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Ali v Kasim [2016] FJHC 135; HBC193.2007 (2 March 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA, FIJI ISLANDS


CIVIL CASE NO.: HBC 193 OF 2007


BETWEEN :


MOHRAM ALI father's name Ibrahim of Wairuku, Rakiraki, Fiji, Driver as the executor and trustee of the Estate of Abdul Rahiman and in his own right.
PLAINTIFF


AND :


MOHAMMED KASIM son of Abdul Rajeet formerly of Wairuku, Rakiraki, Fiji but presently of 2827 E Hampton Way Fresno, United States of America, Farmer.
1st DEFENDANT


AND :


ROSHAN ALI SHAH son of Mohammed Kasim formerly of Wairuku, Rakiraki, Fiji but presently of 2827 E Hampton Way Fresno, United States of America, Mechanic.
2nd DEFENDANT


AND :


DILHRA ALI son of Mohammed Kasim formerly of Wairuku, Rakiraki, Fiji but presently of 2827 E Hampton Way Fresno, United States of America, Driver.
3rd DEFENDANT


AND :


KHIRUL NISHA daughter of Saiyad Hussein formerly of Wairuku, Rakiraki, Fiji but presently of 2827 E Hampton Way resno, United States of America, Domestic Duties.
4th DEFENDANT


AND :


REGISTRAR OF TITLES
5th DEFENDANT


Appearances:
Ms. Natasha Khan for the Plaintiff
Mr Kevueli Tunidau for the 1st to 4th Defendants
Ms. Mary Lee for 5th Defendant


JUDGMENT


1.0 Introduction

1.1 By his Statement of Claim dated 4th July, 2007 the Plaintiff in this action claims

the following reliefs against the Defendants.


(a) For an Order that the purported transfer executed by the 1st Defendant in favour of the 4th Defendant and registered in respect of Certificates of Title number 32617 be set aside;

(b) For an Order that the purported cancellation of Certificate of title number 32617 be set aside;

(c) For an Order that the purported Partial Transfer of Certificate of Title number 32617 from the 4th Defendant to the 2nd Defendant be set aside;

(d) For an Order that Certificate of Title number 37432 issued in favour of the 2nd Defendant be cancelled;

(e) For an Order that the purported Partial Transfer of Certificate of Title number 32617 from 4th Defendant to the 3rd Defendant be set aside;

(f) For an Order that Certificate of Title number 37434 issued in favour of the 3rd Defendant be cancelled;

(g) For an Order that a new Original Certificated of Title number 32617 be created reflecting caveat number 51287, application for removal of caveat number 540226 endorsed but not registered, Court order number 542654;

(h) For a declaration that neither the 2nd, 3rd, 4th Defendants cannot claim to have acted bona-fide in the relevant matters;

(i) For an Order that the 2nd Defendant do forthwith deliver vacant possession of Lot 1 on DP 8991 to the Plaintiff;

(j) For an Order that the 3rd Defendant do not interfere with the Plaintiff's quiet possession of Lot 2 on DP 8991;

(k) The Defendants not in anyway, manner or form interfere with the Plaintiff's possession of Lots 1 and 2 on Deposited Plan 8991 and be restraint from any further dealing on the two said Lots;

(l) For an Order that the 1st Defendant specifically perform agreements entered into on the 8th day of July 1992 and 27th day of June 1992 with the late Abdul Rahiman and the Plaintiff;

(m) Special damages, particulars of which will be supplied at trial;

(n) General Damages (including Punitive, Aggregated and Exemplary damages);

(o) Interest on all damages at the Reserve Bank commercial lending rate;

(p) Costs on a full solicitor client indemnity basis;

(q) Such further and other reliefs this Honourable Court deems.

2.0 The Statement of Claim

2.1 The Plaintiff states in the Statement of Claim inter alia the following facts.

3.0 Statement of Defence and Counter Claim of 1st, 2nd, and 3rd and 4th Defendants.

states in their Statement of Defence that the Plaintiff and the said Abdul Rahiman went into possession of the Defendant's property without any sub-divisional approval and that the said Abdul Fareed is a trespasser on the Defendant's property. They also state that the agreement made is null and void as there was no prior consent of the Director of Sub-division of Lands Board.


3.2 The Defendants state further that the Caveat registered over the Title was removed.

3.3 The Defendants pray that the Plaintiff's claim be dismissed with costs.

3.4 In their Counter Claim Defendants state that the Plaintiff and Abdul Rahiman went into possession of the Defendant's property and built upon the same without any prior approvals thereby rendering the said agreement null and void.

3.5 They also state that they have demanded that the Plaintiff and the said Abdul Rahiman and/or his successors and/or assigns or nominees do give vacant possession of all that piece of property contained within the Defendant's respective Certificate of Titles and the Plaintiff and the said Abdul Rahiman and/or assign and/or his servants and/or nominees refuse to do the same; therefore the Defendants have suffered loss and damages.

3.6 The Defendants by their Counter Claim against the Plaintiff claim an Order that they be given vacant possession of all that piece of property contained within the Defendant's respective Certificate of Title. General damages for trespass and Nuisance and Cost on Solicitor Client indemnity basis.

4.0 Amend Statement of Defence of the 5th Defendant

5.0 The Trial

PW 1 - Mohram Ali (The Plaintiff)

PW2 - Roslyn Shahenas Nisha

PW3 - Abdul Fareed


5.2 The witnesses called by 1st to 4th Defendants were;

DW1 - Mohammed Kasim (1st Defendant)

DW2 - Khirul Niha (4th Defendant)


5.3 The witness called by the 5th Defendant.

5DW1 - Ms. Torika Goneca (Acting Deputy Registrar of Titles)


6.0 Evidence of the Plaintiff's Witnesses

Evidence of the Plaintiff's Witnesses are summarized as follows:


6.1 PW1: Mohram Ali


(i) PW1 said that he is the executor and Trustee of the Estate of Abdul Rahiman and brings this action as the executor and Trustee of deceased Abdul Rahiman and his own rights. He and his brother Rahiman paid for the land and he has got the receipts to acknowledge payments. He came to know that the land was transferred to two children of the 1st Defendant when his things were thrown out from the house.


(ii) In answer to cross-examination he said he and his brother paid for the land as per Clause 2B of the agreements and the Defendants Lawyer Diven Kumar issued receipts for the payments. When he was asked whether he can show that Diven Kumar issued the receipt (MA2) Plaintiff said Diven Kumar wrote it and signed it. When he was questioned about the signatures on the receipts he said the two signatures were the 1st Defendant's and the Solicitor's signatures.


(iii) He admitted in evidence that at the time of executing the agreement (2MA 9) the land was not surveyed and after subdivision his block was identified. He said Lot 1 was his brother Rahiman's and Lot 2 is his land.


(iv) When it was put to him that the signature appearing on the agreement is not the 1st Defendant's signature the Plaintiff said it's the 1st Defendant's signature witnessed by Mr Diven Kumar.


(v) When the Plaintiff was asked whether he was aware that the 1st Defendant transferred the land to his wife after the survey the Plaintiff said he has bought the land and how can the 1st Defendant transfer. He also said that he bought the land before the Title was transferred to the 4th Defendant and he is alleging fraud as the 1st Defendant gave the land to his children and not to him.


(vi) When it was put to him by the 5th Defendant's Counsel that there is no evidence of fraud the Plaintiff said "how was the transfer done'?


(vii) In re-examination the Plaintiff said that the transfer dated 5th

December, 2003 contains many memorials and the copy obtained in 2005 shows nothing. He also said that he is aware of the Registrar of Titles admission that the Title (2MA5) is a fraud and not the original document.


(viii) The Plaintiff said further that he never received a notice to vacate and also that the 1st Defendant never gave a notice to cancel the agreement.


6.2 PW2 Roslyn Shenan Nisha


(i) PW2 said in her evidence in chief that Fareed was her husband and the

Plaintiff is her father in law. She said that they resided at the Plaintiff's house till a bailiff came and chased her out on 19th June, 2007 and as a result of it some of her belongings were damaged.


(ii) When it was put to her in cross-examination that her husband lived on

1st Defendant's land she said the land did not belong to Kasim's wife it was Kasim's land and it was under a Caveat.


(iii) She said she did not complain to the Police about the damage of

household items which amounted to $3000.00. When asked how she arrived at the figure $3000.00 she said she bought the items 7 years ago and who keeps the receipts.


6.3 PW3 Abdul Fareed

Court and asked for possession but withdrew the case thereafter. He said no notice was served on them before they were evicted from the land.


(ii) In answer to cross-examination he said his uncle Rahiman bought the

land and gave the house for them to occupy before his death.


  1. Evidence of the 1st to 4th Defendants Witnesses. (Summary)

Development Bank and it was uplifted from the Bank by Mr D. Kumar in order to transfer it to the 4th Defendant.


(v) In answer to cross-examination the DW1 said the signature appearing on the acknowledgment MA2 is not his signature. When he was shown Affidavit sworn by him on 28th October, 2006 (2MA8) he said he can't remember whose signature is on it and it may be a fraud. When it was put to him whether he is saying Solicitors D. Kumar, Haroon Ali Shah and Vijay Naidu were liars he said maybe that Mr Shah put a wrong date by stating in the Affidavit that he was the registered proprietor of the land in 2006.

(vi) He also said in reply to cross-examination that his Solicitor D. Kumar prepared the Transfer to his wife and that the Title was lost when it was in the possession of Mr Kumar. When the Affidavit in response sworn by him on 28th June, 2007 was shown to him he said he doubts whether it's his signature. Later he admitted it was his signature and said that he has two types of signature.

(vii) When it was put to him that the Mortgage shown in 2MA6 has not been discharged he said he doesn't know about it.

(viii) When the witness was asked whether Solicitor D. Kumar's clerks in her Affidavit says she received instructions to Transfer the land to DW1's wife he said yes. But when he was asked whether she says in the Affidavit that the Title was returned as there was a Caveat, he said he had no idea about it. When he was asked whether this clerk is lying he said "maybe".

(ix) He said further that he does not know how the land was transferred. When he was asked how did the Duplicate Title go from his possession to the Registrar of Titles, DW1 said it went through his Solicitor. He accepted that his Title was mortgaged to the Fiji Development Bank. When he was asked why the said Charge is not shown in the Title and there is no signature in the 1st Memorial, he said it's not his problems. He denied giving a hand written acknowledgment for any payments made by the Plaintiff.

(x) He also stated that he gave instructions to his Solicitors to take steps to remove the Plaintiff's from the land or repay the deposit which he received.

(xi) When he was asked about Ishwar Lal he said he did not sell him a land. When it was put to him that there is a High Court Order to extend a Caveat taken out by Ishwarlal he said he doesn't know anything about it. When it was put to him that he was represented by a Solicitor in the said case he said nobody told him about it. When he was asked whether he wanted the Caveat to be removed he said his Solicitor D. Kumar made the application.

(xii) When he was shown 2MA5 the Title under his name bearing serial No. 18324 he admitted it's in his wife's name and the Caveat has been removed. When he was asked how did he remove the Caveat and did the Transfer he said his Solicitor did it and it's the Solicitors job. He denied that he took the duplicate of the Title and lodged it in the Registrar of Titles in collusion with a person from that office.

(xiii) In answer to 5th Defendant's Counsel he admitted that the documents were returned by the Registrar of Title due to the Caveat but said he was not aware that the Caveat was extended.

7.2 DW2 Khirul Nisha – 4th Defendant


(i) DW2 said that she was aware her husband had a Title to a land at Rakiraki; but denied having signed any documents to Transfer. She said she transferred the Title to her children after she got the Title from her husband.

(ii) In cross-examination she admitted having signed one document. She also admitted that the land was given not only to her two sons but several others as well. When she was asked about the payments made by the Plaintiff on the Agreements, she said she is not aware of such payments.

(iii) When it was put to her that she made a false declaration that she lost her Title she said she is not educated, the declaration was given to her and she signed it.
  1. Evidence of the 5th Defendant (Summary)

8.1 5DW1 Torika Goneca – Acting Deputy Registrar of Titles


(i) The Acting Deputy Registrar said that there is no Caveat registered in the Title Copy No. 18324 which is in possession of her office. She also admitted the Title which was returned for correction had a Mortgage registered on it. She also admitted that there is a Caveat registered on the Title and it has been extended. She said till to date she doesn't know where the Original Title is.

(ii) In answer to cross-examination she said Title bearing serial number 18324 which is presently with the Registrar of Titles should have been with the Title holder as the even number Certificates are issued to them.

(iii) She also revealed in evidence that purported Transfer was returned twice for corrections and it was never re-lodged. When she was asked then how do they have a copy with Registrar's signature she said it looks like a forged signature and also that the discharge of the Mortgage which is endorsed in the memorial is not signed by the Registrar.

(iv) She admitted in evidence that the serial number of the Original Title is No. 18323 and it cannot be taken out without the assistance from somebody from her office.

(v) When it was put to her that somebody in her office would have removed the Original she said she cannot comment and in 2006/2007 people had access to a table which was inside their office. When she was asked why 10 people of their office could not detect about the removal of the Original Title and whether it was due to their negligence or corruption she said it's due to negligence of their office.

(vi) She was questioned on the alterations made on the Partial Transfer marked FRE3 which were not initialled by the Solicitors. She admitted that they shouldn't have accepted document with such alterations.

(vii) When she was asked whether Title No. 32617 still exists she said it has been cancelled and the cancellation is stamped in the front page. But when it was shown to her that it does not have the Registrar's signature she said the Title is not cancelled. When it was put to her that she does not know what happened to 19 acres of land that she is in charge, she remained silent without answering the question.

(viii) She said she is aware only registered proprietor can make an application for Provisional Title. When she was asked then how did the 4th Defendant allowed to make an application she said it was with the documents she submitted. When it was put to her that the 4th Defendant would have never made an application as she was not the registered proprietor the witness said it was the Registrar then who has signed the application.

(ix) In answer to cross-examination by the Learned Counsel for 1st to 4th Defendants the 5DW1 said Original Title doesn't leave the Registrar's Office at any time and that the Original Titles are bound and kept.

(x) She said further that the cancellations of the Mortgage has not been signed by the Registrar.

(xi) When she was asked whether Certificate of Title No. 18324 is the duplicate Title or the Original she said it is the Duplicate held as a Original by the Registrar of Titles.

(xii) She admitted that she cannot verify whether the signature appearing in the Memorial of the Title is forged or not and that can only be done by the Registrar who held office at that time. When it was put to her whether paragraph 4 of the Amended Statement of Claim of the 5th Defendant is incorrect according to what she says she said it's correct and the signature is forged. But she admitted she is not an expert to say that. She also admitted that she does not have a Affidavit from the former Registrar to say that it's a forged signature.

(xiii) She said further that the Duplicate Title received by her office is not a operational one but it is validated by her office by entering the names of interested parties.

(xiv) In answer to re-examination 5DW1 said at the time of the Provisional Title, 4th Defendant was the Proprietor but they were informed of the error by the Attorney General' Office.

9.0 Analysis and Determination


9.1 It is clear from the evidence as summarised above that the Original Title of the 1st Defendant bearing No. 32617 has been replaced with a Duplicate Title in a fraudulent manner. The Deputy Registrar of Titles who gave evidence on behalf of the Registrar of Titles admitted that it has been done by someone with the assistance of one of their officers and they have been negligent in not finding about it. The evidence revealed that the Title had been transferred to the 4th Defendant in a fraudulent manner when the Original Title was not with the Registrar of Titles. The 5th Defendant could not have issued Provisional Title to the 4th Defendant based on the Duplicate Title. Therefore I find that the 5th Defendant has acted in violation of the provision of the Land Transfer Act when he cancelled the Title No. 32617 of the 1st Defendant when the Original Title was not in the possession of the Registrar of Titles Office.


9.2 It transpired in evidence that there is a Caveat in place which is issued by the High Court of Lautoka and it has been extended till the determination of the case filed by one Ishwarlal. Though the 1st to 4th Defendants say that the said Caveat is removed there is no evidence to prove such removal. By removing the Original Title from the 5th Defendant's Office the extended Caveat registered on it has also been fraudulently removed. It is clear that the 1st Defendant has acted in a collusion with someone from the 5th Defendant's office and got the Original Title removed and replaced the same with the Duplicate Title he had in his possession.


9.3 It is difficult to believe that the 2nd, 3rd and 4th Defendants were not aware of the fraudulent act of the 1st Defendant as all of them were family members. The 4th Defendant the wife of the 1st Defendant has applied for the Provisional Title stating that the Title is lost. She revealed in evidence that she was not aware of anything but their Solicitors got the forms signed by her. I cannot believe that the 4th Defendant had signed the documents without any knowledge about the declaration.


9.4 In anaIysing the evidence as above, it is clear that the 2nd to 4th Defendants were aware of the Caveat on the Title and also the Agreements entered into sell parts of the Title to the late Abdul Rahiman and to the Plaintiff. Therefore I hold that the Defendants have acted in collusion with the 1st Defendant in removing the Original Title from the 5th Defendants office and replacing the same with the Duplicate Title that the 1st Defendant had in his possession.


9.5 Furthermore, it is revealed by the evidence of the Deputy Registrar of Titles that the Original Title has been replaced in an unlawful manner. Section 27(1) of the Land Transfer states that the Registrar may cause another instrument to be prepared and to be endorsed with all the entries made in the Original instrument so far as can be ascertained from the records on the register if he is satisfied that the Original Instrument of Title in the register has been lost or destroyed or has become defaced or illegible. In this case there is no such Order by the Registrar to cause another instrument to be prepared to replace the Original Title. It has been done without authority in a fraudulently manner. Therefore I hold that issuing a Provisional Title to the 4th Defendant who was not the Proprietor of CT No. 32617 is illegal and void. I also note that the 4th Defendant has submitted a declaration to obtain the Provisional Title in which she has deposed that she is the registered Proprietor of CT. No. 32617. This is I find in a false declaration given to the 5th Defendant's office to obtain the Provisional Title.


9.6 Due to the reasons as set out above I also hold that the subsequent Transfer Numbers 37434 and 37432 executed in favour of the 4th Defendants sons were also null and void and should be set aside.


9.7 I will now deal with the next issue of this case; that is to determine whether the Plaintiff and late Abdul Rahiman have fulfilled the condition of the Agreements by paying the full purchase price.


9.8 The Plaintiff submitted in evidence two acknowledgments (MA2 and 2MA 10) signed by the 1st Defendant and his Solicitor where it is acknowledged that the full purchase price for the lands have been paid.


When the 1st Defendant was shown these acknowledgments he said that the signatures appearing on the acknowledgments are his signatures. He also said that the Plaintiff and late Abdul Rahiman did not pay the balance purchase price.


9.9 When he was questioned to what action he took when the Plaintiff and late Rahiman did not pay he said he gave instructions to Solicitors to send notices to Plaintiff and Rahiman and take legal action to evict them.


There is no evidence before me to prove that any such action has been taken by the 1st Defendant's Solicitors. If the Plaintiff and Rahiman did not pay the purchase price question arises why the 1st Defendant Solicitors did not send notices to them terminating the agreement and initiate legal proceedings to evict them. As such it is difficult to believe the 1st Defendant's version that Plaintiff and Rahiman failed to pay the balance purchase price and the acknowledgments given are not signed by him.


Therefore, on a balance of probabilities I find that the Plaintiff and Abdul Rahiman had infact paid the purchase price according to the Agreements but the 1st Defendant had acted in collusion with the other Defendants to fraudulently avoid the interest of the Plaintiff and Abdul Rahiman.


9.11 Next issue to be determined in this matter is whether the Plaintiff is

entitled to an Order for specific performance of the Agreements entered into with the 1st Defendant on 8th July, 1992 and 27th June, 1992.


9.12 It is pertinent to note the conditions of the said Agreements to see

whether there is an entitlement for the Plaintiff to obtain an Order for specific performance against the 1st Defendant.


9.13 Clause 10 of the Agreement dated 8th July, 1992 between the 1st

Defendant and late Abdul Rahiman reads as follows:


THAT if the Purchaser shall make default in complying with all or any of the stipulations in this Agreement any deposit paid may at the discretion of the Vendor be forfeited to the Vendor and the premises resold and the Purchaser shall be liable to pay on demand to the Vendor the expenses and loss (if any) attending to such resale deducting the amount of any deposit and a sum of $4,700.00 (FOUR THOUSAND AND SEVEN HUNDRED DOLLARS) as liquidated damages. AND LIKEWISE if after the execution of this Agreement the Vendor refuses to sell the said land, he shall refund the deposit and pay for all the expenses, costs and loss (if any) incurred by the Purchaser and in addition pay a sum of $4,700.00 (FOUR THOUSAND AND SEVEN HUNDRED DOLLARS), as liquidated damages.


[emphasis added]


9.14 Clause 10 of the Agreement dated 27th June, 1992 between the 1st Defendant and the Plaintiff is similar to the aforementioned Clause appearing in the Agreement between the 1st Defendant and Abdul Rahiman.


9.15 Clause 10 of the Agreements as mentioned above contains express provisions for the Vendor to refund the deposits and pay all the expenses, costs and loss incurred by the Purchaser and in addition pay a liquidated sum as damages to the purchaser if he refuses to sell the lands. As determined herein before it is evidentially proved that the Purchasers have paid the purchase price according to Clause 10 of the Agreements. Then question arises to whether specific performance could be ordered against the 1st Defendant due to the aforesaid express provision contained in both Agreements.


9.15 I.C.F. Spray in his work on The Principles of Equitable Remedies 6th ed. (2001) P74, 75 and 76 says as follows:


EXPRESS PROVISIONS FOR DAMAGES OR FOR SPECIFIC PERFORMANCE


"Often it is found that a contract contains a provision that if a particular event should occur damages, which are sometimes provided to be an agreed or liquidated amount, are to be payable by the person in default. In such cases it is necessary to establish by the ordinary process of construction which of two positions the parties have intended should come about. It may, on the one hand, have been intended that the party in default should have an option either to perform the terms in question or else to pay an amount of money, and if so, specific performance of those terms will not be ordered contrary to his wishes, not because damages are a sufficient remedy, but because there is no absolute obligation at law to perform them. An intention of this kind is not often found; but if, for example, there is contained in a lease a provision requiring either a particular covenant to be performed or else recompense at a stated rate or of a stated amount to be paid, sometimes the proper construction is that alternative methods of performance have been provided for. A similar intention is sometimes discovered where the material provision for damages is not part of the contract sought to be enforced but is contained in a separate agreement or in a collateral deed. On the other hand, it may appear that the material provision for damages has been inserted for the benefit of the injured party, so as to add to or render more definite the remedies that are open to him; and in such cases to the Plaintiff is not compelled to accept damages under the special provision, but an order of specific performance or an injunction may be granted if, as a matter of discretion, it is held otherwise appropriate. So clauses in contracts for the sale of land that are intended, in defined circumstances, to confer rights on vendors to recover damages are not usually construed as denying them the right to insist on performance in specie of the remaining terms, so as to confine them to damages."

[emphasis added]


9.16 In Long v Bowring (1864) 33 Beav.585 [1864] EngR 607; 55 ER 496 it was held when a

contract contains a express provision for payment of damages it will not disentitle the Plaintiff insisting on having specific performance of the Contract. All that is fixed by such a Clause is that if the Plaintiff brings an action for damages amount to be recovered is specified.


9.17 The question arises at this point whether party injured by a breach of a contract is entitled to obtain both a stipulated amount as damages and also enforcement in specie of other obligations contained in the contract.


9.18 I would refer to a paragraph in Sprays aforementioned work "The Principles of Equitable Remedies 6th ed." at page 76 he says:


"Further, often it appears on the proper construction of the material contract that a party injured by a breach is entitled to obtain both a stipulated amount and also the enforcement in specie of other obligations contained in the contract. Indeed, it may be stated generally that a Plaintiff does not lose the right to obtain damages at law for an injury caused to him merely because he has insisted upon performance in specie and has, moreover, obtained an injunction or an order of specific performance. However in such cases no duplication of relief is permitted; that is to say, to the extent that the performance in specie of an act continues to be required no damages will be awarded in substitution for its performance. Generally there is no difficulty in awarding damages for past breaches and specific enforcement as to the future, or, in appropriate cases, in awarding damages as to part of the ambit of an obligation and specific performance as to its remaining ambit, subject, of course, to various discretionary considerations. However a difficulty of duplication will sometimes arise if liquidated damages provided for in a special clause extend to future obligations that are sought to be enforced in species; and here if the Plaintiff wishes to obtain damages in addition to enforcement in specie he will be required to establish them without relying on the special clause in question."

[emphasis added]


9.19 In the light of the principles laid down in the above authorities I am of

the opinion that the Plaintiff in this case is entitled to a decree for specific enforcement of the agreement as to the future as well in addition to a decree for damages for the past breaches.


10.0 Damages

10.1 I will not determine on the quantum of damages to be awarded to the
Plaintiff by this Judgment. The matter is referred to the Master's Court to determine Special and General Damages and the interest on all damages.


11.0 Conclusion

11.1 In analyzing the evidence led at the Trial I find the Plaintiff's evidence
credible and supported by documentary evidence to establish the Claim against the Defendants on balance of probabilities. Furthermore, I find that the 1st to 4th Defendants have failed to establish their Counter-Claim and therefore it ought to be struck out. Accordingly I make the following orders.


(a) The transfer executed by the 1st Defendant in favour of the 4th

Defendant and registered in respect of Certificate of Title number 32617 is set aside;


(b) The purported cancellation of Certificate of Title number 32617 is set aside;

(c) The purported Partial Transfer of Certificate of Title number 32617 from the 4th Defendant to the 2nd Defendant is set aside;


(d) The Certificate of Title number 37434 issued in favour of the 2nd

Defendant is cancelled.


(e) The purported Partial Transfer of Certificate of Title number 32617 from the 4th Defendant to the 3rd Defendant is set aside;


(f) The Certificate of Title number 37434 issued in favour of the 3rd

Defendant is cancelled;


(g) 5th Defendant is ordered to create a New Original Certificate of

Title number 32617 reflecting Caveat number 51287, application for removal of Caveat number 540226 endorsed but not registered, Court order number 542654;


(h) Declaration that neither the 2nd, 3rd or 4th Defendants cannot claim to have acted bona fide in the relevant matters is granted.


(i) The 2nd Defendant to forthwith deliver vacant possession of Lot 1 on DP 8991 to the Plaintiff;


(j) The 3rd Defendant do not interfere with the Plaintiff's quite

possession of Lot 2 on DP 8991;


(k) The 1st to 4th Defendants not in anyway, manner or form interfere with the Plaintiff's possession of Lots 1 and 2 on Deposited Plan 8991 and be restraint from any further dealing on the two said Lots;


(l) The 1st Defendant to specifically perform agreements entered into on the 8th day of July, 1992 and 27th day of June, 1992 with the late Abdul Rahiman and the Plaintiff.


(m) The Plaintiff is entitled to Special and General Damages and interest on all damages. Damages to be determined by the Hon. Master of High Court, Lautoka.


(n) The 1st to 4th Defendants shall pay the Plaintiff costs summarily assessed in a sum of $3,500.00. No order for costs against the 5th Defendant.


(o) The Counter-Claim of the 1st to 4th Defendants is dismissed and

struck-out.


(p) The matter to be referred to the Master's Court for Assessment of Damages.


Lal S. Abeygunaratne
[Judge]


At Lautoka
02nd March, 2016

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