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Inoke v Beraki [2002] FJHC 258; HBC0361.2002 (18 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No.: HBC0361 of 2002
BETWEEN:
SEREKI INOKE
Plaintiff
AND:
SERUPEPELI BERAKI
THE METHODIST CHURCH OF FIJI
Defendants
Mr. S. Matawalu - Counsel for the Plaintiff
Mr. S. Valenitabua - Counsel for the Defendants
DECISION
By an originating summons filed on 23rd August 2002 the plaintiff is seeking vacant possession of piece of land comprised in Lease Number 110037 being Lot 1 on Deposited Plan 3290 having an area of 31.7 perches situate at Kinoya, Suva in the island of Viti Levu.

The plaintiff alleges that she is the widow of deceased Jone Cama and administratix of his estate. She deposed that there is a three-bedroom house on the said land. She lived with her husband on the said land till 1984 when they moved to Naitasiri, where they lived on a farm until 1993. Then they shifted to Sawani Village where her husband died in 1994 and she moved away to Vanuabalavu in Lau.

In 1995 the Methodist Church paid for her to travel to Suva to sign transfer documents. She sought legal advice, which ultimately resulted in these proceedings.

The Defendants’ position is that the deceased Joe Cama had agreed to sell the property to the Church for $17,000.00 and had signed an Application for Consent to Dealing, a copy of which was annexed to the affidavit of Taniela Tokasaya Kepa. They alleged that consent to transfer was obtained, certain payments were made to Housing Authority on behalf of the deceased in respect of rent arrears and to get the mortgage discharged. Certain correspondence from the Housing Authority has also been annexed to the affidavit. They also alleged that money was paid to Jone Cama to assist him buy a farm. They also say that a substantial house has been built on the said land by the defendants for the church Minister. The only thing which was left undone was the transfer of land to the defendants.

The plaintiff in her affidavit in reply denies that the signature on the application for consent to a Dealing is that of her husband. In other words she is making allegations of forgery by someone.

There is also dispute as to how much money was paid by the defendants and the purpose for which it was paid, - whether it was part payment for land or it was paid to the plaintiff for her accommodation and maintenance when she had been called to Suva by the defendants.

There is dispute as to whether purchase price was used by the deceased to buy a farm in Naitasiri as the defendants alleged or whether the deceased did not buy a farm but only went to work on farm owned one Mr. Keni and Mr. Benefield.

The above are complicated factual issues, which is difficult to resolve on affidavit evidence. It probably would involve credibility of witnesses so oral testimony is desirable.

Besides this, serious questions of law are raised. The defendants submit that the application for consent to a Dealing contains the names of parties, the description of the land, the price of land and therefore constitutes a sufficient memorandum for purposes of Section 59 of Indemnity Bailment and Guarantee Act. The plaintiff alleges that the signature of deceased was forged and therefore the Defendants cannot rely on it at all.

The defendants further say that there was part performance. They raised the equitable doctrine of proprietary estoppel as an issue. They say they went into possession of the land pursuant to an agreement, carried out development on it, while the plaintiff did not do anything. They have a right to stay on the land.

In JAMNADAS & CO. LTD. v. PUBLIC TRUSTEE AND PRASAD STUDIOS Civil Appeal 39 of 1972 – Fiji Court of appeal unreported judgment the Court said as follows:

'In the past, on earlier but similar legislation, the Supreme Court (now High Court) has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to plaintiff’s right to institute proceedings by writ of summons ... The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under Section 172 of the Act or from inherent power to reject as unsuitable procedure where another, comprehensive and better suited to the determination of controversial matters, is available.'

Now issues such as whether there was forgery involved, whether or not money was paid to the plaintiff and what was the purpose of such payment and whether or not there was a legal binding memorandum in writing and whether or not the defendants had an equitable interest in the land are not matters which can be resolved by affidavits alone. Such matters ought to go to trial after proper pleadings are filed. The defendants had in the affidavit in reply had asked for specific performance.

Accordingly, I dismiss the application with costs to the defendants to be taxed if not agreed.

{ JITEN SINGH }

JUDGE

At Suva

18th October 2002