Devi v Kumari [2012] FJHC 1230; Civil Action 45.2006 (25 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 45/06

BETWEEN:

SALENDRA DEVI f/n Suruj Nath of Vunivau Bua,
process worker.
PLAINTIFF

AND:

PHUL KUMARI f/n Hardeo Singh of Navudi
Seaqaqa, Domestic Duties.
1st DEFENDANT

AND:

MAHARAJI f/n Madho of Togo, Lavusa Nadi,
Domestic Duties.
2nd DEFENDANT

AND:

CHANDRA BHAN MAHABIR f/n Mahabir of United
States of America.
3rd DEFENDANT.

Appearences: Mr. A Sen of Maqbool & Co for the Plaintiff
Mr. A Ram of Gibson & Co for the Defendants

RULING

This is an interrogatory application by the Defendant under Order 26 Rule 1 and Order 32 rules 1 & 2 of the High Court Rules, for an order for leave to file and serve interrogatories on the Plaintiffs, and for an order requiring the Plaintiffs to answer the interrogations. The Plaintiffs subsequent to the Defendant's application also filed a Summons under the same orders seeking leave for an order to file and serve interrogatories to the Defendants. Both parties were granted leave to file interrogatories as I considered that a party in litigation has an inherent right to ask interrogatories but whether or not each of the party was compelled to answer the interrogatories put to them was another matter. And it is this that is to be determined and to which this Court will rule. It is this Courts view that this approach is not inconsistent with Order 26 of the High Court Rules and may save time in that the Court should not be given the task of resolving the litigants deduction of evidence at this point of litigation particularly evidence which could better be resolved at the trial proper.

BACKGROUND

The facts which gave rise to this action are set out in the Statement of Claim as amended filed on the 10 October 2007. They are that on or about the 14th January 2007 the Plaintiff and the 1st Defendant entered into a "Sales and Purchase Agreement" (herein after referred to as "the agreement") in which the 1st Defendant agreed to sell to the Plaintiff a portion of land situated at Bua in Vanua Levu and described as Lot 7 on DP 3207 on CT No: 18829, for a consideration of fifty five thousand dollars ($55,000:00).

The Plaintiff, in accordance with the terms of the agreement, paid the consideration to a Solicitor in Labasa who held the money in trust pending completion of the conveyance. It is unclear however, which of the parties, the vendor or the purchaser, the Solicitor acted for in the conveyance. In any event the 1st Defendant notwithstanding the agreement conveyed the same portion of land to the 3rd Defendant for a consideration of five thousand dollars ($5,000:00), much less than the consideration in the prior agreement between the plaintiff and the 1st Defendant.

On the 3 January 2007, eleven days prior to the Plaintiff and the 1st Defendant entering into the Sales and Purchase Agreement, the 2nd Defendant lodged a caveat on the said portion of land. It appears that her interest is that of a beneficiary of the estate of one Mahabir. The caveat states:-

"......I, MAHARAJI (daughter of Madho) of Togo Lavusa Nadi Domestic Duties claiming an estate or interest as beneficiary of the Estate of MAHABIR (s/o Sukhai) deceased being the lawful wife and widow of the said Mahabir and the person entitled to the said land (CT 18829) as the beneficiary in the said Estate of Mahabir which said land was fraudulently, deceitfully transferred by deceased's Attorney, Brij Mohan to his wife Phul Kumari (daughter of Hardeo Singh) on the 24/3/99 to defeat my right and interest in the said land as beneficiary in respect of same...."

Why was the consideration reduced from $55,000:00 to $5000:00 when the land was offered to the 3rd Defendant and why was the caveat later withdrawn by the 2nd Defendant? The answer to this question held the key to the conveyance and indeed to the matter at hand. The 1st Defendant, Phul Kumari became the owner of the subject property when her husband, Brij Mohan used a power of attorney granted to him by his father Mr. Mahabir to transfer the land to her. This transfer was done without Mr. Mahabir's knowledge.

This conveyance or transfer was not discovered until after the death of Mr. Mahabir. The caveat shows that the 2nd Defendant was the lawful wife and widow of Mahabir. She was also the mother of the 3rd Defendant both of whom are beneficiaries to the estate of the late Mr. Mahabir. Unfortunately it was only after the perusal of the copy of the caveat lodged by the 2nd Defendant in the "Agreed Bundle of Documents" that the relationships between the parties became clearer.

It can be seen therefore that the transfer of the land by the 1st Defendant, Phul Kumari, to the 3rd Defendant was an attempt to correct the wrongful transfer of the land from her husband Brij Mohan to her. The 3rd Defendant is the brother of Brij Mohan. This was the reason the consideration was considerably reduced and for the caveat to be removed.
The problem is that the Plaintiff wants to enforce the sales and purchase agreement and sues the 1st Defendant seeking damages and specific performance. The statement of claim further alleges that the 3rd Defendant had the land transferred fraudulently to him by not disclosing that he was a non resident of Fiji. The 3rd defendant as part of his defence also raised the issue of the right of the Plaintiff to purchase any land in Fiji without the consent of the Minister of Lands, the Plaintiff being a resident of Australia when it entered into the agreement to purchase the land. That is both parties through interrogatories are raising the question of the legality or the right of each other to purchase the land without the consent of the Minister of Lands pursuant to Section 6 of the Land Sales Act. This is so notwithstanding that the 3rd Defendant is not a party to the contract and that he may be entitled to the land as a beneficiary.

Interrogatories

Under Order 26 a party to the proceedings may ask the Court for leave to serve the other party interrogatories, the Order states:-

1.-(1) A party to any cause or matter may apply to the Court for an order-

(a) giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter, and

(b) requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order.

(2) A copy of the proposed interrogatories must be served with the summons, or the notice under Order 25, rule 7, by which the application for such leave is made.

(3) On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matter or for saving costs; and in deciding whether to give leave the Court shall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question.

(4) A proposed interrogatory which does not relate to such a matter as is mentioned in paragraph (1) shall be disallowed notwithstanding that it might be admissible in oral cross-examination of a witness.

Interrogatory is a form of discovery by questions and its nature and purpose requires strict adherence to the letter of the words used. This is so because the answers given are evidence of facts which can be taken into account by the Court. The facts, however must be relevant to the action. The interrogating party may tender any one or more answers without the others or without the whole answer under O26 rule 7. The purpose of this requirement is to prevent the answering party from adding self serving or inadmissible material to his answers in such a way as to force the interrogating party to tender it as evidence. On the other hand a proposed interrogatory which does not relate or is irrelevant to the matter shall be disallowed notwithstanding that it might be admissible in oral cross-examination; O26 rule 1(4). The answers to interrogatories are supplied in an affidavit form which is to be provided to the interrogating party within a time specified by the Court.

Justice Lockhart in WA Pines –v- Bannerman [1980] FCA 79; (1980) 30 ALR 559 at 574 stated the four objects of interrogatories as:-

1. to obtain admissions as to facts which will support the case interrogating party.

2. to obtain admissions which will destroy or damage the case of the party interrogated.

3. interrogatories which are in the nature of a request for further and better particulars.

4. interrogatories which seek to obtain accounts from a party occupying a fiduciary position.

Answers to interrogatories against whom they are tendered does not preclude that party to call evidence which is at variance with them even if the answers take the form of admissions. This is different from admissions made in pleadings. Menzies J in Gannon –v Gannon [1971] HCA 76; (1971) 125 CLR 629 at 640 explained the difference this way:-

"For my part I am not prepared to put admission in an answer to interrogatories on the same footing as an admission in a pleading. A pleading may be amended, but an answer to an interrogatory, once delivered, cannot be withdrawn, although in a proper case, it may perhaps be possible to obtain leave to answer further. Furthermore, however and more fundamentally, pleadings determine what is in issue; answers to interrogatories do not. An answer could not do so at the time of its delivery and in my opinion, it does not do so when it is put in evidence. It is no more than evidence of a fact in issue; that is why it is admitted. I see no reason why it should be regarded as exclusive and exhaustive evidence of that fact."

The interrogatories to be determined

The first application for interrogatories was by the Defendants to the Plaintiff. The questions appears to have been asked by all of the defendants for the plaintiff to answer. The interrogatories consist of fifty three (53) questions which relate mostly to the status of the Plaintiff as a resident of Fiji. This was raised because the 1st & 2nd Defendants in its defence raised the point that the Plaintiff could not enter into a Sales & Purchase agreement to purchase land in Fiji without the consent of the Minister as required under Section 6 of the Land Sales Act. As a consequence I would only allow questions relating to the status of the Plaintiff at the time at which she entered into the Sales and Purchase agreement. Therefore the Plaintiff is to answer the following interrogatories:-

3. On 23rd March 1988 did the Plaintiff marry one Simon Leddie at Suva?

4. Was Simon Leddie and Australia Citizen and an Australian resident at the time of marriage?

5. After her marriage to Simon Leddie did the Plaintiff leave Fiji to reside in Australia?

6. If so then on what date did the Plaintiff leave Fiji?

7. Did the Plaintiff after marriage live at 38 Biggs Ave, Beachmere, Queensland, Australia?

10. Did the Plaintiff obtain a permanent residence visa from the Australian Government at any time after her marriage to Simon Leddie?

11. If so when was the permanent residence visa granted?

12. Subsequent to the visa did the Plaintiff acquire Australian Citizenship?

13. If so when did the Plaintiff acquire Australian Citizenship?

14. Having obtained citizenship did the Plaintiff apply for and obtain an Australian passport?

15. If so when did the Plaintiff obtain an Australian passport?

31. In between 1988 and 2009 did the Plaintiff at any time acquire Fiji Citizenship?

32. If so on which date did the Plaintiff acquire Fiji Citizenship?

34. Between March 1988 and January 2006 did the Plaintiff ever reside in Fiji?

35. If so then for what period or periods did the Plaintiff reside in Fiji?

36. In or about January 2006 did the Plaintiff travel to Fiji?

37. On what date did the Plaintiff arrive in Fiji?

38. Did the Plaintiff travel to Fiji using her Australian passport and what was the number of the passport used?

40. In January 2006 what was the Plaintiff's Australian residential address?

45. When did the Plaintiff leave Fiji after executing the Sale and Purchase Agreement on 14th January 2006?

46. Did the Plaintiff instruct the law firm of Sarju Prasad on 14th January 2009 that:-

(a) She was a Fiji Citizen and/or resident and that

(b) She was Resident at Vunivau, Bua?

(c) Her occupation was a "process worker"?

47. On or about the 14th day of January 2006 where was the Plaintiff ordinarily resident and what was her occupation?

The other interrogatories not included in the above are considered not to be relevant to the issue and therefore should not be answered by the Plaintiff.

The second application was by the Plaintiff against the 1st and 3rd Defendants. The interrogatories consist of 32 questions to be answered by the 3rd Defendant and three to be answered by the 1st Defendant. The interrogatories required to be answered by the 3rd Defendant relates mostly to his status as a resident or non resident of Fiji at the time at which the land was transferred to him by the 1st Defendant. It is alleged that he was a resident of the USA at the time. In order to determine whether the 3rd Defendant should answer the interrogatories it is prudent to first determine the cause of action against him and the remedy available to the Plaintiff against him. The action against the 3rd Defendant is based on fraud the particulars of which relates to his residential status. Given however that there is no privity of contract between the Plaintiff and the 3rd Defendant and that the only remedy available to the Plaintiff is damages for breach of contract against the 1st Defendant, I am unable to see the relevance of the interrogatories to the Plaintiff. This is reinforced by the fact that the transfer to him by the 1st Defendant was a way of correcting the illegal transfer of the land to the 1st Defendant in the first place. Secondly the caveat protecting the rights of 2nd & 3rd Defendants as beneficiary to the estate of Mahabir pre-dates the sales and purchase agreement between the Plaintiff and the 1st Defendant. In other words the answers to the questions does not provide any real value to the material facts directly in issue which is necessary for the Plaintiff to prove its case. That is, the answers to the questions would only assist the Plaintiffs case indirectly, the Plaintiff's direct cause of action is a breach of contract by the 1st Defendant. Making the 3rd Defendant answer the questions only clouds the issue necessary to determine the matter. The use of interrogatives was restricted this way by Smith LJ in Kennedy v Dodson [1895] UKLawRpCh 6; (1895) 1 Ch 334 at 341 where he stated:-

"In my opinion, the legitimate use, and the only legitimate use, of interrogatories is to obtain from the party interrogated admissions of facts which it is necessary for the party interrogating to prove in order to prove his case; and if the party interrogating goes further, and seeks by his interrogatories to get from the other party matters which is not incumbent on him to prove,, although such matters may indirectly assist his case, the interrogatories ought not be admitted."

There are contrary views to the above limitation in that the general perception is that "pretty nearly anything that is material may now be asked" as expressed by Lord Esher MR in Marriot –v Chamberlain (1886) 17 QBD at 173. However the overriding principle still remains that the questions must be relevant to the issue to be determined. Indeed the answer to the interrogatories required of the 3rd Defendant could not support the claim of breach of contract against the 1st Defendant by the Plaintiff. Further, in my view, the alleged non disclosure of the residential status of the 3rd Defendant is not a fraudulent act designed to deprive the Plaintiff of her rights under the sales and purchase agreement simply because the 3rd Defendant's right to the property given the relationship between him and the 1st Defendant pre-dates the right of the plaintiff.

In expressing the view taken above it should be noted that the door has not entirely closed for the Plaintiff, a denial of interrogatories does not prevent a party from obtaining those facts which he/she thinks is relevant to his/her cause of action through oral cross examination. Most of the interrogatories required of the 3rd Defendant are matters peripheral and could be better obtained through oral cross examination.

There are three interrogatories required of the 1st Defendant by the Plaintiff. These interrogatories in my view are directly relevant to the Plaintiff's case and I would allow them. The interrogatories are:-

1. Does the 1st defendant admit that a sales and purchase agreement was done at the office of Sarju Prasad Esq. on 14th day of January 2006 and she executed the same to sell her Certificate of Title No. 18829 to the plaintiff in the sum of $55,500.00?
   
2. What was the price agreed by the 1st defendant to transfer to the 3rd defendant her interest of Certificate of Title No.18829?
   
3. Does the 1st defendant admit that she later went to the office of Messrs Kohli & Singh to transfer the said Certificate of Title No. 18829 to the 3rd defendant?
   

Conclusion

In the circumstances I am satisfied that leave should be granted to the Defendants to administer the proposed interrogatories as enumerated above more specifically interrogatories 3 to 7, 10 to15, 31,32,34 to 38, 40 and 45 to 47 are to be answered by the Plaintiff.

I am further satisfied that leave should be granted to the Plaintiff to administer the proposed interrogatories enumerated above more specifically questions number (i), (ii) and (iii) for answer by the 1st Defendant.

That both parties are to provide the answers to the interrogatories in an affidavit form under oath to be filed into Court and served to the interrogating party within 21 days.

All the other interrogatories are disallowed as reasoned above. Costs to be cost in the cause.

Dated this 25th day of July 2012

H A Robinson
Master, High Court, LABASA