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Ram v Kumar [2002] FJHC 49; Hba0023J.2001s (18 April 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 23 OF 2001S

Between:

SARAS SHIU RAM
Appellant

and

VIRENDRA KUMAR
and
PARVATI
Respondents

D. Sharma for the Appellant
Ms. V. Lal for the Respondents

JUDGMENT

On 24 November 1993 the Appellant agreed to sell the Respondents a vacant piece of land Lot 40 on DP 5521 for $20,000. A copy of the agreement is at page 98 of the record.

There are a number of curious features about this agreement. While it several times refers to a “date of settlement” no date for such settlement is specified. Despite this omission time was stated to be the essence of the contract. The contract also includes a warranty by the Appellant that the title deed to the property was unencumbered although the deposit provision makes it clear that the Appellant did not actually have title to the property at the time that she agreed to sell it.

The title to the property at the time the agreement was entered into was in fact held by the Nasinu Land Purchase and Housing Cooperative Society Limited (the Coop) of which the Appellant was apparently a member.

In November 1993 the Respondents paid the Appellant $5000 pursuant to the agreement. In June 1994 a further $3000 was paid. The Respondents moved into the property two days after signing the sale and purchase agreement.

In breach of the agreement the Appellant did not obtain title to the property and did not convey the title to the Respondents. The Respondents eventually obtained title from the Coop in February 1998 (see pages 35 and 38 of the record).

On 1 December 1998 the Respondents issued proceedings in the Suva Magistrates’ Court for the return of the $8,000 paid.

In his concise and clear Judgment the Resident Magistrate (J. Singh Esq) found as a fact that the Respondents had paid $8,000 to the Appellant but that she had not conveyed the title to them. In these circumstances there was a clear breach of contract, in fact a total failure of consideration by the Appellant and, absent special reasons, the Resident Magistrate had no alternative but to order the refund of the $8,000 to the Respondents.

The special reasons for not ordering the refund which were advanced before the Resident Magistrate and again before this Court arose from the somewhat mysterious nature of the dealings between the Appellant and the Coop.

The Appellant claimed that she had fully paid the Coop for the land in question and that she was therefore entitled to have the land conveyed to her. She relied on a receipt No. 0724 dated 30 November 1993 which appears to show a payment of $8,500 “being full and final payment on Lot 40 Stage III on DP 5521” issued by the Coop (see page 26 of the record). The Coop however wrote to the Respondents in March 1997 (page 93) and advised them that the Appellant had only paid a deposit of either $3,000 or $8,000 (the figure is not clear in the exhibit) in March 1984 since which she had paid nothing with the result that she had “lost her claim to purchase the lot” which she was not entitled to sell.

The Coop was not a party to the proceedings in the Magistrates’ Court and it is impossible to know where the truth lies but in my view the Resident Magistrate was right to hold that the misconduct of the Coop, even if proved, could not amount to a defence to the Respondents’ action against the Appellant. And neither in my view can the fact that the Respondent’s apparently lived on the land rent free from November 1993 to February 1998 or the fact that the Respondents were apparently able to negotiate the purchase price for the property down from the original $20,000 asked by the Coop to $11,500 eventually agreed upon and paid.

As the Resident Magistrate saw it the Appellant’s grievance, if justified, must be against the Coop and not against the Respondents. I agree.

Mr. Sharma filed an excellent and helpful written submission and said all that could possibly be said on behalf of the Appellant. In my opinion however there was no error in the Resident Magistrate’s approach. The appeal fails and is dismissed.

M.D. Scott
Judge

18 April 2002