Goverdhan v Chand [1957] FJLawRp 15; [1956-1957] 5 FLR 92 (23 October 1957)

[1956-1957] 5 FLR 92

IN THE SUPREME COURT OF FIJI

Civil Jurisdiction

Civil Action No. 210 of 1956

1. GOVERDHAN
2. RAM RATTAN
Plaintiffs

v.

GOPI CHAND, F/N SAMODH
Defendant

Mining Ordinance, Cap. 127-partnership agreement requiring noting under s. 119 (3)-no right of action thereon until noted.

The Plaintiffs sought to enforce a partnership agreement to which Section 119 of the Mining Ordinance, Cap. 127, applied. Section 119 (3) provides as follows:-

"Every document to which this section applies shall be presented to the Board for noting together with a certified copy which shall be retained by the Board and, until noted, each such document shall be void and of no effect, and no document shall be noted unless it is stamped to the satisfaction of the Commissioner of Stamp Duties.

Every document comprised in this section shall be presented for noting and, where necessary, for registration within twenty-one days of the date thereof:

Provided that the Board may, at its discretion on reasonable cause being shown, extend the time for noting or registration."

The Plaintiffs had commenced their action upon the partnership agreement before the latter document had been noted in accordance with this subsection.

Held.-Until the document had been noted the Plaintiffs had no right of action, and the subsequent noting of the document by the Mining Board could not affect the position retrospectively.

H. A. L. Marquardt-Gray for the Plaintiffs.

V. R. Singh for the Defendant.

HAMMETT, J. [23rd October, 1957]-

The Plaintiffs' claim in this case rests upon the construction of the terms set out in a document to which, it is admitted by counsel for both sides, the Mining Ordinance, Cap. 127, section 119 applies.

This document has been admitted by consent as Exhibit A. It was executed on 3rd September, 1956.

The material part of section 119 (3) is as follows:-

"Every document to which this section applies shall be presented to the Board for noting . . . . and, until noted, each such document shall be void and of no effect, etc."

The writ was however issued on 13th October, 1956, and it is submitted by learned Counsel for the defendant as a preliminary objection that at that time no right of action had arisen.

For the plaintiffs it is argued that the noting of this document was a mere procedural matter and that once it was noted it became an effective document as from the date of its execution.

It is agreed that the document in this case was not noted until 31st January, 1957.

I have been unable to find any authority directly on this matter.

I am of the opinion that until this document had been" noted" under section 119 (3) it was void and of no effect and that the plaintiffs had no right of action when the writ was issued. I do not think the subsequent noting of the document by the Mining Board can affect that position retrospectively.

I would add further that the document itself states-" This partnership shall be subject to the consent of the Mining Board otherwise these presents shall be void". It is open to doubt whether the" Noting of this document by the Chairman of the Mining Board" can be said to be the same thing as the" consent of the Mining Board ".

In these circumstances I must uphold the preliminary objection of the defence that this action must fail since the document relied upon by the plaintiffs was not noted by the Mining Board until after the writ was issued.

For this reason and not otherwise on the merits of the case there will be judgment for the defendant.