Bi v Seru [2015] FJHC 990; HBC100.2014 (3 December 2015)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. : HBC 100 of 2014

BETWEEN:

SHABANA KHATOON BI
APPELLANT
(Original Plaintiff)

AND :

MAULESIO SERU also known as
MAULISIO SERU and SERU MAULISO
RESPONDENT
(Original Defendant)

COUNSEL : Mr. V. Prasad for the Appellant

Mr. S. Tikotiko for the Respondent

Date of Hearing : 30th October, 2015
Date of Judgment : 03rd December, 2015

JUDGMENT

[1] The plaintiff by way of originating summons instituted these proceedings against the defendant seeking to obtain possession of the land which is the subject matter of this case.

[2] The plaintiff’s case is that he purchased the land described in the Certificate of Title No. 34724 being part of the land known as “Tamavua” [Lot 21 in Deposited Plan No. 7523] containing in extent Two Hundred and Forty One Square Meters. The Certificate of Title was annexed to the affidavit in support marked as SB 1. The plaintiff entered into a sales and purchase agreement on 07th June 2013 [SB 2] in respect of the said land and as per paragraph 7 of the said sale and purchase agreement the defendant agreed to handover the vacant possession of the land within four months from the date of settlement.

[3] On 06th August 2013 the plaintiff through her solicitor sent a letter to the defendant requesting him to vacate the land and hand her over its possession before 07th December 2013. Since the defendant did not vacate the land as promised the plaintiff through her solicitors served on the defendant a notice to quit dated 2nd January 2014. In reply to the said notice the defendant through his solicitor wrote to the plaintiff seeking one (01) month to vacate the land. The 2nd paragraph of the said letter dated 07th January 2014 reads as follows;

We write to seek consent that our client be given one (1) month time from the date of this letter to do necessary arrangement.

[4] Since the defendant failed to give up possession of the land after granting the time requested by him the plaintiff filed this action.

[5] The defendant filed his affidavit in opposition wherein he stated that after 02nd January 2014 his granddaughter informed him that he had to vacate the land and his son Rafaele Save Seru told him that the plaintiff promised him $ 26,000 if he obtained the defendant’s thumb print on the instrument of sale.

[6] In support of the affidavit of the defendant, his son also filed an affidavit. In his affidavit he states that the plaintiff was their neighbour for the last six years and also that he worked for the plaintiff and her husband at Vitiana Timbers Limited. Prior to 07th June 2013 the plaintiff approached him and requested him to sell the defendant’s property, which is the property in question, for $ 26,000 and undertook to make arrangements to prepare the necessary documents and also to provide transport. When she came to pick them up he had told that they were to go to the hospital because the defendant was old and sick but the plaintiff insisted that the he should take the father to sign the documents.

[7] He also stated in the affidavit that he did not tell the defendant that he conspired with the plaintiff to sell the property.

[8] The learned counsel for the plaintiff raised an objection to the affidavits of the defendant and his son on the grounds that both affidavits are not indorsed with a note showing on whose behalf it is filed and the jurats of both these affidavits are isolated overleaf from the rest of the contents of the affidavit.

[9] The learned counsel for the plaintiff to referring the following paragraph of the judgment of the learned Master submitted that she had failed to give any reason for allowing these affidavits to stand.

I have perused the affidavits. I admit the affidavits are defective and display casual attitude towards the rules of the Court on the preparation and swearing of affidavits.

[10] The learned Master has considered these objections and decided to accept them.

[11] Order 41 rule 1 provides that an affidavit may, with the leave of the court, be filed or used in evidence notwithstanding any irregularity in the form thereof.

[12] Order 41 rule 9(2) provides that every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without the leave of the court.

[13] The above provision has the effect of conferring discretion on the court either to reject any affidavit which is not in compliance with this provision or to accept it. The learned Master before allowing the two affidavits to stand considered the following decision on this issue.

[14] In Kim Industries LTD, In Re (No.1) [2000] FJHC 267; [2000] FLR 141 it was held:

If an affidavit bears an irregularity in its form, such as omission of the endorsement note, leave must be obtained from the court for it to be filed or use 41 rule 1 and Order 41 rule 9(2). In this case I am prepared to grant such leave to the petitioner. However these Rules have good purpose behind them. The failure of counsel come with adequately prepared affidavits will not always result in allowing indulgence under Ord. 41 or Ord. 2 r. 1. See Ba Town Council v. Fiji Broadcasting Commission and Others [1976] 22 FLR 91 at 94B; Gleeson v. J. Whippell & Co. Ltd. [1977] 1 WLR 510.

[15] In the affidavit filed by the defendant it is very clearly stated at the last page that it is the affidavit of Maulesio Seru and in the affidavit of his son it is stated that it is the affidavit in support of Rafaele Save to the affidavit of opposition of Maulesio Seru. The purpose the endorsement required by Order 41 rule 9(2) is to give sufficient notice to the Court and the parties, as to on whose behalf a particular affidavit has been filed. In my view the endorsements found on the last page of both these affidavits serve the purpose of Order 41 rule 9(2).

[16] In the affidavits filed by the defendant and his son the jurats are found isolated in a different page although there is sufficient room at the end of the depositions to enter the jurat in both these affidavits. Paragraph 4.0 of the Practice Direction No. 2 of 1994 issued by the Chief Registrar reads as follows;

The Jurat (s) are not to be isolated overleaf from the rest of the contents of such documents as the affidavit, Justification of the Sureties or any other document that requires the signature of a Commissioner for Oaths.

[17] The question here is whether the Court can reject the affidavit on this ground alone. The practice directions referred to above are applicable to probate actions. However, it is a very good practice to follow also in other jurisdictions. But in my view this cannot be a ground to reject an affidavit unless the validity of the affidavit is challenged by the person who is alleged to have deposed the said affidavit. When the deponent admits that it is his signature that is found in the affidavit and the depositions are his there is no reason for the Court to reject such an affidavit.

[18] It is therefore my considered view that the learned Master has exercised her discretionary power correctly in allowing the affidavits of the defendant and his son to use as evidence although she has failed to give reasons for her decision.

[19] The learned Master in her judgment arrived at the following conclusions;

In this case, the defendant makes some very serious allegations in his affidavit which is supported by the affidavit of his son Rafaele, wherein the latter admits that the contents of the agreement, the transfer instrument and other documents pertaining to the sale and transfer of the property and subsequent payments, had not been explained to the defendant. Rafaele swears to having told the defendant that he (Rafael) had sold the land without defendant's approval and consent.

The contents of the Rafaele's affidavit, if proved, could indicate fraud in the manner in which the defendant was made to part with and the manner in which the Plaintiff gained ownership of the property. These, in my opinion, constitute triable issues which cannot be resolved summarily on affidavit evidence. I consider these issues must go to trial.

[20] Order 5 rule 4(1) of the High Court Rules provides that except in the case of proceedings which by these Rules or by or under any Act are required to be begun by writ or originating summons or are required or authorised to be begun by petition, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.

[21] The question here for determination is whether the evidence adduced by the parties by way of affidavits is sufficient for the Court to arrive at a determination on the dispute between them.

[22] The defendant does not deny having placed his thumb impression on the sale and purchase agreement [SB2]. It is his position that his thumb print was fraudulently obtained on the document by the plaintiff acting in collusion with his son.

[23] In paragraph 14 of the defendant's affidavit in opposition he states that after 2nd January 2014 he came to know from his granddaughter that he had to vacate this property but he has been careful not to mention the exact date. The defendant has not mentioned anything about the letter sent to him by the solicitors of the plaintiff on 06th August 2013, the notice to quit dated 02nd January 2014 and the reply to the notice to quit [SB5] sent by his solicitors on 07th January 2014 seeking a month's time to leave the property. In the affidavit he only denies the relevant averments in the plaintiff's affidavit and puts the plaintiff to strict proof of same but he failed to explain in his affidavit of opposition how his solicitor sent the letter seeking time to vacate the property which shows that at the time this letter was sent he was well aware of the transaction between him and the plaintiff and also that he had to leave the property and handover its vacant possession to the plaintiff.

[24] From the evidence contained in the affidavits of both parties and the documents tendered by the plaintiff it is clearly established that there is no truth in the position taken up by the defendant that the transaction which is the subject matter of this action had been done without his knowledge and concurrence.

[25] The son of the defendant in his affidavit states that the contents of the documents to which the defendant's signature was obtained was not explained to the defendant in Fijian language. The defendant's affidavit does not contain such an allegation. However, none of them say that the defendant had any compelling reason for him to place his thumb print on this document without first ascertaining its contents.

[26] Since the execution of the agreement is admitted, the burden of proving fraud is on the party who alleges fraud. A bare statement that a fraud has been perpetrated on him when the defendant's own conduct supports the contention of the plaintiff that he voluntarily executed the sale and purchase agreement, is not sufficient for the Court to arrive at the conclusion that the plaintiff had got the property in question transferred in her name fraudulently.

[27] The evidence adduced by way of affidavits is sufficient for the Court to safely arrive at the conclusion that the allegation of fraud is without merit.

[28] Before conclusion it is pertinent to refer to the provisions of Order 28 rule 9(1) of the High Court Rules which provides as follows;

Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if cause or matter had been so begun and may, in particular, order that any affidavit shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.

[29] When the learned Master was of the opinion that this matter should have been begun by way of writ of summons she should have made orders as provided for by the above provisions without dismissing the action which in my view should have been the proper course.

[30] For the reasons set out above I make the following orders.

[31] ORDERS.

1. The appeal of the Appellant is allowed.
2. The judgment of the learned Master is set aside.
3. The appellant is entitled to recover immediately the possession of the property in question which is described below;
   

Certificate of title No. 34724 being 'part of' that piece of land known as "Tamavua" and containing Two Hundred and Forty One Square Meters (241m2) be the same little more or less and situate in the City of Suva in the Island Of Viti Levu and being Lot 21 on Deposited Plan No. 7523.

4. The defendant shall pay the plaintiff $ 1000.00 as summarily assessed costs of this appeal.
   

....................................
Lyone Seneviratne
JUDGE