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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 48 OF 2003
BETWEEN:
SOUTH SEA LANDS LIMITED
a limited liability company having its registered office at Lautoka, Fiji.
PLAINTIFF
AND:
VILIMONE BIUDAI & LOSALINI
KOROLALA BIUDAI
Villager & Domestic duties respectively of Nacekoro, Savusavu
DEFENDANTS
COUNSELS : Mr H Robinson for the Plaintiff
:Mr V.P. Ram for the Defendant
Date of Hearing : 24th, 25th, 26th and 27th July, 2006, 2nd November, 2006,
and 26th and 27th March, 2007
Date of Judgment : 29th October, 2015
JUDGMENT
Introduction
[1] The Plaintiff is seeking vacant possession of land comprised in CT 24649 being the lot 9 in DP 5834. The land is registered to the Plaintiff. The Defendants are seeking dismissal of the action and also a declaration that they are the beneficial owners of the land and a declaration that the Defendants have performed their obligations under the alleged verbal agreement to transfer the land by the Plaintiff, and specific performance of the alleged verbal agreement. The Defendants are also seeking damages. The trial of this case was held on 24th,25th, 26th and 27th of July, 2006, 2nd November,2006, 26th and 27th March, 2007 and both parties consented to adopt the proceedings held in 2006 and 2007 before Justice Jitoko, after they were given an opportunity to examine the transcript of the said proceedings. Accordingly parties were granted further time to make any additional written submissions and the Plaintiff filed further submissions on 7th August, 2015. Both parties relied on the submissions filed previously .
Facts
[2] The following facts were agreed between the parties according to the pre trial conference minutes filed in the copy pleadings.
[3] The Plaintiff is only seeking an order for vacant possession of the land in issue.
[4] The legal status of the Plaintiff, contained in the paragraph 1 of the statement of claim, is admitted. Hence it is admitted fact that the Plaintiff is a limited liability company registered in Fiji. (See the first paragraph of statement of defence.)
[5] The Plaintiff in this action is a limited liability company, and it was involved in the land developing. The initial directors and the shareholders, of the said limited liability company (the Company) were late Mr. Bob Hunter and his wife Anette. Later the brother of Annett named Mervyn Lepper was made a share holder and director of the Company.
[6] After the death of Bob Hunter the widow married Daniel Brian Costello. He is presently the Director of the Company, along with his wife. The brother of Annett was also made a shareholder and his shareholding was less compared to the majority shareholders.
[7] At the trial both Anette and Daniel Costello who were the shareholders and directors of the Plaintiff gave evidence. Apart from them Ms. Lima Simpson who was the only administrative personnel of the Plaintiff also gave evidence. She had left the Plaintiff company, but was involved with it during the initial time period where the alleged agreement of the Defendants with late Bob Hunter, was made. For the Plaintiff Matilda Simpson who was the occupiers of the house which the Defendants were living gave evidence and said that from outwards the structure was the same except some 'bamboo walls' were added.
[8] In the payer of the statement of defence inter alia following orders were sought:
Analysis
[9] In the statement of defence the legal personality of the Plaintiff is admitted. So the Plaintiff can sue and be sued under its name. It is also the registered owner of the land in dispute more fully described as part of the land known as Nacekoro containing 2.3667 hectare at Savusavu in the island of Vanua Levu. So being the registered proprietor of the said property the Plaintiff obtains attributes of title under Torrens System and also attributes of an incorporated body.
[10] The Plaintiff is a company incorporated under the Companies Act (Cp247) hence its existence is distinct from the shareholders and or the natural persons involved with it.
The Plaintiff is a legal personality distinct from its shareholders and there is no evidence that any promise or even a discussion of transfer of the property by the said legal entity. The lifting of the corporate veil is done in specific instances and this was emphasis in the Fiji Court of Appeal in R.C. Manubhai & Co. Ltd v Herbert Construction Company (Fiji) Ltd [2014] FJCA 175; ABU0002.2010 (decided on 29 May 2014) (unreported). So even if there was a promise by late Bob that cannot defeat the absolute title of the Plaintiff.
[11] In the statement of defence the Defendants are claiming the land in dispute firstly, on the basis of unpaid commission (10%) from the sale of subdivided 20 parcels of land from 'Nacekoro'. Secondly, in the counter claim, state that the Defendants were not paid wages for the work they did prior to 1985. For the said reasons the Defendants allege beneficial ownership. Thirdly, specific performance of agreement to transfer the property.
[12] In terms of Section 59 of the Indemnity, Guarantee and Bailment Act (Cap 232) states as follows:
Promises or agreements by parole;
*59. No action shall be brought-;
(a) Whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or
(b) Whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; or
(c) to charge any person upon any agreement made upon consideration of marriage; or
(d) Upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; or
(e) 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 to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorized.
(emphasis added)
[13] The claim for specific performance cannot be maintained considering the above provision of law. There was no written agreement produced in court in order to seek specific performance in order to transfer the property in the name of the Defendants. In fact the 1st Defendant did not give evidence at the hearing. If there was a promise to him based on land sales, he should have given evidence as no other person can give evidence on such a fact since the other parties that 'promised commission' had died.
[14] The subdivision and sale of the land was in 1984-85 according to the evidence of Samisoni Matasere who was called for the Defendants. His evidence was that he was a surveyor technician during the subdivision. They were generally called 'chain men' and lived with the Defendants at the site. The 1st Defendant could not read or write according to Annette, hence in the test of probability the contention of the land sales by 1st Defendant fails.
[15] Without prejudice to what was stated in the claim based on the alleged non payment of commission of 10% of the 20 blocks of lands allegedly sold by 1st named Defendant, cannot be maintained in terms of the abovementioned provision of law as there was no written memorandum relating to land sales. The Defendants could not produce documentary proof in support of their claim for sale of land or promise to transfer the land to them. If 20 land parcels were sold at least one such person who bought the land could have been named or called to give evidence. This again proves that this was an afterthought, perhaps with the help of estranged brother of Annette, late Mervyn Lepper who had even vowed to break the marriage of late Bob and Annette.
[16] Apart from that 1st Defendant opting not to give evidence no evidence was produced to prove that he had sold 20 lots of land . The unsworn stamen of Mervyn Lepper cannot be believed for the reasons I state later in this judgment. The Defendant failed to prove that he was able to sell even a one lot out of subdivided lands at Nacekoro.
[17] It is highly improbable to think that a domestic helper who could not write or read could sell 20 lots of lands in the said area on or around 1984-86. If he could do such a feat at that time there is no need to be employed as a domestic worker even as late as 2003, more than 20 years after such an achievement. The 1st Defendant was a Copra cutter, gardener, cleaner and a cook in last 35 years and had not shown any skills in marketing real estate. If he had such a skill he could have profitably employed in a business, considering the close relationship that 1st Defendant had with Annette and her family.
[18] There were records of payments to 1st Defendant, for the cleaning at Wina Estate from 1999. This also proves there was no arrangement between the parties to provide 'free labour for life.' If there was such an agreement why they accepted a wage instead of the alleged transfer of the land in issue was not explained. If the agreement was to provide the land for free in exchange for their 'free labour', admittedly it has changed after 1985. Bob Hunter died in 1982. So when they were paid for labour the issue of land transfer would have raised by a reasonable person, if there was such a promise, at that time.
[19] The Plaintiff has only two Directors and they are also shareholders. They are Annette and Dan Castello and both of them gave evidence. Apart from that the only administrative personnel of the Plaintiff till 1980s, Ms Lima Simpson also gave evidence and said that she was unaware of any written document relating to promise the transferring of the land in issue to the Defendants. She also said she was not told of such an assurance of transfer of land to the Defendants, by late Bob Hunter and she said late Bob Hunter used to write down important things and she had seen none to the effect of the alleged transfer. This also proves there was no written document relating to the alleged promise of transfer of the land. She also said the daughter of the Defendants had inquired from her about this recently, and she had told the same thing to them. Not only the Defendants, but also all the other family members did not inquire about transfer of the land until they were asked to pay rent and action was taken for eviction.
[20] Matilda Simpson was the previous occupier of the house on the land, which the Defendants reside. The Defendants had moved there after Matilda had left. She said her husband built it and there were no additions to the said structure from the outside and the only visible change was some 'walls 'were added around it. The 'walls' were not of permanent nature and made out of bamboo. This addition of bamboo walls cannot create equity. It was not clear that when and who did it either. Neither party produced documents for improvements to the property. The only receipt produced by the Defendants was in 2002 and since they had built a house in their village it does not prove that improvements to the value stated in the receipt.
[21] From the photographs submitted and the evidence presented by the Defendant the structure may be heavily over valued at FJD 30,000. There was no proof of the value of the said structure, but the evidence of the Defendant was that it was able to accommodate the 'chain men' who assisted the survey in 1984-86. The Defendants have moved in to the said structure in 1970 and had lived there since then.
[22] Even before 1970 the Defendants were given accommodation when they were involved in copra-cutting at Wina Estate, which belonged to the father of Annette. The accommodation in the land was not provided as soon as they came to work in Nacekoro, but later when the place became vacant as Matilda Simpson, moved out from the structure.
[23] So the Defendants were long term employees of Annette's family and they had provided accommodation for them. The alternate contention of the Defendants was that they were moved from Wina Estate to the land in issue on the promise of providing the said land. If such a promise was given it would have been late Bob Hunter and why they did not ask for the said land even after demise of him was not explained. He died in 1982 and even at that stage the Nacekoro estate was not sub-divided. So there could not have been any promise for the land in issue which was registered in 1985 as a separate land. So if there was a promise prior to 1985 it was not for a specific land and not for the land in dispute.
[24] Why the Defendants did not even once raise the issue of transferring the land to them since 1985 was not explained. The Defendants
are native land owners and had built a house in their traditional land belonging to Mataqali and the evidence was that they received
help from the Annette's family. If a land with a building was promised why they opted to build a separate house was explained by
the 2nd Defendant in cross examination, in the following manner:
Question: Why would you go and build at Devodra when you are improving the house at Nacekoro?
Answer: Tired of waiting. (page 61 of transcript, 2nd Defendant's evidence)
[25] If a reasonable person was tired of waiting that person would at least make a request. The Defendants could easily do that, considering the relationship between the parties. There was no evidence that even once such a request being made to the Plaintiff and or to late Bob, or to Castellos.
[26] The Defendants were aware of the land not being transferred to them. They had waited for a long time since 1970s .Even after subdivision in 1985 there was no transfer. If so why didn't they even ask from Annette or her husband to transfer it? There was no evidence that such a request was ever made, but the 2nd Defendant stated that she was considering to whom the transfer should be made as she desired her son to have the land in issue. But this position was never put to the Plaintiffs' witnesses when they gave evidence. If Annette and 2nd Defendant discussed about the person to whom the transfer should be made that could have elicited in cross examination.
[27] This fact cannot be correct as her sons were not living in the property at the time of litigation and only a daughter and her husband lived there. The carpenter who did the alleged improvements never mentioned about a son of the Defendant even helping him to do improvements. This is unlikely if Defendants thought of transferring the land to a son. At the hearing only daughter Elenoa gave evidence and earlier eviction procedure was instituted against her.
[28] If the Defendants were given a promise to transfer the land in issue it should be after sub division in 1984-86. Before that the entire Nacekoro Estate was 400 acres. So if there was any promise prior to 1982, it would have been by late Bob Hunter. Even at that time entire land was owned by Plaintiff. He could not have given a promise to transfer the land in issue as the subdivision happened after his death.
[29] Keran Lewley who gave evidence said she was told by late Bob Hunter that 'some acres to own' would be given. Even if this is believed, at that time there was no specific land area demarcated and this could only be a discussion of what he intended, not what he did and specially not what Plaintiff did. There was no such intention or promise from the Plaintiff. Her evidence was that there would be 'free labour for life' since the Defendants were residing, but this proved to be incorrect. Defendants admit that they were paid since 1985. 1st Defendant had also worked as a cook in a ship for more than 10 years for a wage. The relationship between Keran and Annette's family after the divorce would not have been cordial. Though she had visited the Defendants she had not visited Annette when she came to Fiji. In the circumstances her evidence relating to hearsay evidence cannot be accepted.
[30] The Defendants have placed a caveat on the property on 28/7/2003 and this was nearly 10 months after the letter of Annette indicating potential legal action for eviction dated 8th October, 2002.
[31] In the written submissions the issue of marriage of Keren and Clarence was raised as to discredit the evidence of Clarence. It was stated in the submission that Clarence denied married to the Keren, but I was unable to find such a denial. He had stated that he 'lived 'with Keren. Both of them had got married in 1971 and before that they had 'lived' together and in fact she had admitted even having a child before marriage and also going to the Wina Estate with Annette and her family while she was at school. From what is available in the transcripted evidence I cannot reject the evidence of Clarence Lepper as unreliable. Even if the said evidence is not considered the burden of proof is with the Defendant for their claim based on equity and this was not done on the balance of probability.
[32] The Defendants also tried to state Annette was mentally unstable and could not be relied. This again was not proved. She had
lost her husband in 1982 in USA and had come back to Fiji and also able to subdivide 400 acre, Nacekero Estate in 1984-1986 as a
widow. She had remarried Dan Castello in 1987. Considering these facts it is improbable to consider that Annette was mentally incapacitated
and her evidence not to
be relied on that basis. She was cross examined for considerable time (10 pages) but in the analysis her evidence is unasiailed.
[33] From the evidence it is admitted that Annette and her family had helped the Defendants. They had provided an abode when the Defendants were copra cutters at Wina Estate and later they had come to work for late Bob Hunter and Annette. In the evidence it also transpired initially both the Defendants had to travel for work every day and when the house built by Metilda Simpson's husband was vacant it was given to the Defendants to reside. First Defendant was employed as a gardener and the 2nd Defendant as a maid in the house Hunters lived. Annette gave evidence and said the Defendants were provided with the lodging as part of employment even prior to coming to work for Hunters at Nacekoro in her father's Wina Estate. This fact was admitted by the 2nd Defendant.
[34] There was also evidence that late Bob and Annette Hunter, had even paid school fees for the children of the Defendants and even had helped their children to find suitable employments in their related entities like South Sea, Bechcomber etc. Later Dan and Annette had helped Defendants to build a house in Devodara village that belongs to the Defendant's Mataqali. It was also admitted that the Defendants were paid by Dan Castello according to the evidence of the 2nd Defendant. If they were not paid previously and there was a promise of the land they lived, when payments started they would have immediately asked about the promise, but there was no such evidence.
[35] It is clear that Defendants family did not have a place to stay and were employed as copra cutter at Wina Estate prior to moving to the present premises. They had benefited from moving to Nacekoro, even 1st Defendant got an employment as an Able Seaman, and one son of the Defendant was already a Captain of a ship belonging to South Sea. The two families have lived very close till the son in law of the Defendants confronted Annette with a cane knife when she visited the place they were living . Though this fact was denied by the Defendants, the daughter of the Defendants, Elenoa said she was very angry when asked to leave the premises.
[36] According to the evidence of the 2nd Defendant, the 1st Defendant was not employed by the Plaintiff at the time of the hearing. He was employed as a cleaner at Wina Estate until 2003. Before this he was employed as an Able Seaman by Beachcomber Cruises Limited from 1988 to 1998. He even had an FNPF number indicating he was paid during this time period. So, there was no free labour for life as alleged by the Defendants' witnesses. Even before 1982, though there were no records, there would have been payments for the labour. If not how could they live with their children. As a copra cutter 1st Defendant had received payments at Wina Estate and he had come to Nacekoro where both Defendants found employment. It was unlikely that they were not paid at that time considering the evidence in totality.
[37] There was no substantial investment and or improvement, by the Defendants in the property. There was a purchase of some items to the value of $790.00 in 2002. It is not certain whether these purchases were expended fully on the structure at the property. There was evidence that Defendants had built a house in their village. This according to the 2nd Defendant was after tired of waiting for the transfer. So the Defendants knew they could not built in the land in issue without the title being transferred to them. So it is unlikely that they did substantial improvements to the structure.
[38] A person who lived on the property without any rent for more than 35 years would have some repairs to the property. The structure where the Defendants live was not a permanent structure and it could not have remained without repairs. It is improbable to think that all the repairs were done by the Defendants considering the close relationship that they had with Annette and their family including her father and mother. There was no evidence of any approval or knowledge of improvements being done in the property by the Plaintiff.
[39] From the analysis of evidence the basis of the Defendants moving to the land in issue was that the staid place got vacant after previous occupiers moved out. So if there was any claim for the structure it should be Ms. Matilda Simpson and or her husband who built it. She had also given evidence that there was no apparent improvement of the structure. They had built it and had also left it and then the Defendants had moved with their children from Wina Estate. Before the Defendants came to Nacekoro they were provided with accommodation even at Wina Estate and would have moved to premises on the same basis. It should also be noted that accommodation came later, as there was evidence that both the Defendants had moved to Nacekoro first . At that time they had to travel daily and accommodation was given later.
[40] There was a discussion of land in issue being transferred to Defendants by late Mervin Lepper who was also involved in the land sales and subdivision. He had fallen out with Annette due to some issue of inheritance of Wina Estate. According to Annette her late father had given homestead five acres of land over Mervin and this had created some animosity between him and Annette .
[41] Bob Costello who admitted that Mervin raising the issue of transfer of the land to the Defendants with him, but he had not consented to it. This conversation was blown out of the proportion by the Defendants in this case. The explanation and the context on which the uttering happened cannot prove a prior promise. It can prove that there was some issue raised by late Mervin, who was already not happy with Castellos, regarding the transfer of the land in issue to the Defendants. Late Mervin was apparently creating some issues due to his animosity towards Annette.
[42] In late Mervin's statement he had said that 1st Defendant had sold some land lots and commissions were due to him. This cannot be accepted for the reasons I have given previously in this judgment. In the light of that late Mervin cannot be relied upon and even the raising of issue of transfer of the land to the Defendant cannot be taken as proof of a prior promise to do so.
[43] The Defendants have failed to prove prior promise to grant the land in issue by the Plaintiff on the balance of probability. In contrary the examination of the title to the land in issue indicates that the same land had been mortgaged several times by the Plaintiff for financial institutions at different times. So this also proves that the Plaintiff never considered this land as a reserved lot of land for the Defendants. Even in 1990s it was mortgaged and this indicates this lot was not considered differently from other lots and this was mortgaged several times by the Plaintiff in its business activities.
[44] In the written submissions filed by the Defendants two Fiji case laws were cited. They are clearly distinguishable from the
case before me. Both these cases were not matters where evidence recorded. Ocean Shores Estates Ltd v Karavaki [1997] FJHC 29; Hbc0468j.96s (6 March 1997) was a summary eviction in terms of Section 169 of Land Transfer Act(Cap 131). In that case the High
Court held that evidence needed to be taken when there was a claim based on equity. So the ratio of the said case cannot be applied
to the Defendants, in the case before me.
[45] Jamnadas Sports (Fiji) Ltd v Stinson Pearce Ltd [1994] FJCA 20; Abu0040j.92s (24 May 1994) was a case decided on summary judgment without considering the evidence and the Fiji Court of Appeal
ordered a re-hearing. The ratio of the said case cannot be applied to the Defendants.
[46] Pascoe v Turner [1978] EWCA Civ 2; [1979] 2 All ER 945 was a case where the improvements to the property were substantial and tacit approval for that from the owner. There was neither
approval nor substantial improvements to the property in issue by Defendants. If some improvements were done inside the property
and especially without the knowledge of the owners or consent of the owners that cannot create an equitable right to stay. More importantly
the substantial improvement and the consent of the owner were not in dispute in the said case . According to the evidence of the
2nd Defendant they 'were tired of waiting' for the transfer of the land to them. If so they knew that they did not own it and anticipated
a transfer in future which did not materialize. Why could not then place a caveat without waiting till 2003?
[47] The Plaintiff is a legal personality distinct from its shareholders and or managers. There was no promise from the Plaintiff to the Defendants to reside in the said property. On the balance of probability there is no proof of promise to transfer the land for the Defendants in return for 'free labor for life'. The 1st Defendant even has an FNPF number and he had also employed in Beachcomber as an Able Seaman from 8th February1988 to 16th May, 1998. This was more than 10 years and this was according to the letter contained in the agreed bundle of documents. These facts were not denied and affirmed by Elenoa. The first Defendant had rejoined Wina Estate in 1999 as a cleaner. On the balance of probability it is proved that the 1st Defendant was paid a salary though no records were produced. The contention that the Defendants worked free for the Annette and her family prior to 1982 was not proved on balance of probability. There were records of payments from 1999. There is no trust created from the property in lieu of alleged unpaid wages and or alleged unpaid commission from sale of subdivided lands. The contention of beneficial ownership also fails. There was no proof of value of the structure. The value of $30,000 stated by the carpenter cannot be accepted and in any event Defendants had not built it as it was built by Matilda Simpson's husband. There is no proof of equity being created over the property in issue. The Plaintiff is granted vacant possession. Considering the length of time of the hearing and the cost is summarily assessed at $5,000.00.
Final Orders
Deepthi Amaratunga
Judge
High Court Suva
Dated at Suva this 29th day of October, 2015
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