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Ravutu v Khalil [1992] FJHC 38; Hbc0417.90 (17 September 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 417 OF 1990

Between:

1. SAIMONI RAVUTU
2. TATILA TIKOISUVA RAVUTU
Plaintiffs

- and -

ABDUL KHALIL
s/o Abdul Lateef
Defendant

Mr. J. Flower for the Plaintiffs
Mr. H.A. Shah for the Defendant

JUDGMENT

In this case the plaintiffs seek an order for the specific performance of an oral sale and purchase agreement of a block of Crown leasehold belonging to the defendant situated at Malolo, Nadi and alternatively damages for breach of contract and other ancillary relief.

The defendant has filed a Statement of Defence stating that the oral contract was subject to the drawing up of a formal written contract which has not been done. He also counterclaims for an order for vacant possession and mesne profits.

In Morphett v. Jones (1818) 18 RR 48 it was said by the Master of the Rolls at p.54:

"The acknowledged possession of a stranger in the land of another is not explicable except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract and as sufficient to authorise an inquiry into the terms; the Court regarding what has been done as a consequence of contract or tenure."

In this regard it is uncontested that since July 1985 and right up till the present moment the plaintiffs have been in possession and occupation of the defendant's house and land at Malolo in Nadi and although their initial occupation was on the basis of an oral tenancy for which the plaintiffs paid rental of $100 per month; some time after the 'coups' in 1987 the plaintiff's orally agreed to buy the defendant's property for $10,000.

Although the sale and purchase agreement was essentially an oral one, I am more than satisfied from the documentary evidence produced by the plaintiffs that there exists a written note of the agreement signed by the defendant sufficient to satisfy the requirements of Section 59 of the Indemnity, Guarantee and Bailment Act (Cap. 232).

I refer in particular to the defendant's letter of 13th December 1988 (Ex.'P-2') in which he sought approval of the Director of Lands to withdraw an earlier consent he had obtained "... as I am in the process of selling the property to Saimoni Ravutu and Tatila Tikoisuva Ravutu of Nadi"; and also to the Application for Consent To a Transfer form (Ex.'P-1') submitted by the defendant's solicitors in October 1988 in which the defendant as the 'Transferor' of the land, sought the consent of the Director of Lands to the transfer of a 'Crown Land house-site' being Lot 17 ND 5163, LD.4/10/1614 to the plaintiffs as 'proposed transferees' for the sum of $10,000.

It is also significant that the plaintiff's assertion that upon signing the application for consent form (Ex.'P-1') they ceased paying rent for the land, was not disputed or challenged in any way by the defendant's attorney. Nor does it appear that the defendant had sought vacant possession of the land or indeed levied distress for the unpaid rent.

There can be no denying that the parties had agreed to buy and sell the land in question for $10,000 and in my view the agreement was a valid and enforceable one at the time it was entered into.

Unfortunately the agreement could not be finalised because of various "misunderstandings" not the least of which was the absence of a formal lease and an apparent lack of any agreement at the time as to when the sale was to be completed or finalised. Furthermore the presence of an undischarged bank mortgage of $15,000 over the 'head title' and the emigration of the defendant in the interim have certainly not assisted matters.

In any event on the 22nd of December 1988 shortly before his departure from Fiji the defendant appointed his brother Mohammed Amin to be his lawful attorney in his absence (Ex.'D-1'). According to Mohammed Amin the power was given to him to enable him, amongst other things, to sign all the papers for the transfer of the defendant's property to the plaintiffs. He insists however that he will only execute a transfer of the defendant's property upon payment of the $10,000 and not otherwise.

The plaintiffs for their part state that their bank insists on sighting a copy of an executed transfer to the land from the defendant to the plaintiffs before it would release any funds.

In order to obtain the latter the plaintiffs sought the assistance of their solicitors who requested the defendant's attorney by letter to agree to sign a transfer of the defendant's land to the plaintiffs but that was refused. The matter had finally reached a 'stale-mate'.

The Lands Clerk Anthony Dhirendra Singh who was called by the plaintiff described the relevant history of dealings with the 'head title' in question and its subsequent subdivision into 2 lots (1 of which is the land presently occupied by the plaintiffs). He also testified that now that the land had been properly subdivided it was possible to issue an unencumbered lease over the land occupied by the plaintiffs upon receipt of a stamped copy of a transfer of the land to the plaintiffs.

The defendant's attorney however claims that the time for the completion of the agreement has long expired owing to the plaintiffs' failure to pay the $10,000 and therefore this Court ought not to order specific performance of the agreement. I cannot agree.

The attorney's evidence regarding the terms of the oral agreement between the plaintiffs and the defendant was of very little assistance and indeed almost all of his evidence was 'hearsay'.

As earlier observed and I so find that there was no agreed time within which settlement was to take place much less where the land to be transferred had not been properly subdivided.

I note also that the relevant Consent to Transfer form (Ex.'P-1') has no expiry date on it and the defendant's letter of 13th December 1988 (Ex.'P-2') sought the withdrawal of the Director of Lands' consent given on the 12th April 1984 (i.e. almost 5 years previously!). Clearly in that instance the defendant was willing to wait 5 years and the Director's consent remained extant.

In the result I am satisfied that this is an agreement which can and ought to be specifically performed and accordingly I make the following orders:

(1) That the defendant by his attorney execute and deliver to the plaintiffs' solicitors a registrable transfer over Lot 17 ND 5163 LD.4/10/1614 to the plaintiffs' jointly, within 14 days of the date hereunder; and

(2) Thereafter the plaintiffs' solicitors shall pay within 21 days into the defendant's solicitors 'Trust Account' the sum of $10,000 on account of the defendant; and

(3) That registration of the transfer not be effected until (1) and (2) (above) have been duly complied with by both parties.

The plaintiffs having succeeded in this action I grant them costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
17th September, 1992.

HBC0417.90