Lal v Singh [2014] FJHC 644; HBC99.2008 (1 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURIDICTION
Case No. 99 of 2008

BETWEEN:

KAMAL LAL
of Delaivuna, Taveuni, Teacher
Plaintiff

AND:

MAIN SINGH aka MAHEND SINGH
of Lot 68 Vatoa Road, Narere, Subdivision 8 Miles, Nasinu, Taxi Driver
Defendant

Appearance: Mr Nand M - Counsel for the Plaintiff
Mr Rayawa A - Counsel for the Defendant

Date of the Judgment: 1 September 2014

INTER-LOCUTORY JUDGMENT

1. The Summons was filed by the Plaintiff on 07th January 2014 seeking the following orders:

"1. That the Plaintiff be granted leave to join the Director of Lands as an interested party.

2. That the Defendant is to pay the rental arrears or pay the rental arrears or any other premiums to Director of Lands and uplift the lease document for the property comprised in Crown Lease No. 4/16/6916.

3. That the Deputy Registrar of the High Court of Fiji or some other fit and proper person be appointed to transfer and convey in the name of the Defendant to the Plaintiff the Property comprised in Crown Lease No. 4/16/6916 being Lot No: 67 DSS 1160 situated Narere, Nasinu.

4. That the Plaintiff to pay the purchase price of $40,000 to the Deputy Registrar of the High Court of Fiji which shall be held by the High Court in trust for the Defendant.

5. That upon the Plaintiff paying to the Deputy Registrar of the High Court $40,000 the Defendant be ordered to deliver and give vacant possession of the property to the Plaintiff.

6. That the Defendant be ordered to deliver to the Plaintiff's Solicitors the Duplicate Original Copy of the Crown Lease Ref. No. 4/16/6916.

7. That the Defendant to pay the Cost of this application."

2. The Affidavit in Support dated 6/1/2014 by Vinuka Prasad Law Clerk of the Solicitors for the Plaintiff it was stated inter-alia.

2.1. On 15th January 2013 the Plaintiff had filed application seeking Orders for specific performance which is detailed in the Paragraph 1 of this judgment items 3 to 6.

2.2 The said application was proceeded before Learned Master Amaratunga (as then he was) and the Judgment was delivered on 20 March 2013 (copy Annexed marked "A").

2.3 The Learned Master concluded that the conditions precedent to the Land transfer in terms of sales and purchase agreement was the issuance of New Lease and the application was premature as such the application was struck out.

2.4 On or around 6 June 2013 the Land Department had informed the officer of the Plaintiff's Solicitors that the Lease was ready to be issued with the condition the payment of $573.74 arrears of rental to be made. (Annexure "B") and the solicitors for the Plaintiff informed the Defendant to settle the arrears of rental. (Annexure "C").

2.5 The said letter was served on the Defendant personally on 2 September 2013 by the registered bailiff Anirudh Kumar. (Annexure marked "B"). Affidavit of Service was filed on 10th December 2013 confirming the service of the said letter dated 22ndAugust 2013 (Annexure "E").

2.6 The Plaintiff stated that the Defendant failed to uplift the lease from the Lands Department. The Plaintiff had prayed the Court to issue an order for the specific performance of the agreement for the reason that the Land Department is ready to issue the lease.

2.7 The Plaintiff further alleged that the Defendant is attempting to act in bad faith and the Director of Lands to be added as an interested party to confirm to the Court the status quo of the lease and the Court to intervene to make orders for specific performance.

3. The Defendant opted not to file an Affidavit in reply and moved to file written submissions when the case was mentioned on 14 May 2014.

4. The written submissions were filed by both parties.

4.1 Submissions in opposition by the Defendant dated 14 May 2014.

4.2 The Submissions was filed by Plaintiff on 02 June 2014.

4.3 In response to the submissions filed by the Defendant 0n14 May 2014 the Plaintiff filed his submissions on 19th June 2014.

4.4 In response to the submissions filed by the Plaintiff on 02nd June 2014 the Defendant file Submission in Reply on 22nd July 2014.

Analysis and Conclusions

5. The Defendant submitted that the summons filed by the Plaintiff is an abuse of process of the Court as it attempts to relitigate an issue that has already being adjudged by the Learned Master in his Judgment delivered on 20 March 2013 (Annexure "A" to the Affidavit of Vinuka Prasad). The Defendant submitted that there was no evidence to support the summons that a registered lease been issued by the Registrar of Titles and if a registered lease is issued the Plaintiff would have annexed it to his affidavit. It was further submitted that the Judgment delivered on 20th March 2013 stands and the application by the Plaintiff is an abuse of the process of the Court.

6. In the submission of the Defendant it was also urged that the Plaintiff's application is irregular as it intends to join the Director of Lands to be an interested party to the proceedings and stated the application is against the Fundamentals of Contract Law; i.e. Principle of privity to the Contract. The terms of the contract were entered between the Plaintiff and the Defendant only. Thus a person who was not a party cannot be forced to enforce the contract or to comply with said contract. The counsel submitted the issues was discussed and approved by the Court of Appeal in the case of Kewal Investment Ltd vs Pioneer Supplies Ltd [2000] FJCA 24 ABU 007 1998s (un reported decided on 12 May 2008).

7. Before proceeding to decide on the summons I have to consider the preliminary issues raised by the Defendant's counsel:

1. As to whether there is an abuse of the process of the Court by the Defendant by making this application?

2. As to whether application to add the Director of the Lands is irregular and contrary to the terms of the contract?

8. The Plaintiff had addressed these two issues in his written submissions filed on 19 June 2014. The Plaintiff had drawn attention to the order made by Hon. Justice Wati and submitted the Plaintiff had liberty to file an application to the Court for appointment of an officer to execute the deed and the application was made by the Plaintiff. The application which was made before the Master was struck out on the finding stated in paragraph 6 of the Judgment:

"6. The condition preceding to the said transfer in accordance with the said sale and purchase agreement was the issuance of new lease. This was required since the Defendant did not have a lease at the time of execution, but only an approval notice for a lease. So till the defendant obtains a lease the transfer cannot be executed and the Court cannot intervene to execute the transfer till a new lease is issued to the Defendant. There is no evidence of such a new lease being issued to the Defendant and admittedly no such lease was issued to the Defendant, yet and this application is premature"

The Learned Master has struck out the application for the reason that it was premature as such there was no finality of the Judgment and I do not agree with the Defendant's counsel that the Judgment by the Master stands now. The present application was made by the Plaintiff on new material as such it does not amount to an abuse of the process of the Court. Accordingly, issue No.1 in the paragraph 7 of this Judgment is determined in favour of the Plaintiff.

9. I further considered the submissions made by the Plaintiff's Counsel that there was no determination by Hon. Justice Wati in her ruling as to whether there had been a lease issued or not. There was no application by the Plaintiff at that stage to join the Director of Lands as an interested party and this matter was not taken up before the learned Master too. The present application was made after obtaining information that Land Department is ready to issue the lease on payment of $573.74 (paragraph 10 of the Affidavit dated 6 January 2014 of Vinuka Prasad). The Defendant was informed by the letter dated 6 June 2013 and 22 August 2013 to uplift the lease from the Lands Department; to which the Defendant had failed to respond. The Defendant too opted not to file an Affidavit in response. All these factors establish that the present application has merits to consider, and the Defendant fails.

10. Further submissions was filed by the Defendant's Counsel and stated referring to the Annexure "A" of Vinuka Prasad's Affidavit in Support that there is no evidence to support the summons that a registered lease has been issued by the Registrar of Titles. I find there is no averment in Vinuka Prasad's Affidavit that the lease was issued. The paragraph 10 of Vinuka Prasad's Affidavit states:

"10. On or around 6th June 2013 the Lands Department informed our office that the lease was ready to be issued but that was conditional on payment of $573.74 being for rent due. I annex hereto and mark as "B" a copy of the said statement of Account from the Lands Department".

What the Plaintiff stated was the Lease being ready to uplift by the Defendant. The position taken up by the Defendant does not carry any merits and there was no lease issued at the time of filing of the application. As concluded in the preceding paragraphs I have determined there was no final decision made by the Master in this Judgment. As such the the dicta of Johnson vs. Gorewood & Co.[2000] UKHL65; (2001) 1ALL ER 481 by Lord Birmingham cited in Fiji case of Reserve Bank of Fiji vs Gallagher [2006] FCJA37 cannot be taken into consideration and Defendant fails and I further conclude there is no abuse of the process of this Court by the Plaintiff.

11. As to whether application to join the Director of Lands is irregular and contrary to the terms of the contract?

11.1 As stated in preceding paragraph 6 of this Judgment the Defendant states that the Plaintiff relies upon to support its claim against the Defendant is between the Plaintiff and the Defendant only and cited the decision of the Court of Appeal in the case of Kewal Investment Ltd vs. Pioneer Supplies Ltd Civil Appeal No. 73 of 1998(s) (unreported) decided on 12 May 2000. I find the said Judgment was a final Judgment which was appealed and it states the principles with regard to joining of the third parties to the case. As such the cited Judgment has no relevance to the present case.

11.2 The present application was made under Order 15 Rule 6 and Order 45 Rule 7 of the High Court Rules 1988. Pursuant to Rule 6(2) b. it states:

"b. Order any of the following parties to be added as a party.

(i) Any person was ought to have joined as a party or was – whose presence before the Court necessary to ensure that all matters in dispute in the cause or matter be effectively and completely adjudicated upon, or

(ii) Any person between whom and any party to the cause or matter there may exist a question or issue missing out or relating to or connected with any relief or remedy in which in the opinion of the Court it would be just and convenient to determine as between him and the party as well as between the parties to the cause of the matter.

11.3 I am satisfied that the Plaintiff by his Affidavit and the annexures establish grounds to join the Director of Lands as a party if not there will be great prejudice caused to the Plaintiff. The Director of Lands had given consent to the sales and purchase agreement and the failure of the Defendant to uplift the lease documents should be considered after the Director of Lands being joined as a party to this action.

12. Accordingly, I grant leave to the Plaintiff to join the Director of Lands as an interested party. Other orders sought by Plaintiff should be considered only after the joining of Director of Lands to the proceedings. The orders sought by the Plaintiff in the paragraphs 2, 3, 4, 5, 6 of the summons warrants substantive hearing of this matter after joining of the Director of Lands as an interested Party.

13. Orders of the Court

1. Granted leave to the Plaintiff to join the Director of Lands as an interested Party;

2. No order for Costs

Delivered at Suva this 1st Day of September 2014.

C. KOTIGALAGE
JUDGE