by him, and averred that the parties executed the agreement in his office and he only witnessed their signatures.

2. The determination
   

I will first examine the terms of the sale and purchase agreement entered into by the respective parties, as produced by the plaintiff.

The recitals and operative clause of the agreement provides unequivocally that the contract price is for the vehicle in a sum of $ 17,000. The agreement goes on to say that upon payment of the contract price, the third defendant agrees to "Lodge proper application with the LTA for the transfer of taxi permit no LT 3103" and transfer the vehicle registration to the plaintiff.
The plaintiff, in cross-examination, admitted that the agreement does not contemplate the sale of a taxi permit nor any obligation on the second defendant to lodge the application for the transfer of a taxi permit. The plaintiff asserted that the second defendant had agreed to do so. I do not accept this assertion.

The obligation lay on the third defendant to lodge a proper application with the LTA for the transfer of the taxi permit. The third defendant, who appeared in person, in his cross-examination of the plaintiff took up the point that section 11 of the Land Transport (Public Service Vehicles Regulations) 2000 enables the transfer of a taxi permit to be made by the LTA, upon an application made on specified grounds, which includes the permanent incapacity of the holder or if he is migrating. The third defendant produced a copy of the prescribed application form to obtain a taxi permit, which sets out 18 "BASIC REQUIREMENTS" to be met.

It transpired the plaintiff was an insurance agent and a taxi proprietor. He had obtained a taxi permit without the assistance of a lawyer on an earlier occasion. He was in the know of the process by which a taxi permit could be obtained. Accordingly, his assertion that he did not understand the implications of section 11 of the Land Transport (Public Service Vehicles Regulations) is totally unfounded.

The first defendant, in his evidence, stated that his office had no record of the third defendant, as a client, and that if the agreement was prepared in his office, it would have been endorsed with his firm's name and logo. His evidence was consistent with the second defendant's affidavit and the agreement, which provides that the signatures of both parties were witnessed by the second defendant. The respective jurat clauses provides " the contents hereof had been first read over and explained..in the English language and he appeared fully to understand the meaning and effect thereof ".

The plaintiff stated he had not paid legal fees to the second defendant. This was confirmed by the first defendant . The first defendant asserted that since his firm had not received a retainer or fee from either party, there was no requirement to explain the contents of the document. I do not accept this proposition, which echoes the long laid to rest notion that since there is no liability in contract there can be none in tort. Although a solicitor's duty is primarily owed to a client in contract, the existence of that duty does not necessarily negate a duty of care owed to a client and a third party in tort. I need not go further into that aspect of the law which has been extended since the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd[1963] UKHL 4; , (1963) 2 All ER 575, as I have found that the second defendant was not negligent.

I find the plaintiff's evidence unsatisfactory. Most of his evidence was contradicted in cross-examination .The plaintiff's case in my view,depicts an opportunistic distortion of facts in order to make this claim.

The claim against the first and second defendant falls way. This leaves the claim against the third defendant, which also fails because the evidence discloses that he had lodged the papers for the transfer of the permit.

3. Orders
   

I dismiss the plaintiff's action with costs summarily assessed in a sum of $ 2500 to be paid by the plaintiff to the first, second and third defendants.

16th May, 2012

A.L.B.Brito- Mutunayagam
Judge