Kumar v Kumar [2018] FJHC 750; HPP06.2010 (17 August 2018)

In the High Court of Fiji at Suva
Civil Jurisdiction
HPP Action No. 06 of 2010
L.A. No. 18522
Between
Arun Kumar and Adit Kumar
Plaintiffs
And
Anoop Kumar
Defendant

Counsel: Mr A. Singh for the plaintiff
Mr R.Singh for the defendant
Date of hearing: 14^th August 2018

Date of Ruling: 17^th August 2018

Ruling

1. By summons filed on 15^th June 2018 ,the plaintiffs seek the following relief:
   • (i) An injunction directed at the Defendant to hand over all documents titles leases and other instruments currently in his possession or control and further attend to other matters necessarily connected with or arising therewith so as to obtain the consent of the Director of Lands to the proposed transfer documents that will facilitate the registration of the transfer of State Lease No. 717923 [or its successor lease] to the Plaintiffs or their solicitors and in all manner co-operative with and assist the Plaintiffs to achieve the registration of the transfers in the name of the Plaintiffs and other beneficiaries in compliance with the Order of the Court pronounced on 15^th July, 2015.
   • (ii) Further or alternatively an order that the Defendant by its solicitors perform such tasks deed that are necessary to give effect to the Order of the Court and so as to transfer to the Plaintiffs and other beneficiaries the Lease No. CL 717923. Such conveyance to take place expeditiously and with weekly reporting of the progress therewith to the Plaintiffs or their solicitors and periodic reports to the Court.

The application is made in terms of Or 29, r 1:

2. The affidavit in support of the second plaintiff states as follows:
   • (a) the defendant has failed to comply with my judgment of 15^th July 2013, and transfer the balance of the estate to the beneficiaries;
   • (b) the plaintiffs and three other beneficiaries have executed and submitted the necessary documents to the solicitors for the defendant to facilitate the transfer;
   • (c) the plaintiffs have not been given any satisfactory report as to the progress in the matter;
   • (d) the office of the Director of Lands has informed him that no formal application has been lodged for his consent;
   • (e) there has been an inordinate delay in the completion of the transfer by the defendant. Since 2015, the defendant is not interested in transferring the property.
   • (f) he gives the usual undertaking to the Court as to damages.
     
3. The defendant, in his affidavit in reply states that his solicitors are in the process of lodging the application for consent with the Director of Lands. He has sent the transfer papers to each of the six beneficiaries. The solicitors for the plaintiffs have sent the required Tax Identification Numbers (TIN) for only five beneficiaries. On 23^rd May 2018, his solicitors sent an email updating the solicitors for the plaintiff and attached an email from Nadi Town Council. On 5^th July 2018, his solicitors sought the required papers for lodgment of consent with the Director of Lands and the consent fee of $545.00, from solicitors for the plaintiff. On 10^th July 2018, his solicitors received an email from solicitors for the plaintiff stating that the consent of the Director of Lands is not required. The defendant’s solicitors have advised him that consent is required. He has not delayed the transfer. The plaintiff has delayed in providing documents requested by his email of 5^th July 2018.
   
4. At the hearing, Mr R. Singh, counsel for the defendant submitted that the affidavit in reply filed by the plaintiffs has not been served on him nor his agents. Mr A. Singh, counsel for the defendant was unable to establish that the affidavit had been served.
   

The determination

5. The plaintiffs seek an injunction for the defendant to hand over all documents, titles, leases and instruments in his possession and obtain the consent of the Director of Lands, to facilitate the registration of the transfer of State Lease No. 717923 to the plaintiffs and other beneficiaries in compliance with my Orders of 15^th July 2015. Further or alternatively, an order that the defendant by its solicitors perform tasks necessary to give effect to my Order.
   
6. On 15^th July, 2013, I delivered judgment in this case and made the following Orders:-
   1. The defendant shall provide the plaintiffs with full and complete accounts of the income and expenditure on the farm and all monies received on sale of land within 14 days of this judgment.
   2. The distribution of the balance of the estate to the beneficiaries shall be completed within three (3) months from the date of this judgment.
      
7. On 21^st March, 2017. I found the defendant guilty of contempt of court and fined him $ 5000. The defendant was ordered to comply with my judgment and distribute the estate to the beneficiaries within a period of 60 days. In default, he was committed to prison for a period of three months. On 21 November 2017, the plaintiffs withdrew their second application for committal of the defendant.
   
8. The dispute between the parties was finally decided and concluded on 15^th July, 2013. It is trite law that a final judgment of a court cannot be reopened. The principle of functus officio applies An injunction does not lie, when the substantive matter has been concluded, as quite correctly submitted by Mr R. Singh.
   
9. In In re St Nazaire Company, (1879-80) 12 Ch d 88 it was held that a Judge of the High Court has no jurisdiction to rehear an order, whether made by himself or by any other Judge, the power to rehear being part of the appellate jurisdiction.
   
10. In VMG Holdings Limited, [1941] All ER 417 as cited by Mr R. Singh it was held that where a Judge has made an order for a stay of execution, he is functus officio, and neither he nor any other Judge of equal jurisdiction can vary the terms of such stay. The only means of obtaining any variation is to appeal.
    
11. Finally, I would cite Lord Wiberforce in Ampthill Peerage, [1977] AC 547 at pg 569 as follows:

English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes...Any determination of disputable fact may, the law recognizes, be imperfect; the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.

12. The plaintiff’s application for an injunction fails.
    
13. Orders

(a) The summons of the plaintiffs is declined.
(b) The plaintiffs shall pay the defendant cost summarily assessed in a sum of $ 1500 within 14 days of this Ruling.

A.L.B. Brito-Mutunayagam
Judge
17^th August, 2018