Shafiq v Sattar [1979] FJSC 81; Action 160 of 1978 (23 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 160 of 1978

BETWEEN

ABDUL SHAFIQ
s/o Abdul Sakur
Plaintiff

AND

ABDUL SATTAR
s/o Abdul Sakur
Defendant

Mr. S. Verma for Messrs. M. T. Khan & Co., for the Plaintiff
Mr. M. Tappoo for Messrs. Tulsi R. Sharma & Co., for the Defendant

JUDGMENT

The father of the plaintiff and the defendant was the lessee of several areas of land, including Native Lease No. 9803 containing 10 acres and 16 perches.

When he died these passed to his wife and one Jahuran jointly as executrices on behalf of themselves and the five sons of the deceased. When the sons all attained their majorities, the executrices and the sons entered into a deed of family arrangement in which the executrices renounced all their rights, titles and interests as beneficiaries and it was agreed that title to the leaseholds should be transferred into the names of the sons. Clearly from the nature of the deed and from the evidence I have heard the intention was to achieve a fair distribution amongst the sons, and to give all the sons options so as to try to keep the land in the family. As a result of this arrangement Native Lease No. 9803 was transferred into the name of the defendant, but clearly the intention was that it was to be shared by the defendant and the plaintiff and the plaintiff was to be given the option to purchase the whole of the lease should the defendant wish to sell. The deed specified that if the plaintiff took up the option he should pay to the defendant only "one half of the agreed price" - whatever that meant. Similar provisions were made in respect of all the various households. For instance a smaller leasehold was to be transferred into the name of the plaintiff, but he was supposed to share it with the defendant. The plaintiff has said that he considers himself bound by the agreement and regards himself as trustee for the defendant's portion.

Clearly the defendant does not feel the same way about the leasehold transferred into his own name but which was intended that he should share with the plaintiff. The defence called no evidence, merely relying on legal argument that the deed of family arrangement was null and void on the grounds of uncertainty and infringement of the rule against perpetuities. Surely if this is so, it questions the whole basis of the defendant's own title to the land.

The defendant's arguments are questionable even on the authorities he has quoted, but in any case the plaintiff has not attacked the defendant's title. What has happened is that both parties, presumably in accordance at least with the spirit of the family arrangement have farmed the land in question and harvested the cane grown on the land. Until 1975 the proceeds were shared, although the cane contract was in the defendant's name and the proceeds were paid initially into his Savings Bank account. Since then, although the parties have continued to farm jointly, the defendant has failed to account to the plaintiff or to pay to the plaintiff his share of the proceeds.

What the plaintiff has asked for is that the defendant render a proper and complete account of all monies received by him from the F.S.C. , and judgment against the defendant in respect of all monies received by the defendant on account of the plaintiff. The plaintiff's case does not depend solely upon the terms of the deed of family arrangement.

The parties have been jointly farming the land, and there was clearly an agreement - or at least an agreement must be implied on the facts, to share the proceeds. There was no evidence before me that the plaintiff was a trespasser as stated in the defence. The plaintiff simply wants his share of the proceeds for past harvests and for the future so long as the joint farming continues.

He is entitled to have judgment in the terms asked for and costs of this action and I so order.

The plaintiff has set out in his affidavit dated 5/4/79 a statement of account which ahs been unchallenged and should form the basis of his claim against the defendant.

It has been unnecessary for me to consider whether the deed of family arrangement was null and void for the purpose of considering the plaintiff's claim, on the facts as presented to the court, but in his counterclaim the defendant seeks an order that the plaintiff is a trespasser, damages and an injunction restraining the plaintiff from entering upon the defendant's land.

As I have already said there was no evidence before me that the plaintiff was a trespasser on the land. He was clearly on the land as part of a family arrangement concerning the parties' deceased father's estate and has worked 5 acres of the land, whilst the defendant worked another 5 acres of the same holding.

There was no evidence before the court that the defendant, even if he had been entitled to do so (which is doubtful), had taken any or any proper steps to obtain sole possession of the land, or have the plaintiff evicted. The plaintiff must be presumed to have at least a licence to work the 5 acres and there is no evidence that this licence has been extinguished.

The defendant is therefore not entitled to the declaration asked for, or the injunction, or damages as claimed and the counterclaim is dismissed.

(Sgd.) G.O.L. Dyke
JUDGE

At LAUTOKA,
23rd October, 1979.