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Mudu v Taveuni Multiracial Probationary Land Purchase Co-operative Society Ltd [2010] FJHC 274; HBC22.2004 (19 April 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION HBC NO. 22 OF 2004

BETWEEN:

ALUSIO MUDU
Plaintiff

AND:

TAVEUNI MULTIRACIAL
PROBATIONARY LAND PURCHASE
CO-OPERATIVE SOCIETY LIMITED
First Defendant

AND:

PHILIP COVERT
Second Defendant

AND:

SEREMAIA MASIVOU
Third Defendant

AND:

TOMASI RASOVA
Fourth defendant

AND:

MOHAMMED AZAM
Fifth Defendant

AND:

MUNNA BUKSH
Sixth Defendant

AND:

ISLAM BUKSH
Seventh Defendant

AND:

EREMASI ULUIVITI
Eighth Defendant

AND:

IAN SIMPSON
Ninth Defendant

AND:

ANIL SHANKARAN
Tenth Defendant

AND:

KINIVILIAME MARAWAI
Eleventh Defendant

Mr N Vere for the Plaintiff
Mr W Archibald for Defendants (except Eighth and Eleventh)

JUDGMENT

This was the re-hearing of an action commenced by Writ issued on 19 April 2004.

Annexed to the Writ was the Plaintiff’s Statement of Claim. An amended Statement of Claim dated 25 August 2005 was subsequently filed and served. An amended Statement of Defence was filed on behalf of the Defendants (except Eighth and Eleventh) on 21 February 2006.

The initial hearing was conducted in Labasa on various dates between February and May 2008. Although the evidence had been completed and submissions filed, a judgment was not delivered.

When the action was called before me for mention in June 2009 and after hearing Counsel I directed that the action be re-heard.

The re-hearing took place in Labasa between 20 and 22 October and resumed part heard in Suva on 30 November 2009. During the hearing, the Plaintiff called three witnesses and the Defendants called a total of 12 witnesses to give evidence. At the conclusion of the evidence a timetable for the filing of written closing submissions was determined.

The Plaintiff eventually filed written submissions on 15 February 2010. The Defendants filed answering submissions on 9 March 2010. The Plaintiff filed a reply submission on 19 March 2010.

There is one issue that the Court proposes to consider before proceeding further with its judgment.

Order 22 Rule 7 of the High Court Rules states:

"Except in an action to which a defence of tender before action is pleaded and except in an action all further proceedings in which are stayed by virtue of rule 3 (4) after the trial or hearing has begun, the fact that money has been paid into court under the foregoing provisions of this Order shall not be pleaded and no communication of that fact shall be made to the Court at the trial or hearing of the claim or counterclaim or of any question or issue as to be debt of damages until all questions of liability and of the amount of debt or damages have been decided." (emphasis added).

Contrary to this Rule paragraph 9 (b) of the Defendants’ Amended Statement of Defence pleads:

"The said sum of $7000 has been paid into this court."

Furthermore and again contrary to the Rule, the Minutes of Pre-Trial Conference dated 29 May 2007, signed by Counsel and filed on 31 May 2007 under the heading of agreed facts at paragraph 5 state:

"The sum of $7000 has been paid into Court by the First Defendant."

At the commencement of the re-hearing this matter was raised by the Court with Counsel. The explanations that were provided were unsatisfactory. Counsel for the Defendants claimed such a practice was allowed in the pleading rules in New Zealand. Counsel also indicated that then Master of the Court had instructed the parties to include that fact in the Pre-Trial Conference Minutes.

The parties indicated that, despite the non-compliance with the Rule and the obvious risks that disclosure of such a fact presented, they did not intend to make an application for me to remove myself. Counsel indicated that the re-hearing of the action should proceed.

The background to the action may be stated briefly. The Plaintiff was at all material times a member of the First Defendant. The First Defendant (the Co-operative) is a co-operative society under the Co-operatives Act 1996 (the Act).

The Co-operative’s By-laws were registered in June 1994. They were introduced into evidence as exhibit 27. Clause 3 of the By-laws sets out the objects of the Co-operative and for the purpose of the present proceedings, objects (a) and (b) are relevant:

"(a) To purchase from Carpenters (Fiji) Limited the land comprised in C.T. X1/05/29, C.T. X1/05/33, C.T. X1/05/85 and C.T. X1/05/86 in the district of Cakaudrove on the island of Taveuni in the province of Cakaudrove.

(b) to arrange for the sub-division, survey and distribution of holdings among the members so as to provide one holding but not more than one holding for each member, upon such terms and conditions as the general meeting shall determine, and to enter into an agreement with each member accordingly in the form annexed as schedule ‘A’ to these by-laws."

It should be noted that the Co-Operatives By-Laws were registered under the Co-Operative Societies Act Cap 250. That Act was repealed by section 122 of the Act. Section 121 of the Act states:

"(1) A Co-operative which was registered under the provisions of the Co-operative Societies Act shall be deemed to be a co-operative under this Act.

(2) A co-operative that is deemed by virtue of sub-section (1) of this Section to be registered under this Act shall adopt to the satisfaction of the Registrar its by-laws in conformity with this Act not later than two years from the commencement of this Act."

It was not made clear to the Court whether the Co-Operative’s By-laws that were in evidence complied with this provision.

In any event the Court would be required to apply section 17 of the Act when considering the application of the By-laws to the circumstances of this case. Section 17 states:

"(1) A co-operative may, consistent with this Act, make any by laws that are necessary or desirable for the purposes for which a co-operative is established.

(2) The by-laws of every co-operative shall include provisions in respect of matters mentioned in the First Schedule of this Act."

It was agreed by the parties that the Co-operative had become the registered proprietor of two blocks of land on Taveuni Island comprised in Certificates of Title Volume X1/05 Folio 33 and Volume X1/05 Folio 229 commonly referred to as "Burotu" and "Nayalayala" respectively.

Although it was agreed by the parties in the Minutes of the Pre-Trial Conference that the Plaintiff had been allocated an agricultural lot at Burotu where he had also resided, the document confirming and evidencing the allocation of lots at Burotu indicated that a residential lot had been allocated to him. However, it was not disputed that the Plaintiff did reside at Burotu before the dispute the subject matter of the present action arose.

The dispute in this action is essentially concerned with the transaction that allegedly took place on 7 December 2000 whereby the Plaintiff claimed that he had acquired lot 11 on plan DP8525 being part of the land on Certificate of Title Volume X1/05, Folio 229 being the land referred to as "Nayalayala" (the property). It was accepted that Lot 11 was part of a survey plan of the Nayalayala land obtained by the Co-operative.

In his amended Statement of Claim the Plaintiff claimed that:

"5. By an agreement in writing made between the Plaintiff and the 1st Defendant on the 7th day of December 2000 the Defendant agreed to sell and the Plaintiff agreed to purchase the property at the price of $20,000.00 (Twenty thousand dollars).

6. The agreement for the sale of the property was contained in a document titled Request to Purchase Lot 11 DP8525 at Nayalayala and the Schedule A form of the 1st Defendant’s co-operative which incorporated all of the terms expressly agreed and signed by the 1st Defendant through its servants or agents and expressly accepted by the Plaintiff.

7. The Plaintiff intends to use the original or a copy of the agreement at the time of the trial.

8. After the formation of the contract, the Plaintiff moved his family and occupied the said property as part of the terms of the contract.

9. The Plaintiff had deposited with the Defendant the sum of $7,500.00 of the purchase price amounting to $20,000. By a rider to the contract, the Plaintiff is obliged to pay to the 1st Defendant the difference between the deposit actually paid which at all times remains due from the Plaintiff to the 1st Defendant. The Plaintiff is always prepared to pay the balance of the purchase price if given the chance to do so.

10. The contract stipulated that the Plaintiff should pay the balance of the purchase price upon receipt of the registered title in his name from the Defendant."

The Plaintiff alleges in paragraph 11 of his Statement of Claim that the First Defendant by its servants or agents being the second through to the eleventh Defendants on 17 April 2001 forcibly and unlawfully entered the property and removed the Plaintiff, his family and their belongings. It is claimed that the Defendants remained in possession of the property until the dwelling was burnt on 16 August 2001.

The Plaintiff pleads that this conduct gives rise to three causes of action. First he claims that the Defendants have breached the contract and as a result he has suffered loss and damage.

Secondly, he claims that the Defendants’ conduct gives rise to a claim for trespass. He claimed that the Defendants entered the property without licence or consent. The Plaintiff claims that their forcible removal from the property was motivated by malice and spite with the intention of humiliating the Plaintiff and his family. As a result the Plaintiff has experienced anguish and mental distress and suffered loss and damages.

Thirdly, the Plaintiff claims that the Defendants’ conduct amounted to nuisance in that they interfered with his right of quiet enjoyment of the property. Alternatively the Plaintiff claims that the nuisance arose as a result of the Defendants’ encroaching on the property and directly causing physical injuries to it thereafter.

The relief claimed by the Plaintiff is for specific performance of the sale and purchase agreement between the Plaintiff and the First Defendant. The Plaintiff also claims special damages and general damages arising out of the three pleaded causes of action. Interest and costs are also claimed.

In the amended Defence filed on 21 February 2006, it is admitted that Defendants two to seven and Defendants nine and ten were at all material times members of the First Defendant.

The Defence pleads that at no stage was there an allocation of lot 11 to the Plaintiff in accordance with the Co-operative’s By-laws.

The Defence states that Lot 11 DP 8525 (the property) was a parcel of land that appeared on a survey plan prepared in 1999 for the First Defendant. The Defence admits that the property is part of the land contained comprised in CT Volume X1/05 Folio 229, (the Nayalayala land). It is claimed that no separate title exists in respect of the property described as Lot 11 DP 8525.

The Defence acknowledges that there were two dwellings erected on the property. The Defence states that the property was the First Defendant’s headquarters in about December 2000. The first dwelling was occupied between April 1998 and March 2001 by Dayal Patel who had held the office of Secretary of the Co-operative from June 1994 to 10 January 2001. The second dwelling, described as a temporary residence, was occupied by the Plaintiff’s sister who was at the time employed by the Co-operative to assist the Secretary.

The Defendants deny that the Plaintiff made an application to be allocated property in accordance with the Co-operative’s By-laws. It is claimed that no agreement in the form of Schedule A to the By-laws has ever been produced by the Plaintiff and that the letter upon which the Plaintiff relies to support his claim does not constitute an agreement between the parties for the allocation of the property to the Plaintiff.

The Defence claims that the Plaintiff occupied the vacant dwelling house on the property shortly before Easter in 2001 without the consent of the First Defendant. As a result the Defendants subsequently evicted the Plaintiff shortly after Easter. It was claimed that the Plaintiff had been permitted to occupy the dwelling on the property only for the duration of the Easter festival as its invitee or licensee.

It is convenient at this stage to determine a number of preliminary issues relating to the agreement and the property. Having considered the evidence, I make the following findings on the balance of probabilities.

I am satisfied that the Plaintiff resided on an allocated lot at Burotu with his family until about 13 April 2001. I am also satisfied that the property was occupied by Dayal Patel and his family until about March 2001. At that time the three bedroom dwelling was also used as the Co-operative’s office. As Secretary of the Co-operative Dayal Patel was entitled to reside in this larger dwelling. I am also satisfied that at that time the Plaintiff’s sister Maraia Kelepi occupied the smaller dwelling at the rear of the principal dwelling by virtue of her employment as an administrative assistant to Dayal Patel. Her father also resided in the smaller dwelling with her.

The Plaintiff’s claim commences with a letter dated 17 November 2000 addressed to the Chairman of the Co-operative wherein the Plaintiff made a request to purchase residential lot with house at Nayalayala. That letter stated:

"Dear Sir,

I humbly request to purchase residential lot with house at Nayalayala because I am facing difficulties in residing at Burotu. I as the financial member of the Society having contributed $7500 which exceeds the provisional price of a residential freehold block I would like to purchase the iron and concrete house which is being occupied by the Secretary Mr Dayal Patel. Sir, as you could understand the persistence situation which I am facing with my family I would be indeed grateful if my humble request could be considered favourably on humanitarian grounds. I am prepared to meet the contribution that may be laid down by the Society. Since members of my family are also residing in the block at present and who are also financial members I would be grateful if there’s an opportunity given."

This letter confirms that the Plaintiff had been residing at Burotu. He apparently wanted to move to Nayalayala for humanitarian reasons as a result of difficulties and the "persistence situation" at Burotu. However no details were provided in the letter.

The letter also confirmed that at the time the Co-operative’s Secretary Mr Dayal Patel was residing in the property at Nayalayala.

The reference to "having contributed $7,500.00 is not clear. Paragraph 9 of the amended Statement of Claim alleges that it was paid to the Defendant as a deposit of the purchase price for the property at Nayalayala. Paragraph 9 (a) of the Amended Defence pleads that the Plaintiff paid a total $7000.00 to the first defendant which was to be assigned towards the purchase price of lot 13 in Burotu subdivision. The Defendants deny that any other moneys were paid by the Plaintiff to the First Defendant.

In his written statement which constituted his evidence in chief and which was admitted into evidence as exhibit 9, the Plaintiff stated that he first bought an agricultural block at Burotu in the year 2000 or 2001"and I paid a deposit of $7500.00." In the same statement he indicated that the purpose of the letter was to request a transfer of the Burotu block for the Nayalayala block. In other words the Plaintiff in fact sought to have the deposit of $7500.00 that he claimed that he had paid as the deposit on the Burotu block he treated as a deposit on the block he wanted to acquire at Nayalayala.

In view of the evidence before the Court and considering the admission in the amended Defence I find that the Plaintiff did pay the sum of $7000 to the first Defendant for his allocated block at Burotu on a date that I am unable to determine. In making this finding I have accepted the evidence of Philip Covert who was for some years Treasurer of the Co-operative.

Produced as exhibit 5 was a letter dated 7 December 2000 from the Co-operative addressed to the Plaintiff. It was a handwritten letter on the Co-operative’s letterhead writing paper. Omitting the greeting and the first paragraph, the letter stated:

"Many thanks for your letter dated 17.11.2000 addressed to the Chairman of the Society.

Due to time constraints I had personally met with the majority of the Board Members of the Society to discuss your urgent request. The Society Management had acceded to your request and have allocated you Lot 11, DP 8525 situated at Nayalayala.

This lot has a concrete house, and your family members who are also financial members of the Society, are also occupying part of the said Lot 11 DP 8525. This letter legally entitles you and your family to occupy the concrete dwelling house and use lot 11 DP 8525 as your freehold residential property as you have already paid $7500.00 which exceeds the provisional price. The actual price of the said property (house and land) is $20,000.00 exclusive of other costs. Please be mindful that your family members who are financial members of the Society, have also made financial contributions to the Society. You are required to make the balance of payment of the actual price on lot 11 DP 8525 situated at Nayalayala upon issuance of the title of the said Lot 11 DP 8525 to you by the Society.

Your request has been approved on the merit that you had contributed a lot towards the success of this project in your capacity as an Advisory Councillor.

Thank you for investing and having confidence in the Co-operative Society.

Your contribution and support towards the development of the Co-op Society and Taveuni as a whole is hereby acknowledged and appreciated."

The letter is signed by Dayal Patel as Secretary/Director of the Co-operative. Below his signature block are the printed names of seven people including Dayal Patel. In his evidence the Plaintiff stated that the names were the names of Board members. He stated that six of the seven Board members indicated their concurrence by signing the letter at the same time at the home of Meli Tawanakoro (the Chairman of the Co-operative) at Nayalayala.

The Plaintiff also stated that the seventh Board member Viliame Tomu, signed the letter in the presence of Meli Tawanakoro and himself at Naqara some time after the others signed.

The Plaintiff claimed that this letter amounted to acceptance by the Co-operative of his offer to acquire the property. The Plaintiff claimed that there was, as a result, a sale and purchase agreement in respect of the property. However the Plaintiff did not produce a completed copy of the agreement marked Schedule A to the Co-operative’s By-laws.

The Defendant denied that the correspondence constituted a sale and purchase agreement on two grounds. First it was claimed that the transaction did not comply with the Co-operative’s By-laws. Secondly the Defendants asserted that the letter dated 7 December 2000 was not genuine.

Dealing first with the question of compliance with the Co-operative By-laws Clause 3 (b) in fact makes provision for three objects. First, to arrange for the sub-division, survey and distribution of holdings among members. Secondly, the provision of one holding only for each member upon such terms and conditions as the general meeting shall determine. Thirdly, to enter into an agreement with each member accordingly in the form annexed as Schedule ‘A’ to the By-laws.

It is apparent that the land that is to be sub-divided, surveyed and distributed as holdings among members is the land that is to be purchased from Carpenters (Fiji) Limited being the land described in clause 3 (a).

What each member is entitled to receive upon the terms and conditions determined by the general meeting is a holding. The word "holding" is not defined in the Co-operative’s By-laws (the "By-laws").

Clause 11 of the by-laws states:

"Shares shall be allotted in accordance with the block of land occupied by a member ...."

Although the terminology is somewhat imprecise it would seem that the words "block of land" refer to a holding that has been sub-divided, surveyed and distributed to a member under clause 3 (b).

The Shorter Oxford English Dictionary describes a holding as property held, specifically a tenement. A tenement is that which is held by a tenant.

The consideration for acquiring the holding was the payment by the member of a sum of money for the purchase shares over a period of time.

Clause 11 of the by-laws also states:

"... the number of shares to be held by members occupying blocks is set out in Schedule D to these by-laws ...."

The agreement that is Schedule A to the Co-operative’s By-laws does provide some assistance in determining what is meant by the word "holding". The preamble in part states:

"Whereas the member has declared the intention in acquiring for himself a block of land within the area (described in object 3 (a) of the By-laws)."

Clause 1 states:

"The member agrees to purchase from the Society not less than ... one dollar shares in the Capital of the Society (which have been reserved for him by the Society) on the execution of this Agreement at the time and in the manner provided in the Schedule hereto."

Clause 6 states:

"To secure payment of the moneys payable to the society under this agreement the member will give to the Society a crop lien and/or assignment in respect of the crops hereinafter to be grown on the said land ....."

Clause 12 states:

"In the event of the relinquishment of the said land by the member with the consent of the Society and any other interested party and the Society takes over the said land such compensation shall be payable as may be mutually agreed between the member and the Society for improvements that they have been executed in the said land by the member of any predecessor ...."

Clause 16 states:

"In the event of the member failing to comply with any of the provisions of this Agreement the Society may, by notice in writing to the member, terminate this agreement in such event, the member, shall, within three (3) months after such determination, vacate the said land and deliver up vacant possession thereof to the Society and the provisions of clause 12 of this Agreement shall apply (mutatis mutandis)."

Clause 17 states:

"This Agreement is subject to and not independent of the registered by-laws of the society."

The Agreement also contains clauses requiring payment of interest and dues. There also are clause setting out obligations and prohibitions in relation to the use of the land.

When read together it is clear that the intention of both the By-laws and the Agreement is that the Co-operative shall retain ownership of the land that is described in object 3 (a) of the By-laws. What the member acquires for consideration in the form of sale and purchase of shares is a right to possession of the subdivided and surveyed block of land described as a holding. It is a right to exclusive possession that is acquired.

The agreement in the form of Schedule A to the By-laws is not a sale and purchase agreement of a block of land as it is not an agreement for the purchase of freehold title by the member from the Co-operative. There is an agreement for the sale and purchase of shares which also entitles the purchaser to exclusive possession of an allocated holding.

Clause 3 (b) of the By-laws contemplates the distribution of a holding to a member of such terms and conditions that the general meeting shall determine. The clause also contemplates the existence of an agreement in the form of Schedule A. The Plaintiff claims that the letter dated 7 December 2000 complies with the first requirement. The Plaintiff also pleaded in his Statement of Claim that in paragraph 6 that there was a signed Schedule A agreement that complied with the second requirement.

So far as the Schedule A Agreement is concerned no such document was put into evidence or produced during the re-hearing. No Schedule A Agreement was produced to support the alleged distribution or acquisition of the property to the Plaintiff in accordance with the By-laws.

The explanation offered in evidence by the Plaintiff and his witness was unconvincing and unsatisfactory. I am inclined to accept that when the dwelling house on the property was burnt down it was completely empty. It is also surprising, if not inconsistent, that the Plaintiff requested that he be allowed to retain the original letters dated 17 November and 7 December 2000 to substantiate his claim but did not request that he be given at least a copy of the Schedule A Agreement that he claimed had been signed by the relevant office bearers specified on page 7. Such a document was required by the By-laws and was essential for him to establish that he had been allocated a holding in consideration for the purchase of shares.

In his amended Statement of Claim the Plaintiff does not provide any particulars as to the date of the Schedule A agreement nor does he identify by whom the agreement was made on behalf of the first Defendant. It is also noted that the Plaintiff did not properly deal with the issue of discovery of the particular Agreement.

The other requirement under clause 3(b) of the By-laws is that the terms and conditions for the distribution of the holding to the Plaintiff must be on such terms and conditions determined by the General Meeting.

There was no material before the Court to establish that the conditions set out in the letter dated 7 December 2000 had been determined by the general meeting of the Co-operative. The terms and conditions for the distribution of blocks of land as holdings were required to be determined by the general meeting by either a resolution that had general application or by a series of resolutions that applied to the distribution to individual members.

In this case the terms and conditions in the letter dated 7 December 2000 are those that were allegedly approved by the Board members present who allegedly signed the letter.

Section 63 of the Act deals with the role of the Board (or Committee in this) and so far as is relevant states:

(1) The Board shall be the administrative and management organ of the co-operatives and it shall:

• (a) exercise such powers as shall be delegated to it in accordance with this act and by the General Meeting
  
• (b) ....
  

(2) The Board shall

• (a) comply with the provisions of this Act, as well as with the by-laws of the co-operative and shall ensure that they are applied;
  
• (b) – (j) ....
  

(k) implement all decisions taken by the General Meeting.

Consistent with these provisions, the Co-operative’s By-laws provided for the role of the Committee to be, inter alia, as follows:

"24. The Committee shall be the executive authority of the society and subject to any directions from a general meeting of the society and to the by-laws of the society, it shall manage the affairs of the society."

26. The committee shall keep a minute book recording the proceeding of all its meetings and all proceedings of General Meetings."

There was no material before the Court to suggest that the General Meeting (even if it was able to) had delegated the function that was its responsibility under clause 3 (b) of the By-laws to the Committee. There was no material to suggest that the terms of the transactions contained in the letter dated 7 December 2000 had been either specifically approved for this member or had been determined as general terms applicable to all distributions of holdings to members.

Further the general power given to the Committee to enter into contracts on behalf of the Society under By-law 29 did not affect the specific provision in By-law 3(b) that the General Meeting determine the terms upon which holdings were to be distributed to members.

Whilst it may be argued that the Schedule A agreement set out the terms and conditions determined by the general meeting, in the absence of a copy of that agreement, it was not possible for the Court to determine whether the terms in relation to the payment of the consideration of $20,000 were in accordance with the Schedule A agreement. The arrangement in the letter dated 7 December 2000 that the balance of the consideration be paid upon receipt of a registered title in the Plaintiff’s name would appear to be inconsistent with the scheme of payments that appears to be part of the Schedule A agreement. There was no material before the Court to indicate that the general meeting had authorised the Board to vary the Schedule A agreement either in this case or generally. There was no evidence to suggest that the general meeting had approved the terms of the arrangement set out in that letter.

There is a further issue arising out of the arrangement that the balance of the consideration he paid upon the receipt by the Plaintiff of a registered title. It was clear from the evidence that at that time there were no immediate plans by the Co-operative to complete all the formal requirements necessary for registered certificates of title to be issued in respect of the subdivision at Nayalayala. Therefore the payment of the balance of the consideration by the Plaintiff as purchaser was to be at some time in the future not yet determined and therefore uncertain. The payment of the balance of consideration and the handing over of a registered title to the purchaser are major terms the time for performance of which were in the letter dated 7 December 2000 so vague and indefinite that the intention of the parties as to when that time would occur cannot be ascertained with reasonable certainty. The property was, so far as the parties were concerned, no more than part of the land described in Certificate of Title X1/05 Folio 229 and generally referred to as "Nayalayala". Of all the land registered in the name of and owned by the Co-operative there was some evidence at the hearing that there may have been one certificate of title registered in respect of one sub-division. That title was not for the property the subject matter of this dispute.

Furthermore, as an issue on the facts, it is difficult to determine when the Plaintiff was entitled to take up possession of the property. As at 7 December 2000, Dayal Patel was still the Secretary of the Co-operative and as such still entitled to occupy the property. There was no evidence before the Court to suggest that Dayal Patel was aware on 7 December 2000 that he was soon to be removed as Secretary. Therefore there was no reason why Dayal Patel as Secretary would wish to relinquish occupancy of the property as at 7 December 2000. If, on the other hand Dayal Patel was aware on 7 December 2000 of plans by members to remove him as Secretary at some time in the near future, then this arrangement may be seen in a different light. In any event the lack of any reference to taking up possession adds to the uncertainty of the transaction.

The second ground on which the Defendants challenge the validity of the agreement evidenced by the correspondence is the bona fides of the letter dated 7 December 2000. First, the Defendants say that one of the signatures on the letter was forged. The allegation is that the Plaintiff’s claim is fraudulent. As such the Defendants are required to plead the allegation in their Defence and are also required to establish the facts that constitute the fraud at the trial of the action. The onus of proof to establish fraud is with the Defendants.

In paragraph 7 (a) of the Amended Statement of Defence the Defendants say:

"A copy of a document of the nature referred to by the Plaintiff in paragraph 7 of the amended Statement of claim has been shown to the First Defendant’s present and past Board members who deny its authenticity."

Although no particulars were provided and nor were any sought as to the basis of the denial of authenticity, I am satisfied that the Plaintiff was provided with sufficient notice that the Defendants were alleging fraud by this assertion.

There was evidence led by the Defence on the question of the authenticity of the signature of one of the Board members that appeared on the letter dated 7 December 2000. This related to the signature of the Board member Viliame Tomu.

Viliame Tomu was called as a witness to give evidence by the Defendants. Mr Tomu stated in his evidence that he was a board member of the Co-operative between 1997 and 2001. Although he was shown the letter dated 7 December 2000, he stated that he could not read English. He stated that the signature next to his printed name was not his signature. He stated that he was not called to a meeting of the Board at that time. He said he could not recall whether the Plaintiff and the then Chairman visited his house to get him to sign the letter. He was sure that the signature was not his signature. Admitted into evidence as exhibit 33 was an affidavit made by Tomu and sworn on 21 March 2005. That affidavit had been filed in earlier proceedings between the parties concerning the removal of a caveat over the property. In that affidavit the witness also denied that the signature was his signature.

Under cross-examination the witness maintained that when the Plaintiff saw him at his stall at the Suva market, the Plaintiff requested him to sign a document before a lawyer. He denied that the Plaintiff had accused him of changing his story for money. Although this conversation at the Suva market between the Plaintiff and Viliame Tomu was allegedly witnessed by a person named Tadeo Mataiasi, a relative of the Plaintiff, Mr Mataiasi was not called to give evidence. No explanation was provided by the Plaintiff for not calling this person to corroborate the Plaintiff’s assertion that Tomu had changed his story for a payment of $700 from the Co-operative to help with school fees.

Two other members of the Board whose names were printed in handwriting on page 2 of the letter dated 7 December 2000 were also called by the Defendants to give evidence.

Inia Kumunaga stated that he was a member of the Board in December 2000. He admitted that the signature next to his printed name appeared to be his signature. He denied that he signed the letter at a meeting in December 2000. He stated that a document was brought to him and to the others individually for signing. He appeared to be claiming that he thought he was signing documents connected with the Taukei Farmers Union. He said that he did go to a Taukei Farmers Union meeting at about that time.

An affidavit made by Inia Kumunaga and sworn on 20 September 2005 was admitted into evidence as exhibit 24. This affidavit had also been filed in proceeding concerned with the removal of a caveat over the property. In that affidavit he stated that the document he signed was brought to him by the then Chairman Meli Tawanakoro.

Tomu Tuilaucala stated that he was also a member of the Board in December 2000. He admitted that the signature next to his printed name was his signature. He could not recall how his signature was on the document and nor could he recall attending any meeting.

Apart from Dayal Patel, the Plaintiff did not call any witness who may have been present at the meeting that allegedly occurred on 7 December 2000 and whose name appeared on page 2 of the letter of the same date.

The Defendants asserted that even if there was a meeting held on 7 December 2000, it was not a properly constituted meeting. At least four committee members (Shankaran, P Lovel, T Rasova and V Tomu) gave evidence to the effect that they did not receive any notice of such a meeting. When cross-examined on this point, the Secretary (Dayal Patel) appeared not to seriously dispute this evidence.

Clause 23 of the Co-operative’s By-laws states, in part, that:

".... At least three days notice of a meeting shall be given to all committee members provided that ...."

There was no evidence that the meeting was a regular monthly meeting notice of which was not required pursuant to the proviso.

The Defendants also challenged the alleged decision on the basis that it had not been passed by a meeting at which the required number of members were present.

Under section 64 of the Act, the Committee must consist of at least three members and shall be three or a multiple of three. As at 7 December 2000 there were 12 members of the committee.

Section 69 of the Act states that the committee may validly conduct its business when at least one half of its members are present. Decisions of the committee are to be taken by a majority of votes cast (i.e. those present at the meeting).

Even if it is accepted that all the persons whose names are printed in the letter dated 7 December 2000 were present at the same time except for Viliame Tomu, that leaves just six persons, and this would satisfy the requirement of 50% attendance to validly conduct business. However the Defendants claimed that the Secretary was not eligible to participate as a voting member of the Committee. The Defendants appeared to rely upon clause 21 of the By-laws which states:

"The Committee shall consist of the Chairman, a Deputy Chairman, a Secretary and an Assistant Secretary (provided that they be unpaid) a Treasurer and other members to make a total of twelve members."

In addition, clause 26 states:

"The Secretary and the Assistant Secretary, if they are not members of the Committee, may be paid such remuneration from the funds of the Society as the Registrar may approve."

The effect of these provisions would seem to be that Dayal Patel as a paid secretary could not be a member of the Committee. However his presence at meetings was essential. The inference to be drawn is that he could not vote at such meetings. Whether this meant that there should have been twelve members apart from the secretary is not clear.

In the event that the Defendants’ assertion is correct then only five voting members were present on 7 December 2000 at the meeting, if indeed such a meeting was actually convened.

The issue for the court is to determine whose evidence is to be relied upon in relation to the disputed factual questions that call for determination. The questions are: first, whether the signature next to Viliame Tomu’s printed handwritten name is his signature; secondly, was a meeting conducted on 7 December 2000 where all those present signed the letter at the same time; and thirdly, was the meeting a properly convened board meeting of the Co-operative or was it a meeting of some other organisation as claimed by Inia Kumunaga?

I have no doubt that each witness was giving his evidence to the best of his recollection and to the best of his ability. It is fair to say that after some nine years, the evidence given by the witnesses about the events of 2000 and 2001 was as much based on reconstruction as on memory.

In Faryana v. Chocny [1952] 2 D.L.R 354 at page 356-7 the Court said:

"The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. .... Again, a witness may testify what he sincerely believes to be true but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth" is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion."

Having considered the evidence carefully I have concluded that the signature next to the name of Viliame Tomu is not his signature. From the evidence before me it is clear that he has consistently denied that it is his signature. The letter itself was not brought to the attention of the new Board until some time after the events that occurred between December 2000 and April 2001. From the time when the Plaintiff presented the letter dated 7 December 2000 to the Board, Tomu has denied that he had signed the letter. It was certainly not disputed that he was not present when some or all of the other signatories signed the letter. In his evidence (his written statement as exhibit 9) the Plaintiff does not provide any details as to when or how long after 7 December 2000 is Tomu alleged to have signed the letter. It is claimed that Tomu was given a copy of the letter. However that fact was not put to Tomu in cross-examination. Furthermore Tomu maintained that he cannot read English.

I am satisfied that the letter dated 7 December 2000 was not genuine in that one of the signatures was forged.

I am satisfied that if such a meeting did take place on 7 December 2000 it was not properly convened in accordance with the Co-operative’s By-laws.

As a result of the aforegoing I have concluded that not only was the transaction that the correspondence purported to effect not in accordance with the By-laws of the Co-operative but it was also dishonestly executed. In addition there was no Schedule A agreement as required by clause 3 (b) of the By-laws. Therefore there was no allocation of a holding to the Plaintiff as claimed.

It is claimed by the Plaintiff that pursuant to the arrangement that appeared to have been made as discussed above, he and his family moved from Burotu to the property at Nayalayala on Good Friday 13 April 2001. Prior to that time the property had been occupied for a short period by Anil Shankaran who had been elected Chairman in January 2001. Dayal Patel was replaced as Secretary at the same time and was evicted from the property in early March 2001.

Some of the Defendants attended the property on Sunday 15 April 2001 and asked the Plaintiff and his family to leave. On 17 April a group of the Defendants returned to the property and upon entering removed the Plaintiff’s belonging from the house on the property and placed them on the side of the road in front of the property.

On the balance of probabilities I find that the Plaintiff did not show either a copy of or the original letter dated 7 December 2000 to any of the Defendants. Nor did any person on behalf of the Plaintiff show that letter to the Defendants who attended at the property on 17 April 2001 when the Plaintiff was elsewhere.

The questions for the court are first whether the entry of the Defendants on to the property on 17 April 2001 and secondly the subsequent removal of the Plaintiff’s possessions from the house to the side of the road outside the property amount to trespass to land and to goods.

The Defendants do not deny that they entered on to the property on 17 April 2001 and removed the Plaintiff’s possessions from the property and placed them outside the property adjacent to the roadway. The Defendants pleaded that they had justification for entering the property and for removing the Plaintiff, his family and his possessions from the property.

It certainly cannot be disputed that the Plaintiff and his family were in actual possession of the property on 17 April 2001. The Plaintiff claimed to be entitiled to possession as at that date by virtue of the agreement he claimed to have made with the first Defendant on 7 December 2000.

Be that as it may, his right to remain in possession was sustainable against every other person other than a person who could establish a better right to possession. The first defendant at all time held the legal or registered title to the land. The Plaintiff could only claim to have a right to possession as against the first defendant if the agreement dated 7 December 2000 was enforceable as against the first defendant.

The Court has already made a finding in relation to that agreement that its terms did not comply with the Co-operative’s By-laws and that it was so uncertain as to be unenforceable. Furthermore, it was not a genuine agreement.

The Plaintiff was therefore not entitled to possession of the property on 17 April 2010 and as against the First Defendant was a trespasser. As a result the Defendants were entitled to enter on the land and remove the Plaintiff’s possessions on 17 April 2001 and place them outside the property.

The Plaintiff also claims that he has a cause of action in nuisance. The Plaintiff must show that the Defendants by their conduct have interfered with his use or enjoyment of the property. The basis of liability is usually the possession and control of land from which the nuisance proceeds. There is also some authority for the proposition that an action for private nuisance may be brought for an interference that is not connected with any use of land by the defendant. In nuisance the defendant’s conduct or the act complained of does not directly affect the person or property of another, but has consequences which become or are prejudicial to his person or property (see Halsbury’s Laws of England 4th Edition Volume 34 paragraph 302 and 307).

In Esso Petroleum Co. Ltd v. Southport Corporation [1956] AC 218 at page 224 Devlin J observed:

"It is clear that to give a cause of action for private nuisance the matter complained of must affect the property of the Plaintiffs. But I know of no principle that it must emanate from land belonging to the Defendants. ... and I can see no reason why, if land or water belonging to the public, or waste land, is misused by the Defendant, or if the defendant as a licensee or trespasser misuses someone else’s land, he should not be liable for the creation of a nuisance in the same way as an adjourning occupier would be."

There are no facts pleaded in the amended statement of claim and there was no evidence before the Court to suggest that the defendants had committed any act or caused any event to occur on 17 April 2001 that affected the property, even assuming that the Plaintiff had a right to occupy or a right to possession of the property as against the First Defendant. The Plaintiff has not established his claim for damages for nuisance.

The evidence established direct physical interference for trespass to land and to goods. I have already concluded that the first defendant had a better right to possession and that the actions of the defendants were justified. There was however no conduct that would affect or constitute prejudice to the land whilst the Plaintiff was in possession of the property.

In conclusion I find that there was no enforceable agreement between the Plaintiff and the First Defendant. The Plaintiff therefore had no right to take possession of the property on 13 April 2001. His removal by the Defendants did not constitute a breach of any agreement, was a justified trespass and did not amount to private nuisance.

The Plaintiff’s claims are dismissed. The Plaintiff is to pay the Defendants’ costs on a party party basis to be agreed and if not agreed to be taxed.

W D Calanchini
JUDGE

19 April 2010
At Suva