Kuar v Singh [2022] FJSC 19; CBV0017.2018 (29 April 2022)

IN THE SUPREME COURT OF FIJI
[CIVIL APPELLATE JURISDICTION]

Civil Petition No: CBV 0017/2018
[On Appeal from the Court of Appeal Civil Appeal No: ABU 0103/2016; High Court of Lautoka Civil Action No: HBC 83 of 2008]

BETWEEN:

1. PHUL KUAR and SHIU NARAYAN
2. PREM SINGH
3. PRAJAY INVESTMENTS LIMITED
Petitioners

AND:

RAJEND SINGH
Respondent

Coram: The Hon. Mr. Justice Anthony Gates, Judge of the Supreme Court

The Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court

The Hon. Mr. Justice Buwaneka Aluwihare, Judge of the Supreme Court

Counsels: Mr R.P. Singh and Ms Vreetika for Petitioners

Mr N Kumar for the Respondent

Date of Hearing: 6^th April, 2022

Date of Judgment: 29^th April, 2022

JUDGMENT

Gates J

Introduction

[1] The Petitioners seek special leave to appeal to this Court from a decision of the Court of Appeal delivered on 5^th October 2018. The Court of Appeal upheld the findings of the High Court, stating the appeal was without merit. It ordered costs of $2,500 each to be paid by the 2^nd named 1^st Appellant, the 2^nd Appellant, and the 3^rd Appellant. Those appellants are the 3 Petitioners now before this Court. The 1^st named 1^st Appellant died on 15^th April 2010. This was long before the learned Judge delivered his judgment in the High Court on 6^th September 2016 and before the filing of an appeal in the Court of Appeal on 23^rd September 2016. No application was ever made to substitute her name, Phul Kuar, in the proceedings with that of her administrators. This matter was dealt with in the judgment of the Court of Appeal. It did not affect the High Court decision and we need not say anything further.

[2] The case before the High Court was about whether the deceased’s estate had been properly administered in the interest of all of the beneficiaries. Both the High Court and the Court of Appeal came to the same conclusion, that there had been fraudulent dealings to the detriment of one of the beneficiaries namely the Respondent in this court Rajend Singh. The grounds of this petition cover aspects of those findings, seeking to displace that conclusion.

[3] The 28 grounds in the petition were not drafted by Mr Roopesh Singh, Counsel for the Petitioners before this Court. This was apparent from his written and oral submissions. Mr Singh helpfully conceded that there was in essence only one ground to be urged. That ground was that the threshold proof of fraud had not been reached, and that the evidence was insufficient to discharge the Plaintiff’s necessary onus of proof.

The Facts

[4] Pritam Singh held a lease of agricultural land referenced as Lot 1, ND 1978, Lease No. 58063. It comprised 58 acres 2 roods, and 36.65 perches. It was a sugar cane farm near Nadi Airport. The lease was issued on 1^st October 1953 and its term was for 50 years. It expired on the 30^th September 2003.

[5] Meanwhile Pritam Singh had died on 11^th August 1973. He had made a will beforehand. Apart from small general legacies to two daughters the estate was gifted to three beneficiaries in equal shares. Those beneficiaries were Pritam’s widow Phul Kuar aka Kumari [1^st named 1^st Petitioner], his son Prem Singh [2^nd Petitioner] and his other son Rajend Singh [Respondent].

[6] The testator had appointed the 1^st and 2^nd named 1^st Petitioners as “trustees of my will.” Initially they were executors and administrators. The obligations to act in the interest of the beneficiaries continued after the executorship was over as they acted as trustees for the undistributed property. The Respondent claimed they had failed to distribute the estate in accordance with the will and that they had failed to perform their duties as Trustees. The Petitioners were also alleged to have failed to keep proper records of income.

[7] A power of attorney had been granted by the 1^st Petitioners to Prem Singh. This was questioned as to whether it was proper and complied with the Land Transfer Act. It was stated that the 1^st Petitioners would be spending more time abroad and that was why they required the 2^nd Petitioner to act for them as attorney. It was the Respondent’s case that this was part of a plan to deprive the Respondent of his share of the estate.

The Pleadings

[8] A second amended statement of claim dated 9^th of September 2013 was served on the defendants. Chiefly, 3 claims remained.

[9] The first cause of action was for maladministration and alleged that the 1^st Petitioner had not carried out their duties as trustees and administrators of the estate. They had failed to distribute the estate in accordance with the will. They had also failed to keep proper records of income received from the farm.

[10] The second cause of action referred to the Power of Attorney granted to Prem Singh by the trustees, the 1^st Petitioners. It referred to the formation of the company, the 3^rd petitioner. It alleged Prem Singh should have known a statutory extension of the lease was available to the estate under ALTA “and which he failed/neglected and/or deliberately avoided for the benefit of Prajay Investment Limited of which his wife Pritika Singh and himself were the only shareholders.” In addition, it was claimed Prem as attorney, through fraud and deceit, had an approval notice issued by the Director of Lands in the name of his own company, the 3^rd petitioner.

[11] It claimed Prem knew the property for which he obtained the approval notice – the development lease – was subject to a trust in which the respondent was entitled to shares. The formation of this company had compromised his position for he had a conflict of interest, as attorney for the trustees. The approval notice was therefore obtained by deceit.

[12] Prem had been receiving cane payment monies from the farm on the estate No.9850. It was claimed no share of that income had been paid over to the respondent. The respondent sought a full and detailed account of all transactions from the date of Prem’s appointment as the attorney of the trustees, of income from the estate, and from the farm.

[13] The 3^rd cause of action alleged that the formation of the company had been done with the fraudulent intention of depriving the respondent of his entitlement under the estate. Part of this claim suggesting collusion with the Lands Department had been earlier struck out. What was left was in essence the formation of the company as a vehicle for depriving the respondent of the residual land potential in the estate.

[14] The defence was largely one of denial and explanation.

How the parties litigated their cases

[15] Neither of the key parties to the dispute gave evidence. The two brothers, Prem Singh and Rajend Singh did not give evidence nor did the trustees. The mother had died before the trial, but there was no evidence from the remaining trustee.

[16] This lack of evidence, lack of explanation, on the relevant issues made for the High Court judge a challenging task.

[17] The defence case was to be elicited from the plaintiff’s witnesses answers in cross-examination, and from 2 exhibits Dex 1 and Dex 2, marked during that examination. This raised an issue to whether certain inferences were properly to be drawn from the unexplained failure to give evidence and whether there existed proven facts from which an affirmative conclusion could be reached Jones v. _Dunkel [1959] HCA 8; (1959) 101 CLR 298. I will return to this matter later.

[18] There was no dispute that the respondent Rajend was unfit to travel from Melbourne or to appear in Court. A medical opinion from a general practitioner certified him as being legally blind, that he had had extensive burns to his body, was immune-compromised, prone to life threatening infections, still recovering from recent severe illness (pyelonephritis) with multiple other medical problems. His absence from court was properly explained.

[19] The Plaintiff’s case proceeded without the plaintiff. His wife Sudesh Singh held a power of attorney from her husband. She knew the respondents business and worked with him on his dealings. He had a business in Nadi and was present in Nadi during cane cutting for the years after the expiration of lease when the cane contract still had some time to go. They also has some businesses in Australia.

Evidence of the claims at trial

[20] There were 2 powers of attorney granted by the respondent to his wife Sudesh. Objection was made to the powers on the basis that they were not registered under the Land Transfer Act. Since the powers were not going to be used for the purpose of selling properties the objections were correctly overruled. The other objection was that the witness could not speak on behalf of Rajend. This Sudesh did not seek to do. As a witness she could only inform the court of matters of which she had personal experience or knowledge.

The failure to obtain an extension on the lease

[21] It was said the failure to obtain an ALTA extension of 20 years on the lease was a deliberate step on Prem’s part; a lapse creating a gap whereby, through the formation of his own company, he could obtain a development lease for his personal financial gain.

[22] The original 50 year lease expired in 2003. The trial judge commented in his judgment at p.21 [RHC Vol I P28]

“(61) The real issue is the failure of the trustees or the person holding their Power of Attorney, 2^nd Defendant, to protect the interests of all of the beneficiaries and do whatever was required to renew the existing lease or obtain a fresh lease.”

Was renewal possible under ALTA?

[23] On the 13^th March 2012 Inoke J in an interlocutory ruling in this case striking out the claims against the Director of Lands and the Attorney-General said at p.7-8:

“[7] Is this one of the exceptional cases for striking out? I think it is. I have no doubt that the plaintiff’s claim .... cannot be sustained simply because whatever rights the plaintiff’s father had in respect of the land were extinguished when the lease expired and there was no application to extend it. It may well be that the administrators failed to apply for the extension but I cannot see ... how that it could ground a finding of fraud, negligence or collusion.

[8] Further when the Nadi Town Council Planning Scheme changed the zoning on 25^th April 1998, it removed any possibility of the land being used as a farm and any right to extend it for a further term under the Agricultural Landlord and Tenant Act. So even if an application to extend the lease before it expires was made the application would have been rejected in any event.”

[24] Section 13 of ALTA provides as follows:

“13. (1) Subject to the provisions of this Act relating to the termination of a contract of tenancy, a tenant holding under a contract of tenancy created before or extended pursuant to the provisions of this Act in force before the commencement of the Agricultural Landlord and Tenant (Amendment) Act 1976, shall be entitled to be granted a single extension (or a further extension, as the case may be) of his contract of tenancy for a period of twenty years, unless-

(a) During the term of such contract of tenancy has failed to cultivate the land in a manner consistent with the practice of good husbandry; or

(b) The contract of tenancy was created before the commencement of this Act and has at the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976 an unexpired term of more than thirty years: (emphasis added).”

[25] Under the ALTA the estate still had 26 years of its 50 year term remaining and therefore it appeared to qualify for renewal in accordance with Section 13(1)(b).

[26] However, the ALTA Regulations laid down some exemptions:

Exemptions from the provisions of sections 7 and 13 of the Act:

“3. The provisions of section 7 and 13 of the Act shall not apply to any contract of tenancy which has an unexpired term of thirty years or more to run from the commencement of the Act.

Exemptions from the provisions of sections 6, 7 and 13 of Act

4. The provisions of sections 6, 7 and 13 of the Act shall not apply to any agricultural land-

(a) Situated within the boundaries of any city or town.
(b) Situated outside such boundaries which the director of Lands may by notice published in the Gazette declare to be land required for non-agricultural purposes;
(c) Not applicable.
(d) Approved by the Director of town and Country Planning for subdivision for residential or commercial purposes.”

[27] Counsel for the Respondent called Waisea Radovu [PW5], the Rate Officer at Nadi Town Council. He was called to establish the arrears of rates on the property originally leased by the estate from the 1^st January 2000 to 2015. As much as $86,792 had been written off by the Council as unpaid rates [DEX-1 Rates Assessment letter on arrears]. The arrears extended back to 1974. The witness said that was the year “when the area was included to the town bounds.” He clarified this to mean, 1974 was the year that the lease area No.58063 became included within the town boundary, and that all such lots then became rateable.

[28] Ratu Meli Naevo Koroitamana, Acting Manager Planning and Building at Nadi Town Council, was called by the Respondent. He gave evidence on the approved scheme plan and the re-zoning in 2004. In cross examination he was asked which part of the scheme plan was within the Nadi Town Council boundary and which part was not. He answered “the whole subdivision is inside the Nadi Town Council boundary.” He said Lot 1, the whole subdivision, was included in the boundary from 1974.

[29] It would appear the Court of Appeal was in error on this important issue. The agricultural lease, being from 1974 classified as within “the boundaries of any city or town” could not be extended under ALTA. ALTA itself was a variation from the usual position upon the expiry of a lease:

“Expiry is the default method of termination of a fixed term tenancy; at common law, the tenancy ends when the fixed term expires.”
[Megarry and Wade “The Law of Real Property” para. 18-002 at pages 810 to 811]

[30] It was a matter of policy that resulted in limitation being placed upon the beneficence allowed to agricultural tenants. Kermode J explained in Narpat Singh v Attorney General of Fiji & Ors. [1983] FJSC 12:

“Mr. Koya has also submitted that Regulation 4(d) could put an end to ALTA. That is an exaggeration. All the regulation does, if the Director approves a subdivision of land for residential purposes, is to take away an entitlement of an agricultural tenant who would otherwise be entitled to an extension of his tenancy. It in no way affects the rights the tenant has under his tenancy to occupy the land until it expires. The statutory entitlement can be nullified by the very statute that creates it.

No breach of natural justice or unfairness is involved. On the contrary the regulation when it can be invoked removes some of the initial arbitrary restraint imposed on landowners by the Act. The Act was designed for the benefit of tenants initially with little regard to the rights or wishes of landowners and in complete denial of legal agreements freely entered into between landowners and their tenants. Notwithstanding that situation, the legislature did not lose sight of the need to exempt agricultural land from the Act where the interests of the public generally are considered paramount and for other reasons considered valid.”

The Court further said that:

“It was the plaintiff’s misfortune to occupy a farm near a town where agriculture has to make way for the residential needs of an increasing population. He cannot expect to tie up agricultural land for another 20 or 30 years where there is a greater need for residential sections.”

[31] Therefore after the lease expired there was no entitlement for the existing tenant of the estate to be granted a 20 year extension. The land reverted to the State with the Director of Lands as lessor, the land potentially available for any fresh lessee applicant. Therefore the estate no longer held any landed property. The finding on the legal position upon the expiry had been a major cornerstone for the idea that Prem was executing a plan to enrich himself and to deny his brother. But that finding in law was incorrect. The major allegation of fraud is left unsupported.

[32] It could be said, with a family meeting, all three beneficiaries could have agreed to take on the risk and to apply for a development lease. This would have meant all 3 would have had to put in funds for such an expensive venture. At the expiry of the 50 year term and the original lease having expired, there may have been nothing left to distribute. There was no evidence of anything discussed concerning new ventures for the estate, or at the end of the administration, with any possible remaining funds.

[33] But on the 10^th of September 2007 Solicitors for the 3^rd Petitioner wrote to the Respondent concerning the subdivision. He was informed of the approval by the Town and Country Planning of a scheme plan for lot 35. A scheme plan was enclosed with a letter. The letter stated:

“Our client will vest lot 35 comprising of 2.3226 hectares being hotel site to you in consideration of natural love and affection which the directors of the lessor bear towards you subject to payment of all subdivision cost for the particular lot by you.

Our client will ensure that a separate lease for the said lot 35 be issued directly to you.”

[34] This letter appeared to give a benefit to the Respondent, albeit that there were development costs associated with it.

Power of Attorney granted to 2^nd Petitioner

[35] Counsel for the Respondent submitted before the trial judge that a power of attorney can be appointed by a trustee but only if, and for the time, that a trustee is out of Fiji [section 45 Trustee Act]. A similar provision enables an executor to grant a power of attorney, where the person entitled to probate or administration is out of the jurisdiction [s.28 Succession Probate and Administration Act]. It seemed that the mother was overseas for some of the time and illness with medical attention being part of the reason.

[36] Nothing has been said of the whereabouts of Shiu Narayan, the remaining Trustee after the death of Phul Kuar. The entitulement refers to him as living in the USA.

[37] If the conduct of the holder of the power of attorney was not strictly confined within the statutory limitations of the office the evidence did not condescend to sufficient detail of any deficiency. The trustees may have been away at times. The allegation is not established. It cannot be inferred that Prem went out to seek the appointment or that the appointment was obtained deceitfully. He was the family member resident in Fiji and resident in Nadi. It was an unsurprising appointment.

[38] Another allegation was that Prem had formed a company to apply for a new lease in the name of the company Prajay Investments Ltd, the 3^rd Petitioner. This company had two shareholders, Prem himself and his wife Sudesh. It appeared at first at least Rajend and his wife knew nothing about it. They were not included as shareholders. They were not asked to join, nor were they Directors.

[39] A further allegation of fraud arises from 2 letters. On 28^th March 2006 Prem wrote to the Divisional Surveyor Western concerning the former estate land Lot 1 DP 1978 CL 58063. He wrote as follows:

“Further to our discussion of 27^th March, 2006 I enclose herewith copies of the following documents to enable you to prepare the above lease in the name of Prajay Investments Limited.

(1) Copy of Certificate of Incorporation
(2) Particulars of Directors and Secretaries

Lease No: 58063 was held by Phul Kumari and Shiu Narayan as administrators of the estate of late Pritam Nand and the subject lease expired in 2003 and prior to expiry the department had given consent to subdivision and accordingly the proposed scheme plan was approved. A copy of the same is enclosed for your reference.

Estate of Late Pritam Nand had three beneficiaries and according to his last Will, the beneficiaries have formed a limited liability company Prajay Investments Limited for the purposes of carrying out the subdivision.

All the beneficiaries under the Will of the deceased are the Directors of the company and the reason for the Development Lease to be in the company name is solely to raise the necessary funds to develop the land as otherwise the estate will be restricted to borrowing only upto $10,000.00.

I kindly request you to do the needful and revert to me for execution and completion of other formalities.”

(underlining added)

[40] He mentioned that the administrators of the estate had held the lease till its expiry in 2003. He referred to the fact that the Department (Lands) had given consent prior to the expiry to a subdivision of the land and that the proposed scheme plan had been approved. He enclosed a copy of the approval. From the documents we know the lease expired on 30^th September 2003 and the Director of Lands gave his consent on the 10^th of January 2003.

[41] The next paragraph is problematic, for though he correctly refers to there being 3 beneficiaries, he omitted to state in the same paragraph that one of the beneficiaries was not associated with the company seeking to be granted the development lease.

[42] The next paragraph “All the beneficiaries under the will of the deceased are the Directors of the company . . . .” was on the face of it misleading. Rajend was not a Director. However, Prem had enclosed 2 other documents, the certificate of incorporation and the particulars of Directors and Secretary. If the recipient had read these along with the letter he or she might have raised a query. Since the Divisional Surveyor Western was not called as a witness by the Respondent we are unable to say whether this was picked up, and whether it would have made any difference. Nor do we know how significant it was for the surveyor to know that the applicant was representing all of the family of Pritam Singh as beneficiaries. Was the family of a former tenant to be given priority over any other applicant? There was no evidential answer to these questions.

[43] A letter [PEX-12] written by the trustees on 20^th February 2008 to the Director of Lands informed him that they expressly authorized Prem Singh the beneficiary to make application for a development lease over CL58063 under the company name Prajay Investments Ltd. Prem of course was not “the” beneficiary in the sense of sole beneficiary, rather he was “one of the” beneficiaries. The letter appears to have been drawn up by a lawyer. Shiu Narayan Singh signed before a notary public in Australia and Phul Kuar before a solicitor in Nadi.

[44] This evidence will be weighed further on when considering what must be proved in claims alleging fraud.

First Claim: No proper accounts and failure to distribute

[45] With neither side providing testimony on the annual accounts of the executorship, administration or trusteeship, there was insufficient material to reach an accurate conclusion on the finances of the estate. Some accounts were provided for the proceeds of the cane farm. But neither side explained why and how monies were available and whether paid out, and the reason for any differences in shares. In addition, where was the evidence of what was left after the expiry of the old lease, what was sold, and what cash remained for distribution. All of these were not properly addressed in the evidence.

[46] The Manager of the Nadi Branch of ANZ testified that currently there was an account in the name of the estate. It had been an agreed fact [No.12] that all cane monies from the farm were being paid by FSC Lautoka into ANZ Nadi. According to the farm accounts cane payments were paid to the Respondent upto the year 1997. From 1998 – 2005 no payments were made to the Respondent.

[47] Pritam Singh died in 1973. The estate was administered, or not, for the next 30 years without complaint. Nothing was before the court on the administration during that period, of what decisions were made of income distributed. In 2007 the Respondent was asked to move out of the family house which he had been using when making visits to Fiji. From the evidence of the Respondent’s wife it can be seen this move proved, irksome, expensive and no doubt caused some resentment.

[48] No evidence was given for the Respondent on the question of when the lease asset should be sold and the beneficiaries paid out their one third share each. By 2003, 30 years had gone. Presumably the beneficiaries were content each to receive annually part of the cane (and rent) proceeds. There is no evidence of family dissent over the lack of capital distribution. But by 2003 the estate land asset was no more.

[49] The cane accounts being exhibited for the Respondent’s case, illustrated a difference in distribution of income. This could have been explained, but the 2^nd Petitioner chose not to do so. No valid reason for the difference being provided, the Respondent is entitled to an order from the court that the 2^nd Petitioner should make good the difference for the years 1998 – 2005.

[50] The 2^nd Petitioner could have avoided the damage to his reputation by the findings of the courts hitherto, had he chosen to testify and to provide available explanation as to what happened to the estate and with its distribution from 2003 onwards. He chose not to do so, though he may have relied on his trial Counsel’s advice. He succeeds in part in this appeal but his conduct has been such that he should not be allowed the costs of the appeal.

Proof of fraud in civil cases

[51] Observations made in the speeches of the House of Lords on the subject of fraud in Bradford Third Equitable Benefit Building Society v. Borders [1941] 2 All E.R. 205 make for an important starting point. At p216H Lord Russell of Killowen said:

“To make a charge of fraud is a serious thing, and before people make it, they should be clear as to the grounds and facts upon which they rely and the basis of their charge.”

[52] Lord Wright at p218G cautioned:

“The importance of the established rule that fraud must be precisely alleged and strictly proved.”

In the instant case neither of these requirements were met. They fell well below the standard required.

[53] In the Bradford case the Plaintiff had been unable to connect the representative of the building society with a certain meeting and with other communication in which the contractors had made misleading statements, orally and in a brochure, claiming the society had given its support to their company. The Plaintiff failed before the High Court, succeeded in the Court of Appeal, and failed again before the House of Lords.

[54] Viscount Maugham set out at p211A the requirements of proof:

“My Lords, we are dealing here with a common law action of deceit, which requires four things to be established. First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit: Peek v. Gurney (2), at p.390 per Lord Chelmsford, and at p.403, per Lord Cairns, and Arkwright v. Newbold (3), at p.318. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true: Derry v. Peek (4) and Nocton v. Ashburton (Lord) (5). Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him: Peek v. Gurney (2) and Smith v. Chadwick (6), at p.201. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made: Derry v. Peek (4), at p.374, and Peek v. Gurney (2), at p. 409. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing: Clarke v. Dickson (7). I am not of course, attempting to make a complete statement of the law of deceit, but only to state the main facts which a plaintiff must establish.”

[55] The Respondent at trial had failed in the instant case to prove the 4^th requirement. We have no idea what effect some inaccurate information on ownership of the company and on the directors (to some extent) had had upon the Divisional Surveyor Western. Similarly there is no evidence of any resultant damage caused to the Respondent.

[56] Nor is the intention of the 2^nd Petitioner to cause damage to the Respondent’s interest clear, bearing in mind that there was no right remaining of extending the expired lease under ALTA, and no evidence from the Respondent that he had agreed to join up in the venture of the 2^nd Petitioner through the 3^rd Petitioner, to apply for a new development lease.

[57] In Jones v. Dunkel [1959] HCA 8; [1959] 101 CLR 298 Dixon C.J. at the outset of his judgment summarised:

“In my opinion the evidence adduced for the plaintiff at the trial of this action was insufficient to enable the jury, had they chosen to do so, to find the facts necessary to support the cause of action upon which she sued. No evidence was called on the part of the defendants but, as I think, they were entitled to a verdict by direction.”

[58] Where there is silence on the part of the Defendant the fact finder must first ask, standing alone, has the evidence of the Plaintiff proved his claims. For where there is insufficiency of evidence to prove his case, the failure of the Defendant to testify in itself cannot supply the deficit.

[59] In the 4^th judgment in the case Menzies J. at para.2 said:

“Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause you need only circumstances raising a more probable inference in favour of what is alleged . . . where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley [1911] UKLawRpAC 47; (1911) AC 674, at p.687. . .”

[60] Here we do not have a sufficiency of proven facts to draw a clear inference of wrong doing. Rather there is open an alternative hypothesis, of lawful non-fraudulent course of conduct.

[61] Strict proof of moral turpitude has not been established by proven facts. The claim of fraud must fail and the decision of the Court of Appeal, with respect, must be reversed.

[62] Not only, as has been said in the Bradford case, that fraud should not be alleged lightly but also that one must marshal one’s facts and evidence of proof beforehand. It is not a just or sound system that can allow a charge of fraud to stand without a rightful sufficiency of clear evidence. The petition should succeed in part and special leave is to be granted therefore pursuant to Section 7(3)(c) of the Supreme Court Act.

Dep J

[63] I have read in draft the judgment of Gates J and I agree with his reasoning and conclusions.

Aluwihare J

[64] I have had the opportunity of perusing in draft the judgment of Gates J, and I agree with his reasoning. I also agree with the orders proposed by Gates J.

Orders:

In the result, the orders of the Court should be:

1. Special leave granted.
   
2. The petition succeeds in part.
   
3. All claims fail save for the non-provision of accounts, and the unequal distribution of cane payments for the years 1998 – 2005.
   
4. The decision of the Court of Appeal is set aside.
   
5. The 2^nd Petitioner is to pay to the Respondent a sum equal to the amount he should have paid if the cane proceeds had been paid out in the same amounts to each beneficiary for the years 1998 – 2005.
   
6. 2^nd Petitioner as attorney is to provide final accounts and explanation of the end of Trusteeship of Estate of Pritam Singh setting out the distributions made of assets, all such accounts to be filed with the Lautoka High Court and served on the Respondent’s Solicitors prior to 1^st September 2022, the case to be mentioned at Lautoka High Court on the 1^st September 2022 to ensure compliance with these orders.
   
7. No order as to costs.
   

_____________________
Hon. Mr Justice Anthony Gates
Judge of the Supreme Court

_______________________________
Hon. Mr Justice Priyasath Dep
Judge of the Supreme Court

_______________________________
Hon. Mr Justice Buwaneka Aluwihare
Judge of the Supreme Court