Gir v Attorney General of Fiji [2017] FJHC 745; HBC297.2002 (6 October 2017)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC Action No. 297 of 2002

BETWEEN

RAM GIR

AND

THE ATTORNEY-GENERAL OF FIJI

AND

FIJI SUGAR CORPORATION LIMITED
Counsel: Mr Vipul Mishra for the Plaintiff
N/A for the First Defendant
Mr Tomasi Tuitoga for the Second Defendant

R U L I N G

1. The background to this case is succinctly summarised in the Fiji Court of Appeal judgement which is reported in paclii (Gir v Fiji Sugar Corporation Ltd and Attorney General of Fiji [2010] FJCA 56; ABU0019.2009 (24 November 2010)).
2. Ram Gir has been occupying a half-acre piece of land in Rarawai Ba since 1973 (“Lot 287”). The land is described as Lot 287 Rarawai (CSR) which is the whole of the land in Certificate of Title 7822.
3. The Fiji Sugar Cooperation Ltd ("FSC") is the registered proprietor of Lot 287.
4. At some point in time, Ram Gir had sued the Attorney General of Fiji representing the Director of Lands, as well as FSC.
5. He was seeking either a freehold title or a registered lease over Lot 287.
6. Ram Gir had also sought injunctions to restrain the Attorney-General as well as FSC from dealing with Lot 287 in any way or from interfering with his possession.
7. The trial judge, Mr. Justice Finnigan, would dismiss Ram Gir’s claim for a title or a lease. Instead, Finnigan J ordered FSC to continue to give undisturbed possession of Lot 287 to Gir until an agreement was reached for Gir to vacate the land or until he vacated the land or until his death.
8. Gir appealed to the Fiji Court of Appeal. The FCA found that Gir and FSC had an oral instalment sale and purchase agreement and that FSC should transfer the title to Ram Gir.

19. These matters leave me in no doubt that the appellant bought Lot 287; he made a down payment of $26.00 and agreed to make instalment payments of $2.00 per annum. The fact that he calls it lease and made rental payments does not mean that he had entered into a lease with CSR.

20. I am fortified in this conclusion by the fact that it was only the appellant who gave evidence of the CSR notice and then his purchase of Lot 287 when he paid $26.00 and paid of $2.00 annually. There was no evidence from the other parties of any of these matters and the judge found the appellant to be an impressive witness with a good memory. These matters together with the facts found by the trial judge set out earlier confirm to me that the relationship between the appellant and CSR was that of an instalment purchaser and vendor.

21. I hold that if the sale and purchase agreement is seen as oral, it was nevertheless enforceable by the appellant under the doctrine of part performance : see McBride v. Sandland [1918] HCA 32; (1918) 25 CLR 69.

22. I am of the view that FSC should transfer title to the appellant of Lot 287.

9. The Court of Appeal however added that there should be a proper accounts between the parties.

22. .......However, there should be proper accounts between the parties. Given the record of FSC in dealing with this matter, I think the best course to follow is to refer the matter to the Master to expeditiously deal with it and use this judgment as a guide to determine what the proper accounts are between the parties. If in the final result the Master is of the view the appellant has not fully paid for the land, then, the appellant would have two choices:

1. he would be entitled to pay whatever is left to' make full and final payment and FSC would be obliged to transfer title to him forthwith or
2. if still money are owing to the purchase price, the appellant could decide to continue paying $2.00 per annum until is paid off.
   

WHAT WAS THE AGREED PURCHASE PRICE?

10. Before one can determine the two issues raised by the Fiji Court of Appeal, one must first determine what the sale and purchase price should be. I start with the observation that there was no agreed purchase price between Ram Gir and the Fiji Sugar Corporation. Having said that, I also note that there is nothing in the judgement of Finnigan J at first instance or in the Fiji Court of Appeal ruling on this point. As such, the question I then ask is: at what rate should the purchase price be set?
11. There is nothing in this regard in the submissions filed by Mr. Mishra for Ram Gir.
12. It is submitted for FSC that the value of the property in 1973 would have been $3,000. However, as at the date of the hearing, the market value was $26,520-00. These figures are based on a valuation by a Mr. Silio Koroi Toronibau who is a registered valuer at Northern Property Valuation & Consultant.
13. I accept these figures.
14. The question I then ask is which of the two should I accept to be the purchase price?
15. It is submitted for FSC that the price should be fixed at $26,520-00. However, if the Court is minded to set the price at the 1973 valuation, then FSC should be paid interest from 1973 (accumulated from 1973).
16. I am of the view that the purchase price should be fixed at the 1973 valuation and agree that FSC is entitled to interest.
17. I accept the authority of Fraser v Perpetual Trustees Estate and Agency Co. of New Zealand and Others [1978] 1 NZLR 620, a case cited by FSC’s counsel, where the New Zealand Supreme Court held:
    

In the absence of a stipulation to the contrary, if the vendor is not in default a purchaser in possession of the land is liable on an implied promise to pay interest on unpaid purchase money.

...........................

And at page 625:

The authorities on the rate of interest indicate, as I think, a desire by the court to fix a percentage which will, over a reasonably long period, afford or represent a fair return on the monies held by the party to be charged. They involve, though seldom expressly, an attempt to reconcile two conflicting desiderata. The first is the desirability of allowing a rate of interest which will reflect the fair market return on money invested in a manner which affords security. The second is the desirability of achieving certainty and uniformity and thereby avoiding litigation at frequent intervals. This calls for a fixed rate over a lengthy period of time.

18. In Birch v Joy (1852) 3 HLC; 10 ER 222 (a case cited also by FSC’s counsel) the Court said:
    

It is a general rule of equity , that if a purchaser is in possession of an estate, receiving the rents, he is liable to pay the purchase money, and that the purchase-money being retained by him will carry interest to be paid by him to the seller.

19. FSC’s solicitors submit that the interest rate should be calculated at 7% which they submit, was the rate that the court favoured in Fraser v Perpetual Trustees.
    

HOW MUCH HAS BEEN PAID?

20. The plaintiff has paid $26 being the down payment.

AMOUNT OWED BY THE PLAINTIFF

21. I calculate the amount owed by the plaintiff as follows:
    

Purchase Price based on 1973 valuation	$3,000
Interest for the years 1973 to 2017	7% of $3,000 = $210 $210 x 44 years = $9,240 $3,000 = $9,240 = $12,240
Amount Already Paid	$26
Balance Owing	$12,240 less $26 = $12,214

CONCLUSION

22. I find that the balance owing by Mr. Ram Gir to the FSC is $12,214. Ideally, the appellant should settle this amount in full once and for all. However, the Fiji Court of Appeal has said that it is open to Mr. Ram Gir:

if still money are owing to the purchase price, the appellant could decide to continue paying $2.00 per annum until is paid off.

23. To pay off the balance price at the rate of $2.00 would take forever and could merely attract further interest in favour of FSC on the principle in Fraser v Perpetual Trustees (supra).
24. I am of the view that, if Mr. Ram Gir is unable to settle the sum of $12,214 in full, he should still be allowed to pay off the sum by instalments at a rate reasonable for him in his circumstances. The parties should be encouraged to reach an agreement on the mechanics of settlement including the mode of payment and on who should bear any tax or duty payable (if any) on the transaction, and an agreement or a terms of settlement to be filed in Court accordingly for endorsement.
25. Parties at liberty to apply.
    

..................................

Anare Tuilevuka

JUDGE

06 October 2017