Sugar Cane Growers Fund v Intaz [2012] FJHC 892; Civil Action 132.2010 (24 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. 132 of 2010

BETWEEN:

SUGAR CANE GROWERS FUND
a statutory body established by the Sugar Cane Growers Fund Act, Cap 207, Laws of Fiji.
Plaintiff

AND:

MOHAMMED INTAZ f/n
Mohammed Jaffar of Labasa, Farmer
Defendant

Before : Master Anare Tuilevuka.
Solicitors : Krishna & Company for the Plaintiff.
N/A
Date of Ruling : Friday 24 February 2012.

RULING

[1]. The SCGF is seeking to recover from Mohammed Intaz monies that it had loaned to him. It has filed a writ of summons and statement of claim against Intaz in pursuit of these monies.

[2]. It is alleged that Intaz had borrowed the sum of $46,000 from SCGF on 17 April 2003. That loan was secured by a mortgage over Intaz's farm. Under SCGF's priority lending scheme, Intaz took further loans from SCGF.

[3]. SCGF advanced the monies on the understanding Intaz was going to apply them towards developing his farm. That farm is on land situated at iTLTB Reference No. 4/9/4937, being iTaukei Lease No. 16797, Vunimako Sub-Division Lot 14 as shown on Lot 5 on Plan M 2752 in the province of Macuata containing areas of 59 acres, 3 roods and 16 perches. The loans were made on terms and conditions set out in the mortgage and in the crop lien. The particulars of the mortgage and the particulars of the priority loans are set out in the statement of claim.

[4]. However, it appears that Intaz absconded to New Zealand as soon after he received the monies from SCGF.

[5]. In total, SCGF claims $55,319.91 owing as at 30 May 2010. This figure comprises the principle balance owing of $50,513.58 plus various interests loaded onto that sum which adds up to $4,806.33.

[6]. Initially, SCGF had served a Notice of Demand at Intaz's last known address. However, Intaz has failed or neglected to pay the demand sum owing. This prompted Krishna & Company to file an ex-parte summons seeking leave to serve the writ and statement of claim by way of prepaid post to P.O Box 2110 Labasa and by leaving a copy with Intaz's son, one Mohammed Ashfaak of Labasa. I had granted leave on this application after considering the depositions in the supporting affidavit of Nilesh Karan, the Credit Officer of SCGF. He deposes that when Intaz filed his loan application and particulars thereof with SCGF, Intaz had stated "Vunimako, Labasa" as his place of residence. Karan further deposes that this address was also confirmed by SCGF personnel who had carried out site visits in due diligence.

[7]. Presently the subject farm has been left uncultivated and unoccupied for more than twelve months as confirmed by a letter from iTLTB. Intaz's immediate family who live around that area also confirm that he now resides somewhere in New Zealand - although his exact whereabouts in New Zealand is not known to anyone.

[8]. An affidavit of service has since been filed confirming service by letter dated 16 July 2010 and posted by prepaid registered post on the same date. The case then proceeded to formal proof upon the filing of that affidavit of service.

[9]. At formal proof, Mr. Krishna handed up in Court a bundle of documents containing the following:

1. Mortgaged Registered on 17th April 2003

• (i) Mortgage Loan Statement
  

2. Priority Loan Agreement dated 8th August, 2003
   • (i) Priority Loan Transactions Statement
   • (ii) Priority Loan Statements
     
3. Priority Loan Agreement dated 8th December 2003
   1. Priority Loan Transactions Statement
   2. Priority Loan Statements
      
4. Priority Loan Agreement dated 7th July 2004
   1. Priority Loan Transactions Statement
   2. Priority Loan Statements
      
5. Priority Loan Agreement dated 13th December 2004
   1. Priority Loan Transactions Statement
   2. Priority Loan Statements
      
6. Priority Loan Agreement dated 26th June, 2005
   1. Priority Loan Transactions Statement
   2. Priority Loan Statements
      

[10]. Nilesh Karan also gave sworn evidence. He explains that SCGF cannot now realize its security through the mortgage as the lease in question has since expired and has now reverted to the iTLTB. The documents in the Bundle were tendered one by one through him. He seeks judgment as follows:

Judgment Sums Sought	Particulars for which Judgment Sum Sought
$55,391.91	Mortgage document
$ 283.63	Priority loan dated 8th August 2003
$ 24.83	Priority Loan dated 8the December 2003
$ 1,282.25	Priory Loan dated 7th July 2004
$ 1,312.75	Priority Loan dated 13th December 2004
$ 254.06	Priority Loan dated 20th June 2005
Interest on mortgage	8% per annum
Interest on priority loans	7% based on paragraph 3 of the statement of claim
Costs	Indemnity basis

[11]. After considering all, I grant Order in Terms with costs in the sum of $850-00 (eight hundred and fifty dollars only).

................................
Anare Tuilevuka
Master

At Lautoka.
24 February 2012.