Lal v Wati [2014] FJHC 894; Civil Action 18.2012 (5 December 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION
Civil Action No. 18 of 2012

BETWEEN:

NAND LAL
Plaintiff

AND:

SANTA WATI
First Defendant

AND:

SHASIN LATA
Second Defendant

BEFORE: Hon. Justice K. Kumar

COUNSEL: Mr. A. Senfor the Plaintiff
Mr.S. Sharma and Mr. J. Singh for the Defendant

DATE OF HEARING: 25 and 26 July 2013
DATE OF JUDGMENT: 5 December 2014

JUDGMENT

1.0 Introduction

1.1 On 23 April 2012, Plaintiff filed Statement of Claim seeking following relief against the Defendants.

"(i) An injunction restraining the defendants either by themselves or through their servants or agents from entering into any part of the land occupied by the plaintiff as his residential dwelling and any part of the land occupied by the plaintiff as his rice plantation on CT No. 27109.

(ii) That the plaintiff be entitled to maintained the caveat on the said property.

(iii) An injunction restraining the defendant either through her servant, agent or howsoever from either transferring, charging or disposing the said Certificate of Title No. 27109.

(iv) Order for specific performance direction the 1stdefendant to execute the transfer for ½ acre of CT No. 27109.

(v) General Damages.

(vi) Punitive Damages.

(vii) Interests.

(viii) Costs of this action on indemnity basis".

1.2 The Defendant filed Statement of Defence opposing the relief sought by the Plaintiff in his Statement of Claim.

1.3 On 10 June 2013, Application was filed by Defendant by Notice of Motion dated 20 February 2013 for Plaintiff's Counsel to bedisqualified from appearing for the Plaintiff and Plaintiff filed Application for restrainingOrders against the Defendant by Summons dated 5 March 2013 respectively were listed for hearing.

1.4 From the perusal of the Court file it was revealed that this action was fraught with various Interlocutory Applications which delayed the trial of substantive matter.

1.5 I then informed Counsel for both parties that Court is prepared to assign trial date of this matter in the following month and also expressed Court's disappointment regarding the delay caused in having the substantive matter determined in particular where one of the parties is quite elderly.

1.6 After this matter was stood down for about ten (10) minutes both Counsel informed the Court that parties intended to withdraw the Application before the Court and as such they sought Courts leave to withdraw the Application filed by Plaintiff and Defendant via Summons dated 5 March 2013 and Notice of Motion dated 20 February 2013 respectively.

1.7 Accordingly, both Applications were dismissed and stuck out with no order to as to costs.

1.8 I then enquired with Plaintiff's Counsel as to whether leave to issue and serve the Writ of Summons on the 2nd Defendant was obtained as she is residing overseas as appearsfrom the heading.

1.9 At this point, Counsel for the Plaintiff sought leave to discontinue proceedings against the 2ndDefendant and with consent of Defendant's Counsel this action against the 2nd Defendant was discontinued.

1.10 The substantive matter was then adjourned to 25 and 26 July 2013 for trial.

2.0 Undisputed Fact

2.1 Santa Wati and her husband BisunDeo jointly owned all that property known as Lot 3 on Deposited Plan No. 5800 in the District of Dreketi in the Island of Vanua Levu containing 7317 square metres and described in Certificate of Title No. 27109 (hereinafter referred to as "the property").

2.2 BisunDeo, the husband of Santa Wati died on 19 June 2001 and pursuant to his last Will and Testament of 27 April2000 (the Will) Santa Wati was appointed as sole

Executrix and Trustee of BisunDeo'sEstate and the said Santa Watiwas also named as the sole beneficiary of the Estate of BisunDeo.

2.3 Probate in respect to Estate of BisunDeo was granted on 17 October 2004 and Santa Wati caused Transmission by Death to be registered against the title to the property.

2.4 For the sake of clarity Santa Wati in her personal capacity and as Executrix and Trustee of Estate of BisunDeo will be called the Defendant.

2.5 Plaintiff is nephew of the Defendant.

2.6 Since 2005,Plaintiff and his family have been residing on part the property and have constructed a residential dwelling.

3.0 Plaintiff's Case

3.1 In the Statement of Claim Plaintiff alleges that:

(i) Sometimes in 2005, Defendant orally agreed to sell ½ acre of the land subject to the property to Plaintiff for $1,000.00 and requested Plaintiff to move onto the property.

(ii) Plaintiff and his family are occupying the half acre land.

(iii) Plaintiff constructed a two bedroom house with amenities and a shop adjacent to his house.

(iv) Plaintiff and his family are in occupation of the said half acre land.

(v) Plaintiff had to engage a surveyor to subdivide the property to enable transfer of said ½ acre land to him.

(vi) Sometimes in December 2011, Plaintiff discovered that Defendant was intending to sell the property and move to New Zealand.

(vii) On or about 9 December 2012, Plaintiff placed a caveat against the title to the property.

(viii) On 18 April 2012, Defendant served notice on Plaintiff for Plaintiff to cease operating business and deliver vacant possession of part of the property occupied by Plaintiff.

4.0 Defendant's Case

4.1 Defendant in her Statement of Defence states that:

(i) Defendant at Plaintiff's request permitted Plaintiff to temporarily occupy the property until Plaintiff 's children are educated.

(ii) $400.00 paid to Plaintiff to Defendant was a gift for allowing Plaintiff to reside on her property and not part of consideration for transfer as stated in the acknowledgement of receipt of the sum of $400.00.

(iii) Plaintiff constructed his residential building without Defendant's approval or consent.

4.2 Defendant states that she was not aware of the nature of the document signed by her when she acknowledged receipt of $400.00 and she further states that she was induced by the Plaintiff to accept $400.00 as a gift.

5.0 Issues for Determination

5.1 As pointed out by Counsel for the Plaintiff the issues that needs to be determined is whether there was an Agreement between Plaintiff and Defendant for Defendant to transfer ½ acre of the property occupied by the Plaintiff(hereinafter referred to as "the subject land")to the Plaintiff).

5.2 Other issues that arise from the pleadings, evidence and Submissions filed by the parties are:

(i) Whether Defendant can rely on plea of non-east factum.

(ii) Whether there has been sufficient compliance with provision in s59 of the Indemnity, Guarantee and Bailment Act (Cap 232).

(iii) Whether parole evidence can be admitted to prove existence of and terms of the contract between the parties.

5.3 Plaintiff gave evidence himself and called three witnesses.

5.4 Plaintiff gave evidence that:

(i) He is 44 years old, is married with 2 children and resides at Basakalave.

(ii) He did not attend school.

(iii) Defendant is his aunt(Plaintiff's mother's sister).

(iv) Some 13 years ago he started cultivating five (5) acres of the property on a share farming arrangement whereby he gave one third of the crops to the Defendant and kept two thirds of the crops as his share.

(v) Some four years after he started cultivating part of Defendant's property and after his uncle passed away he at the request of the Defendant and assurance from the Defendant that she will give subject land to the Plaintiff, Plaintiff moved onto the property with his wife and children.

(vi) He dismantled his house on his parents property situated one mile away from the property and used the materials to build his house on the subject land.

(vii) Prior to building the house he had to clear the subject land of bushes and plough to level the subject land.

(viii) Building was of corrugated iron and timber with toilet block being made of concrete.

(ix) Prior to building the house he obtained Defendant's consent and consent of statutory authorities.

(x) Defendant has one adopted daughter and two sons.

(xi) When Plaintiff moved onto the subject land one son namely Sanjay Charan Deo was staying with Defendant and the other son had gone to New Zealand with her adopted daughter.

(xii) After Plaintiff moved onto the subject land Sanjay CharanDeo had gone to New Zealand for a year.

(xiii) Plaintiff also assisted Defendant to cultivate another five (5) acres of land in addition to five (5) acres he was cultivating on share farming arrangement.

(xiv) Plaintiff assisted the Defendant in cultivating the whole property as he had the tractor and bullocks and Defendant did not have any farm implement.

(xv) Defendant would visit Plaintiff's place and at times Plaintiff's family would cook for her.

(xvi) Plaintiff extended his house on the subject land and current structure consists of two bedrooms, one dining room, kitchen, small shop and veranda.

(xvii) The current structure on the subject land has been there for nine years and he has been operating the shop for nine (9) years.

(xviii) He obtained consent from Health Department and Defendant to run the shop.

(xix) Defendant did not object to him running the shop.

(xx) Plaintiff planted breadfruit tree, coconut plant, banana tree, vegetables and flowers on the subject land.

(xxi) Plaintiff cultivated Defendant's land until the year 2012.

(xxii) Currently Defendant is not in talking terms with him.

(xxiii)Defendant asked for $1,000.00 as consideration for transfer of subject land to Plaintiff.

(xxiv)Plaintiff paid $600.00 of $1,000.00 at Defendant's home.

(xxv) Balance of $400.00 was paid at Messrs Kohli and Singh's office.

(xxvi) He was asked by Defendant to pay money for the subject land and told him to go to Mr. Anil Kohli.

(xxvii)He did not know Mr. Ami Kohli or saw him before.

(xxviii)He did not have any prior dealing with Mr.Kohli.

(xxix) On 18 November 2008, at Messrs Kohliand Singh (hereinafter referred to as "the Firm") Plaintiff paid $400.00 to the Firm for fees and $400.00 to Santa Wati.

(xxx) Defendant took $400.00 and signed acknowledgement of receipt (Exhibit P3).

(xxxi) Plaintiff confirmed that acknowledgement of receipt (Exhibit P3) was prepared by the lawyers and signed by the Defendant.

(xxxii) He went to the Firm's office with Defendant and Defendant's son Sanjay.

(xxxiii)Defendant was attended to by Mr.Kohli who then instructed his employee (male) to take instructions.

(xxxiv)Defendant gave instructions to the Firm to prepare documents to transfer the subject land to Plaintiff.

(xxxv) Defendant gave instructions that solicitor costs was to be paid by me.

(xxxvi)Instruction given by Defendant was recorded.

(xxxvii) Initially Plaintiff denied that he signed the instructions to the Firm but when he was shown Exhibit P4 he confirmed his signature was on the instructions sheet and verified his and Defendant's signature.

(xxxviii) Defendant permitted him to have the property surveyed to allocate subject land to Plaintiff but later refused to transfer subject land to Plaintiff.

(xxxix)Reason for Defendant's refusal was her daughter who wanted to sell the property.

(xxxl) He is still ready and willing to have the property surveyed and have the subject land transferred to him and pay for the costs of subdivision.

(xli) Value of structure constructed by him on the subject land is between $30,000 to $35,000.

(xlii) He would not have constructed the house if he knew Defendant would change her mind.

(xliii) He also instituted proceedings in Agricultural Tribunal for Tenancy over FIVE acres of land cultivated by him.

5.5 During cross examination Plaintiff:

(i) Maintained that he cultivated 5 acres of the property on share farming arrangement and assisted Defendant in cultivating other parts of the property.

(ii) Maintained that in 2005 he was asked by the Defendant to move onto subject land which Defendant agreed to sell to the Plaintiff.

(iii) Maintained that the sum of $400.00 paid to Defendant on 19 November 2008 was for transfer of the subject land.

(iv) Denied suggestion that he moved onto the subject land because of the difficulty his children were facing going to school because of a creek between his parents property and Defendant's property.

(v) Stated that he has one son and one daughter who at date of trial were 19 years and 20 years old respectively.

(vi) Stated that there is a permanent bridge over the creek.

(vii) Maintained that he constructed his house on subject land without building plan and he only had plan drawn after Macuata Rural Local Authority required it for purpose of business licence.

(viii) Maintained that Defendant consented to construction of his house and extension.

(ix) Maintained that on 19 November 2008, Defendant spoke to the Lawyer and she gave instruction for transfer of subject land to the Plaintiff.

(x) Denied that $400.00 paid was a gift to show his appreciation as Defendant's daughter in law gave birth.

(xi) He is aware that prior to him lodging caveat Defendant was in the process of transferring the property to her son Sanjay Charan Deo.

(xii) Maintained that subject land was indentified to him by the Defendant.

5.6 Plaintiff's second witness was Kamal Chand, Senior Law Clerk at the Firm.

5.7 Mr. Chand during examination in chief gave evidence that:

(i) He has been employed by the Firm for 20 years.

(ii) Santa Wati was a client of the Firm since 2003 when the Firm obtained probate in respect to her late husband's estate.

(iii) In 2005 the Firm attended to registration of Transmission by Death against the title to the property (one undivided half share) on behalf of Santa Wati.

(iv) No other property belonged to BissunDeo and value of $3,000.00 was stated in the probate was value of his property.

(v) In 2008 Santa Wati came to the Firm's office with someone.

(vi) He did not know Nand Lal and the Firm did not do any work for Nand Lal.

(vii) He has copy of the original instructions which is identical to photocopy (Exhibit P4).

(viii) Instruction was given by Santa Wati and recorded by him.

(ix) After the instruction was recorded it was signed by Santa Wati and Nand Lal and witnessed by him.

(x) Nand Lal told him to prepare the acknowledgement and stated that purchase price is $1,000.00, he paid $600.00 and $400.00 will be paid today.

(xi) Santa Wati's son was present on 19 November 2008 at the Firms office with Santa Wati.

(xii) Acknowledgement of receipt (Exhibit P3) was explained to Santa Wati who agreed that $400.00 was for payment for half acre residential block.

(xiii) ExhibitsP3 and P4 were both signed on 19 November 2008 and he put 18 November 2008 on Exhibit p3 by mistake.

(xiv) On 19 November 2008 NandLal paid $300.00 as legal fees or stated as Exhibit D1.

(xv) As per instruction Sale and Purchase Agreement was prepared and he called the client but they did not turn up.

(xvi) Only Nand Lal turned up.

(xvii)When documents (Exhibit P3 and P4) were signed no threat or force was placed on Santa Wati and he did not hear force or threat being applied on Santa Wati or did not force Santa to sign the document.

(xviii) Santa Wati looked normal and he did not have any reason to cheat or deceive Santa Wati.

(xix) He had no reason to favour Nand Lal as he did not know Nand Lal.

(xx) Santa Wati did not complain about him to Mr Kohli and did not lodge complaint with Chief Registrar but lodged complaint on 6 April 2012 to Prime Minister.

(xxi) On 25 May 2011, Santa Wati called into the Firm's office with her daughter Sashi Lata to give instructions to transfer whole property to Santa Wati's son Sanjay for consideration sum of $5,000.00.

(xxii) Transfer was not completed.

(xxiii) From 19 November 2008, the firm has not done any work for Nand Lal.

5.8 During cross examination Mr Chand:

(i) Stated he worked as a law clerk for twenty (20) years and worked for the Firm for eighteen (18) years.

(ii) Maintained that on 19 November 2008 Plaintiff and Defendant went to the Firm's office and gave instructions for transfer of half acre of the property by the Defendant to the Plaintiff. Both parties signed the instruction to prepare Sale and Purchase Agreement and Plaintiff paid $400.00 to Defendant as consideration for transfer of the subject land to the Plaintiff which was acknowledged by Santa Wati in writing.

(iii) Denied suggestion that he informed Defendants that $400.00 was paid to her by Plaintiff was a gift.

(iv) Could not recall whether Mr Kohli was in the office or not on that day or spoke to the parties.

(v) Stated that prior to 2012 it was the firms practice to act for both parties to a conveying transaction.

(vi) From 2012 this practice changed on the instruction of Mr Kohli and since 2012 the Firm only acts for both parties to a conveyancing transaction with consent of both parties.

(vii) In 2008, he referred the instructions to Mr Kohli and Mr Kohli asked him to prepare the documents and call both parties into the Firm's office.

(viii) In 2011, the Firm attended Defendant's instructions to transfer the whole property to her son Sanjay CharanDeo.

(ix) In 2011, instruction was taken by Mr.Kohli.

(x) It is the Firm's practice for law clerks to take instructions for sale and purchase of property as and when directed by Mr.Kohli if he is in office and to take instruction in absence of Mr.Kohli which is referred to him when he return to the office.

5.9 Rest of the cross examination related to the procedure for registration of transfer which is not directly related to the issues in this proceedings.

5.10 During re-examination Mr Chand stated that:

(i) He did not see anything wrong in law clerks taking instruction or purchase price being exchanged prior to settlement.

(ii) If parties did not agree for one lawyer to carry out the transfer then he will direct one party to another lawyer.

(iii) In respect to transaction subject to this proceeding the Defendant was their main client.

5.11 Plaintiff's next witness was his mother, PrabhaWati, of Balabala, Dreketi. Plaintiff's mother (hereafter referred to as "Prabha").

5.12 During examination in chief Prabha stated that:

(i) Plaintiff was her son and was staying on her property until such time Plaintiff moved onto Defendant's property.

(ii) The property belonged to her father and he gave the property to the Defendant.

(iii) There is a creek between her property and the road which is served by a bridge and is accessible in all weather condition.

(iv) Plaintiff came onto the property after death of Defendant's husband.

(v) Defendant agreed to give subject land to Plaintiff and Plaintiff was also cultivating part of Defendant's property by growing rice on one third and two thirds share basis.

(vi) Defendant told her about the arrangement when she asked Plaintiff to cultivate her property and for Plaintiff to move into the subject land.

(vii) The relationship between Plaintiff and Defendant prior to Defendant moving onto the subject land was very good.

(viii) Until March 2012, she was in talking terms with the Defendant (her sister) and the day before Defendant was going overseas in March 2012 Defendant and her had two basins of kava.

(ix) Prior to that the Defendant and she would have kava two to three days in a week.

(x) Plaintiff also joined them in the kava session and would call them in his shop to drink kava.

5.13 During cross examination Prabha stated:

(i) His property and Defendant's property was on either side of a creek and there is another property between her property and Defendant's property.

(ii) It takes about 10 minutes for her to walk to the main road from her property and would take a younger person less than 10 minutes.

(iii) At time of Defendants' husband's death Defendant had diabetes and pressure and was not going to the farm.

(iv) Plaintiff assisted Defendant's husband cultivate the property.

(v) Disagreed with suggestion that Defendant did not say to anyone that she will give subject land to Plaintiff.

5.14 In re-examination she stated that:

(i) Defendant was really committed to giving the subject land to Plaintiff. Defendant stated to her that she was a woman who would not change.

(ii) The road from her property to main road was gravel road and accessible on foot in all weather conditions and road was accessible to vehicles in all weather conditions and during really bad weather, only four wheel vehicles could go through.

5.15 Plaintiff next witness was Rohit Narayan of Basakalave Dreketi, Digger operator.

5.16 Mr Narayan during examination in chief stated:

(i) He resides in the same settlement as Plaintiff and Defendant.

(ii) Has known Plaintiff and Defendant for five (5) to six (6) years.

(iii) He does not have any enemity with the Defendant.

(iv) He worked for Plaintiff in cultivating and harvesting rice and used Plaintiff's tractor to plough the land cultivated by Plaintiff on share farming basis.

(v) Plaintiff cultivated five to six acres of the property.

(vi) Plaintiff's house is a permanent structure and subject land is fenced.

(vii) When he was working on the property at sometimes he would drink kava with Defendant sometimes.

(viii) Distance between Plaintiff and Defendant's house is about 100 metres.

(ix) Defendant told him that she sold the subject land to the Plaintiff.

(x) He did not know who built the house occupied by Plaintiff.

5.17 During cross examination Narayan

(i) Maintained that Defendant told him that she sold subject land to Plaintiff.

(ii) He worked for Plaintiff for four and a half years and during that period he sometimes had kava with Defendant.

(iii) Defendant was nice and understanding woman.

(iv) Plaintiff paid him for work done by him for Plaintiff.

5.18 In re-examination Mr Narayan stated that he told court what he knew.

5.19 Defendant gave evidence herself and called two other witnesses.

5.20 Defendant during her evidence in chief stated:

(i) She went to school upto class two and is unable to read Hindi or English and signs by putting her thumb print.

(ii) She owns the property which is located next to the main road.

(iii) Plaintiff had been residing on the subject land for seven years and prior to that he was residing on his mother's land.

(iv) Plaintiff came to reside on the subject land as a resultof a request by Plaintiff to Defendant for Plaintiff to build a house and to reside on the property until such time his children are educated.

(v) Plaintiff initially constructed a two bedroom corrugated iron and timber house which he later extended.

(vi) The extension to Plaintiff's house was without her consent.

(vii) She is aware that Plaintiff runs a shop from where Plaintiff is residing.

(viii) She did not give consent for Plaintiff to run the shop.

(ix) Prabha Wati is staying on her land which is quite big and has five houses on her land which are occupied by Prabha Wati and her children.

(x) She did not tell Prabha Wati or Rohit Narayan and that she will be selling the subject land to Plaintiff.

(xi) She was not aware of the value of the subject land in 2008 and she would not sell the subject land.

(xii) After her husband's death property was cultivated by her children Sanjay CharanDeo and Ranjay Charan Deo.

(xiii) Sanjay Charan Deo is residing with her and other son resides overseas.

(xiv) In November 2008 she went to the Firm's office after she was asked by Plaintiff who told her that he would give $400.00 to her.

(xv) Her son Sanjay CharanDeo accompanied her to the Firm's office and she saw Kamal Chand.

(xvi) At the firm's office Plaintiff asked her to sign for $400.00 and that Plaintiff told her that $400.00 is given because Defendant's daughter in law gave birth to a child.

(xvii) Denied receiving any money from Plaintiff prior to 19 November 2008.

(xviii) On 19 November 2008 she did not meet Mr.Kohli.

(xix) Identified her signature and confirmed signing Exhibits P3 and Exhibit P4 but stated that the documents were not explained to her by anyone.

(xx) If she understood the contents of Exhibits P3 and P4 she would not have signed them.

(xxi) She did not know if Plaintiff knew that her daughter in law gave birth but later in answering question as to why Plaintiff gave her $400.00, she stated that Plaintiff told her that he is giving $4400.00 because her daughter in law gave birth.

(xxii) On 25 November 2011 she went to the Firm's office to give instructions for transfer of the property to her son Sanjay CharanDeo.

(xxiii)She was transferring the property to her son for free but her lawyer told her to put $5,000.00 as consideration to save costs.

(xxiv) On 25 November 2011, she went to the Firm's office with her son and daughter and was attended by Kamal Chand.

(xxv) She was asked to come the next day and she did attend the Firm's office the next day.

(xxvi) She signed the transfer in presence of Kamal Chand, her daughter and son and was told that lawyer will sign the next day.

(xxvii)She went to the Firm's office the next day (i.e 26 November 2011) when Mr Kohli explained the contents of the documents to her in the presence of her daughter and son.

(xxviii) She did not at any time agree to sell subject land to Plaintiff.

(xxix) Sash Lata is her adopted daughter who resides overseas and they speak to each other once a week or once in two weeks.

5.21 During cross examination Defendant:

(i) Confirmed that she is the owner of the property which was given to her by her father.

(ii) Her husband did not own any other property apart from the one subject to this proceedings.

(iii) In 2004, she obtained grant of probate in respect to her husband's estate with estimated value of husband's property at $3,000.00.

(iv) Agreed that her husband's probate showed true value of his property.

(v) When her husband died her younger son was in class seven and that her daughter adopted the younger son and took him to New Zealand.

(vi) Her elder son continued living with her after her husband's death and that she could not remember in what class was his elder son when her husband died.

(vii) Denied suggestion that Plaintiff was cultivating the property from 2000, before the death of her husband.

(viii) Stated that Plaintiff cultivating part of the property on share farming arrangement after he moved onto the subject land.

(ix) Agreed that her husband did not own any farming implements but stated that her father had owned the implements.

(x) To the suggestion that her father died 25 years ago she stated that she was not sure.

(xi) In 2011, she went to the firm's office to have the property transferred to her son for free but stated consideration as $5,000.00.

(xii) She had another land which she sold.

(xiii) Sometimes in 2004 or 2005, she entered into an Agreement to sell 2 acres of the property to one Ambika Prasad for $5,000.00.

(xiv) In the year 2008, the Firm was her Solicitors.

(xv) On 19 November 2008, at Plaintiff request she went to the Firm's office and Plaintiff told her that he would give $400.00 to her as a gift.

(xvi) She was accompanied by her son Sanjay to the Firm's office and they did not ask Kamal Chand to explain the documents (Exhibits P3 and P4) in Hindi.

(xvii) She did not ask to Kamal Chand to write anything about the baby.

(xviii) Initially stated that she saw a paper with lots of writing and a typed paper which she signed and later said that Kamal Chand was still writing when she left.

(xix) Stated that she came to know about the contents of the document she signed on 19 November 2008, two to three months later when her son and daughter in law read it out to her and asked her why she signed it.

(xx) When she was asked why she did not say to her Sanjay (son) that why you did not stop her when she signed in front of him, she stated that her daughter in law read to her and not Sanjay.

(xxi) In three years she did not go to the Firm's office to complain.

(xxii) Agreed that she instructed Kamal Chand to take the instruction as last payment of $400.00 was made.

(xxiii) When asked whether she wants Court to believe that Kamal Chand made it all up she stated she did not and said maybe Plaintiff told him.

(xxiv) Plaintiff's house is approximately one hundred metres away from her house and she can see Plaintiff's house from her house.

(xxv) Since 2005, Plaintiff did improvements to his house and built concrete toilet.

(xxvi) She told Plaintiff not to build and asked the Firm to write a letter to Plaintiff which letter is lost somewhere.

(xxvii) She did not lodge any complaint with Health Department.

(xxviii) First time she complained about Plaintiff operating his shop was in February 2013 by letter from her Solicitors.

(xxix) She denied that up until she decided to sell the property she encouraged Plaintiff to build.

(xxx) Stated that she knew Plaintiff has half acre of land, has house on it and the Plaintiff is operating the canteen.

(xxxi) When asked if she wants court to believe that Health Department gave consent to Plaintiff to operate canteen without her consent she said she does not know.

(xxxii) She agreed that she changed her mind to give subject land to Plaintiff because she believed that she can get lot of money for the property as told by her daughter.

5.22 During re-examination Defendant stated that:

(i) Instructions to obtain probate in respect to her husband estate was given in the Firm's office.

(ii) Mr. Kohlidid not advise her to obtain true value of the property.

(iii) She did not tell Kamal Chand that Estate of BisunDeo is valued at $3,000.00.

(iv) She entrusted her lawyers to carry out instructions for probate.

(v) In 2011, when she visited the Firm's office with her son and daughter to give instructions for transfer of property to her son Mr.Kohli was not there.

(vi) They met Mr.Kohli the next day.

(vii) Mr.Kohli did not tell her that property will be transferred for $5,000.00. She stated that it was written.

(viii) Mr.Kohli did not ask her to have the property valued by a registered valuer.

(ix) Stated that she will not sell the property if she gets a good price as it was her father's property and she will keep it for her children.

(x) $5000.00 was put as consideration in respect to transfer of property to son on her instructions.

5.23 Defendant's second witness Ms Neha Sharma, Litigation Clerk at Messrs S. S. Law who tendered Exhibit D3 - and D4 - on behalf of the Plaintiff. She was not cross examined by Defendant's counsel.

5.24 Defendant's third witness was Sanjay CharanDeo, (Defendant's son).

5.25 During examination in chiefMr.Deo stated:

(i) On 19 November 2008, he accompanied his mother and Plaintiff to the Firm's office at Plaitnff's request from Labasa Hospital.

(ii) At the Firm's office Plaintiff told Kamal Chand that he was giving money to Defendant and for him to prepare receipt.

(iii) Kamal Chand brought a small receipt and asked Defendant to put her thumb print after which they told him to go.

(iv) He then went to the hospital but later stated that when Defendant put her thumb print on the documents he was present at a distance.

(v) The documents were read over to the Defendant in English by Kamal Chand.

(vi) Plaintiff gave money to Defendant to buy something for himself because Plaintiff was staying on the property.

(vii) Stated that Exhibits P3 and P4 (Instructions) were not explained to the Defendant before she signed by affixing her thumb print.

(viii) Plaintiff came onto the subject land to educate his childrenas the road condition got bad during rainy weather and he said he will leave when Defendant asks him to move out.

5.26 During cross examination Mr.Deo:

(i) Stated that he is Defendant's son.

(ii) Initially denied that he said that Plaintiff gave $400.00 to Defendant because Plaintiff was living on her land but when reminded that he said it, he agreed.

(iii) Stated that he knew the Firm as Defendant's lawyers and Kamal Chand was a clerk.

(iv) Stated that Plaintiff told Kamal Chand to make small receipt but he did not see him making the receipt.

(v) He saw Exhibits P3 and P4 last year (2012) when Kamal Chand showed it to him.

(vi) Denied that his wife picked Exhibit P3 and P4 from the Firm's office, two or three months after signing and read them to the Defendant.

(vii) Stated that Plaintiff has a shop and rice mill.

(viii) In response to suggestion that Plaintiff cleared the subject land he stated that he put soil on the subject land.

(ix) To suggestion that Defendant took Plaintiff to the Firm's office, he responded "I don't know".

(x) He lives with Defendant, his mother.

5.27 During re-examination Mr.Deostated that:

(i) Mr.Kohli said to put consideration sum of $5,000.00 in respect to transfer of property to him because if it is transferred on basis of natural love and affection property will need to be valued.

(ii) He does not know what Exhibits P3 and P4 are, but saw the Defendant put her thumb print on them.

(iii) On 19 November 2008, Plaintiff took Defendant to the Firm's office.

6.0 Determination of Issues

Whether Defendant can plead Non-East Factum in respect of Exhibits P 3 and P4.

6.1 To successfully plead defence of Non-East Factum the Defendant must establish by evidence that she signed the documents by mistake and without knowledge of its meaning and effect.

6.2 The basis of the defence of plea of non est factum is summarised at paragraph 284 of Halsbury's Laws of England 4th editionVolume 9 page 162 in following term:-

"The basis of the defence is that the signatory is mistaken as tothe nature of the transaction. Now the general rule is that a man is estopped by his signature thereon from denying his consent to be bound by the provisions contained in that deed or other agreement. Where, however, the plea of non est factum is available, the promises contained inthe document are completely void as against the signatoryentitled to plead the defence into whoever's hands it may come. The reason is said to be that the mind of the signer did not accompany his signature, so that the mistake renders his consent, as represented by this signature, a complete nullity.

In most of the cases in which non est factum has been successfully pleaded, the mistake has been induced by fraud; but the presence of fraud is probably of a necessary factor. At one time a distinction was made between mistakes as to the character and class of the transaction on the one hand and the contents of the document on the other but this differentiation has been rejected bytheHouse of Lords inacase which established the following proposition:

(1) The plea can only rarely be established by a person of full capacity; and, although it is not confined to blind or illiterate persons, any extension in the scope of the plea will be kept within narrow limits.

(2) The burden of establishing the plea falls on the signatory seeking to disown the document; and he must show that, in signing the document, he acted with reasonable care. Carelessness which would preclude him from pleading non est factum is based on the principle that no man can take advantage of his own wrong, and is not an instance of negligence operating by way of estoppel.

(3) In relation to the extent and nature of the mistake relied upon to set up the plea, the distinction formerly drawn between the character and class and the contents of a document is unsatisfactory. For the plea to succeed, it is essential to show that there is as regards the transaction a radical or fundamental distinction between what the person seeking to set up the plea actually signed and what he thought he was signing.

The plea of non est factum is not strictly applicable where one person signs a document in blank and hands it to another to fill in the details, and details inserted are not in accordance with the instruction of the signatory".

6.3 The basis of plea of non est factum state at paragraph 218 of Halsbury Law of England 4th edition is in conformity withwhat was said by House of Lords in Saunders v Anglia Buildings Society [1970] 3 All ER 961, the leading authority on the issue.

6.4 The principles in Saunders has been adopted and applied by Courts in Fiji. See Fiji Development Bank v Raqona [1977] FamCA 81; (1987) 30 FLR 151, Singh v Singh [2012] FJHC 957; HBC 280 of 2007.

6.5 The documents that are subject to Defendant's submissions on the issue of Non Est Factum are Exhibit P3 and P4 being:

(i) Acknowledgement of receipt of $400.00 (Exhibit P3).

(ii) Instructions given to the Firm on 19 November 2008 to prepare Sale and Purchase Agreement for transfer of subject land to Plaintiff (Exhibit P4).

6.6 Defendant gave evidence that she was not explained the contents of Exhibit P3 and P4 and was told that $400.00 was gift from Plaintiff to her for allowing Plaintiff to reside on the subject land.

6.7 Exhibit P3 is one sentence document which is in following terms:

"I Santa Wati hereby receive the sum of $400.00 from Nand Lal being for transfer of ½ acre residential block over CT 27109."

6.8 Exhibit P4 is hand written instruction to the Firm to prepare document for transfer of subject land to Plaintiff.

6.9 With respect I do not believe Defendant's evidence that she was not aware of what she was signing when she signed Exhibits P3 and P4 for following reasons:

(i) Defendant is of full age and had capacity to sign the Exhibits.

(ii) Defendant appears to be fully conversant of legal matters in relation to transfer of property having entered to a prior Agreement for sale of part of property with one Vinesh also known as Ambika Prasad.

(iii) The Firm was Defendant's Solicitors having acted for her in obtaining Probate in respect to her husband's estate and other matters.

(iv) In 2011, she told the Firm to show transfer consideration as $5,000.00 to avoid costs in respect to transfer of the property to her son.

(v) She was accompanied by her son Sanjay Charan Deo.

(vi) Sanjay CharanDeo gave conflicting evidence as to signing of Exhibits P3 and P4. I find his evidence to be incredible and an attempt to mislead this Court.

(vii) During examination in chief he said that after Defendant signed Exhibits P3 he left after being asked by Kamal Chand and Plaintiff for him to leave. In cross examination he stated that he was present at a distance when Defendant put her thumb print on the documents and the documents were read to Defendant in English. Mr. Deo was shown Exhibit P4 and asked if it was explained to Defendant before she puts her thumb print to which he stated "No".

(viii) During cross examinations Mr.Deo stated that the documents were not read to Defendant when she signed it which is contrary to his evidence in examination in chief when he stated that documents were read in English.

(ix) Defendant during examination in chief stated that Exhibit P3 and P4 were explained to her by her son and daughter in law two to three months after signing. When she was asked in cross examination why she did not ask her son as to why he did not complain on 19 November 2008 at the Firm's office, she stated that her daughter in law and not her son explained the documents to her.

(x) Defendant's son however stated that neither him nor his wife went to the Firm's office two to three months of signing the documents and he only became aware of the contents of the documents in 2012 when he was called into the Firm's office regarding caveat lodged by Plaintiff against the property.

6.10 This is inconsistent with the evidence of the Defendant and it is shown that the Defendant's evidence lack credibility. Defendant's solicitors were Messrs Kohli& Singh and on 19 November 2008 she was accompanied to the Firm's office by her son Sanjay Charan Deo who saw Defendant sign Exhibits P3 and P4.

6.11 To me Defendant appeared to be a person who will not sign any documents without being fully aware of its content.

6.12 I also find that there was no inducement on the part of Plaintiff and Kamal Chand when Exhibit P3 and P4 were signed by the Defendant on 19 November 2008.

6.13 I find that Defendant knew the nature and effect of Exhibit P3 and P4 when she signed them on 19 November 2008 in the Firm's office.

6.14 Accordingly Defendants plea of Non-East Factum in respect to Exhibit P3 and P4 is refused.

Whether Exhibit P3 and P4 satisfy the requirement of s 59 of Indemnity Guarantee and Bailment Act Cap 232.

6.15 Defendant by her Counsel submits that Exhibits P3 and P4 does not comply with the requirement of section 59 of Indemnity Guarantee and Bailment Act because of breach of provision section 52 of Legal Practitioners Decree 2009 mistakenly submitted by Defendants Counsel as Leaders Decree 2009.

With respect I do not agree with Defendant's Counsels' submission.

Section 59 of Indemnity Guarantee and Bailment Act provide as follows:-

"59. No action shall be brought -

(a) whereby to charge the defendant upon any special promise to answer for the debt, default o miscarriage of another person; or

(b) to charge any person upon any agreement made upon consideration of marriage; or

(c) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; or

(d) upon any agreement that is not to be performed within the space of one year from the making thereof,

unless the agreement upon which such action is tobe brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other in breach of that provision if person thereunto by him lawfully authorized".

6.16 Any breach of section 52 of Legal Practitioner Act attracts a penalty as provided for insection 52 (2) and does not make any document prepared in breach section 52 illegal or void.

6.17 In any event I do not see anything wrong in a law clerk who acts under the supervision of a legal practitioner in taking instructions for simple conveyancing transactions such as one subject to this proceedings under the supervision and guidance of a legal practitioner whilst in the employment of such legal practitioner.

6.18 I find that Exhibits P3 and P4 even though no consideration or time for completion asstated they are in compliance with requirement of s59 of Indemnity Guarantee and Bailment Act.

6.19 In any event Defendant has failed to plead non-compliance with Section 59 of Indemnity Bailment and Guarantee Act as such this. Defence raised in Defendant's submission should fail on this ground alone.

6.20 Even if I made a finding that Exhibits P3 and P4 did not meet the requirement of s59 of Indemnity Guarantee andBailment Act, Defendant's submission on this issue will fail and would not be considered for sole reason that Defendant has not pleaded breach of Section 59 as a defence in her Statement of Defence.

6.21 At paragraph 48 of the Halsbury's laws of England 4th edition Volume 36 it is stated as follows:

"The defendant must in his defence plead specifically any matter which he alleges makes the action not maintainable, or which, if not pacifically pleaded, might take the plaintiff by surprise or which raises issues of fact not arising out of the statement of claim. Examples of such matters are performance, release, any relevant statute of limitation, fraud or any act showing illegality. Other matters which must be so pleaded are the Statute of Fraud and the provision of the Law of Property Act 1925 which requires contracts for the sale of disposition of land to be in writing, and it seems, any ground of objection to the jurisdiction of a court".

6.22 In Khan vBuanasolo [2013] FHCA 10 ABU49.2011 (8 February 2013) Fiji Court of Appeal stated as follows:

"However, pursuant to Order 18 Rule 7 (10 (a) a party must, in any pleading subsequent to the Statement of Claim, plead specifically any matter which he alleges makes any claim of the opposite party not maintainable. Consequently section 59 of the Act (which in effect reproduces the old section 4 of the Statute of Frauds) must be specifically pleaded if a defendant intends to rely on it. (Supreme Court 1991 Volume 1 at paragraph 18/8/21). Furthermore, the section must be pleaded in such a way as to indicate to the other party clearly the exact point raised and in what respect it will be contended that the statute applies: Pullen v. Snelus (1879) 40 LT 363, North v Loomes [1919] 1 Ch. 378 and generally Halsbury's Laws of England Fourth Edition Volume 36 paragraph 48.

The Appellant's Statement of Defence filed on 13 December 2005 makes no reference to section 59 of the Act and as a result the Appellant cannot rely on the Defence. Even if the Appellant had properly pleaded the Defence the Respondents, rightly or wrongly.Had pleaded in the Statement of Claim sufficient facts to raise the common law exception to the requirement in section 59 that the contract had been partly performed. Furthermore, the inclusion of alleged facts by way of part performance in the Statement of Claim in order to take the case out of the operation of section 59 of the Act did not relieve the Appellant from the requirement to plead the defence if he wanted to raise it and rely on it: Clarke v Callow (1877) 46 L.J.Q.B. 53

Whether parole evidence can be allowed to establish term of contract.

6.23 Defendant's counsel submits that parole evidence can not be allowed to determine the term of the contract and relies on following statement of his Lordship Justice Inoke (as he then was) in Toganivalu v DhirenderaDeo and Dhirend ChandCivil Action No. HBC 289 of 2005L:-

[28] The parole evidence rule says that "if there isa contract which has been reduced to writing, verbal evidence is not allowed to be given ...so as to add to or subtract from, or in any manner to vary or qualify the written contract". The rule has been extended to exclude written evidence. Its jurisdiction is that it upholds the value of written proof, effectuates the finality intended by the parties in recording their contract in writing and eliminates great inconvenience and troublesome litigation in many instances: Chitty on Contracts, no 1, vol 1, 27thedn, para 12-081 and the cases there cited.

[29] However, the rule is subject to many exceptions. In Gillespie Bros & Co v Chenney, Eggar& Co [1896] UKLawRpKQB 55; [1896] 2 QB 59, 62 Lord Russell CJ stated:

"...although when the parties arrive at a definite written contract the implication or presumption is very strong that such contract is intended to contain all the terms of their bargain, it is a presumption only, and it is open to either of the parties to allege that there was, in addition to what appears in the written agreement, an antecedent express stipulation not intended by the parties to be excluded, but intended to continue in force with the express written agreement"

[30] Application of the rule is further explained by Roskill LJ in J. Evans Ltd v Andrea Merzario Ltd [1976] 1 WLR 1078, 183C:

"The matter was apparently argued before the Judge on behalf of the plaintiffs on the basis that the defendant's promise (if any) was what the lawyers sometimes call a collateral oral warranty. That phrase is normally only applicable where the original promise was external to the main contract, that main contract being a contract in writing, so that usually parole evidence cannot be given to contradict the terms of the written contract...But that doctrine, as at seems to me, has little or no application where one is not concerned with a contract in writing...but with a contract which, as I think, was partly oral, and partly in writing, and partly by conduct. In such a case the court does not require to have recourse to lawyer's devices such as collateral oral warranty in order to seek to adduce evidence which would not otherwise be admissible. The court is entitled to look at and should look at all the evidence from start to finish in order to see what the bargain was that was struck between the parties. That is what we have done in this case and what, with great respect, I think the judge did not do in the course of his judgment. I unreservedly accept Mr Hallgarten's submission that one must not look at one or two isolated answers given in evidence; one should look at the totality of the evidence."

6.24 It is apparent from the evidence that the contract between the Plaintiff and Defendant for Defendant to transfer subject land to the plaintiff was partly oral and partly in writing.

At page 402 of the Halsbury's Law of England 3rd Edition Volume 11 it is stated as follows:-

"Parole evidence is also admissible to show that the transaction is affected by fraud, immorality, illegality or mistake; to show the true consideration or the existence of consideration or of consideration in addition to that stated; to show the nature of transaction or the true relationship of the parties".

6.25 I hold that in this instance and in view of the fact parties are closely related it is in the interest of justice that parole evidence be considered as to the term of the alleged contract between the parties to determine the consideration.

Whether Plaintiff is entitled to specific performance in respect to contract for sale and purchase of subject land.

6.26Specific performance is an equitable remedy and as such equitable principles apply.

6.27 In order to obtain any equitable remedy Plaintiff must establish that there has not been undue delay in enforcing its right under the contract as equity will not assists the tardy Narayan v Shah [1975] 21 FLR 139.

6.28 In this instance the delay in enforcing the contract by the Plaintiff has been seven years. This delay is substantial.

6.29 However, since this court has discretion whether to grant relief of specific performance or not various factors needs to take into account by Court in addition to the delay by the Court.

6.30 That factors that are relevant in the proceedings are:

(i) Parties are very closely related and up until 2011 had a very cordial relationship and because of this Plaintiff may not have thought of enforcing his right;

(ii) Plaintiff have carried out substantial development on the subject land

(iii) Full consideration for transfer of subject land has been paid by the Plaintiff and the Defendant.

(iv) Parties have partly performed the contract by payment of the consideration sum and carrying out of improvement on the property.

(v) Defendant consented to the improvements carried out by the Plaintiff on the subject land if not expressly than by her conduct in not stopping the Plaintiff from carrying out the improvements.

(vi) I believe Plaintiff's evidence that he paid $600.00 to Defendant as part payment of total consideration prior to 19 November 2008.

(vii) I find Plaintiff's evidence credible over that of Defendant and her son as to the sale of the subject land to the Plaintiff.

6.31 Under the circumstances and on the basis of evidence produced in Court I hold that it's only just and equitablethat Defendant perform the contract by transferring the subject land to the Plaintiff and to do otherwise will be inequitable and unjustifiable.

6.32 Once again, Defendant has failed plead the defence of "laches" to the relief or specific performance and I repeat my comments at paragraphs 6.19 to 6.22 of this Judgment.

6.33 As stated by Fiji Court of Appeal in Khan's case that if defence of delay was pleaded it would put the Plaintiff on notice and would have attracted a response from Plaintiff.

6.34 The fact of this case are somewhat similar to that of Khan's case with only difference being that in Khan'scase property was disposed to a third party and Plaintiff did not seek order for specific performance andonly sought compensation. Fiji Court of Appeal did not fall short in stating as follows:

"It is clear that the Respondents, on the findings of the learned Judge, could have commenced proceedings for specific performance compelling the previous owners to provide to them certificates of title as registered proprietors.

6.35 Before I make final orders I make following observations and findings in respect of evidenceas adduced.

(i) Exhibit P1 is photocopy of Certificate of Title No. 27109. Parties should take note if the parties do not intend to call Public Officer to give evidence in respect to public document or records then they must obtain "certified true copy" of such document or records from person authorised to certify the particular document or record.

(ii) Since no one was called to give evidence from Macuata Rural Local Authority ("MRLA") I have not given any weight to Exhibits D3 and D4 being copy of letters dated 11 February 2013 from SS Law to MRLA and letter dated 28 February 2013 from MRLA to SS Law.

(iii) I find that evidence of Plaintiff and Kamal Chand more credible then that of Defendant and her son Sanjay Charan Deo.

(iv) If parties are to make submission on facts not pleaded on the then they should seek leave of Court to amend the pleadings and only if leave is granted and amended pleadings are filed by parties then they should address it in their submissions.

(v) I have not analysed any evidence in respect to cultivation of the property by the Plaintiff because of pending action for tenancy in Agricultural Tribunal proceedings No. 14 of 2012.

6.36 In relation to costs I take into consideration that the trial was conducted over two days with Plaintiff calling three witnesses and Defendant calling two witnesses, and also parties filed Submissions.

7.00 Conclusion

7.1 I make following orders:

(i) Within thirty (30)days of this judgment Plaintiff engage a Registered Surveyor to carry out survey of the property known as Lot 3onDeposited Plan No. 5800Matasawalevu in the District of Dreketi, in the Island of Vanua Levu containing seven hectares, seven thousand three hundred seventeen square metres comprised and described in Certificate of Title No. 27109 ("the property") and attend to registration of the subdivision plan with Director of Town and Country Planning to enable transfer of half acre(2024sqm),of the property currently occupied by the Plaintiff ("the subject land") to the Plaintiff for consideration sum of$1,000.00 already paid by the Plaintiff to the Defendant.

(ii) Upon registration of the subdivision plan with Director of Town and Country Planning the Defendant do transfer the subject land to the Plaintiff.

(iii) The Defendant do sign all Application and documents, including but not limited to scheme plan and subdivision plan, transfer, capital gains tax declaration to enable registration of subdivision plan and transfer of the subject land to the Plaintiff.

(iv) All costs for subdivision of the property and transfer pursuant to paragraphs 6.1 (i), (ii) and (iii) of this judgment including but not limited to Application fee for subdivision, surveyors costs, fee imposed by any governmental or statutory body, costs for compliance with condition imposed by Director of Lands and/or Director of Town and Country Planning, cost for construction of any access road to the subject land, cost of provision of water, electricity and telephone to the subject land, legal costs (including Defendant's solicitors cost) stamp duty and other disbursements for transfer of the subject land to the Plaintiff, registration fee of the subdivision plan, and transfer shall be paid for by the Plaintiff.

(v) Defendant is to pay Plaintiff costs of this action assessed in the sum of $3,000.00.

(vi) If Plaintiff fails to comply with the time limit, of thirty (30) days in paragraph 6.1 (i) of this Judgment or fails to pay any fees to enable registration of subdivision plan and transfer of subject land within a reasonable time then Defendant is at liberty to make application to this Court for revocation or orders for specific performance.

(vii) Parties are at liberty to apply by giving seven (7) days' notice.

K Kumar
JUDGE

At Labasa
5 December 2014

Maqbool& Company for the Plaintiff
S S Law for the Defendant