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Narayan v Nairirileka Co-operative Land Purchase Ltd [2015] FJHC 427; Civil Action 38.2013 (10 June 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 38 of 2013

BETWEEN:

SHIU NARAYAN
of Malawai, Dreketi, Labasa, Retired
PLAINTIFF

AND :

NAIRIRILEKA CO-OPERATIVE LAND PURCHASE LIMITED,
a limited liability company having its registered office at Labasa Town.
DEFENDANT

Appearance : Mr Sharma S., Counsel of Samusamuvodre Sharma Law for the Plaintiff
Mr Kohli A., Counsel of Messrs Kohli & Singh for the Defendant

Date of Judgment : 10 June 2015

JUDGMENT

[1] The Plaintiff issued the Writ of Summons on 21 November 2013 and prayed for the following reliefs as per the Statement of Claim:

(i) Order for specific performance directing the Defendant to execute the transfer document for 16 acres of land of Certificate of Title Nos. 3162 and 3166 situated at Dreketi, on the Island of Vanua Levu, containing an area of approximately two thousand three hundred and eighty (2,380) acres;

(ii) General Damages;

(iii) Exemplary Damages;

(iv) Punitive Damage;

(v) All cost occurred in this action;

(vi) Any other or such relief as this Honorable court may deem just expedient.

[2] On the 27th of January, 1968 an agreement was entered for sale and purchase of land contained in CT 3162and CT 3163, hereafter referred to as the Agreement.

[3] Background

3.1 The Defendant was originally known as the Committee of Management which entered into an agreement with the Vendor, Vijay Raghubar Singh on 27 January 1968 to Purchase the land known as Nairirileka in consideration for $22,150.00.

3.2 The Committee of the Management had agreed to in Clause 17 and 18 as follows (P1):

"17. The Vendor and the Purchasers agree that when this sale was first agreed upon there were certain other occupiers of the land who had agreed to be Purchasers but who are not present to sign these presents today. If any of them shall sign this agreement within 21 days from the date hereof and shall pay to the Vendor such contribution toward the Purchase Price as the Committee of Management hereinafter provided for shall decide, they shall enjoy all the rights and be subject to all the obligations as if they had this day executed this agreement".

3.3 It was agreed in Clause 18 as follows:

"18. The Purchasers recognize the need for a Committee of Management to decide upon the rights and obligations of the Purchasers between themselves and agree to the appointment of such a Committee with the powers:

(a) to work out the area of land allocated to cash purchaser and to resolve any boundary dispute between the Purchasers;

(b) to make an interim assessment of the portion of the Purchase Price to be contributed by each Purchaser, and to make final assessment when the holding of cash Purchaser has been surveyed;

(c) (not clear)...Purchaser intending to sell his share and to make recommendations to the Vendor, it being agreed that first option shall be given to on existing Purchaser;

(d) to evict any Purchaser who may fail to pay his share of the Purchase Price".

3.4 There were several named changes to the Defendant and now known as Nairirileka Cooperative Land Purchase Limited the Defendant in this case (agreed fact).

3.5 It was agreed that the Plaintiff is a registered member of the Defendant.

3.6 Originally the land purchased is in extent of 2380 as per Certificate of Title Nos. 3162 and 3166 which comprises of land in extent 1,380 acres and 1000 acres respectively. The said CT Nos. 3162 and 3166 were surrendered and new Title No. 27798 was issued to the extent of 2,359 acres 3 roods and 35 perches which was an agreed fact.

3.7 The original purchasers of the said land formed a Land Purchase Committee in terms of the Agreement dated 27 January 1968 it functioned until 21 January 1969 until the election of the Executive Committee on 21 January 1969 and with the financial assistance of the government it was named as Nairirileka Land Purchase Cooperative Limited the present Defendant and members of the Nairirileka Cooperative resolved that property should be sub-divided into individual lots for each member and each member agreed to allocate part of their land for common amenities and the Plaintiff's father dedicated 28 acres of his allocation for the said purpose.

3.8 The Plaintiff's father was allocated 100 acres of interests in the said land along with other members. Apart from the original purchasers there were more purchasers made, a request to include them in the agreement marked P1 dated 27 January 1968. This request was made on 5 March 1968.

3.9 Most of the survey on the land was completed and members were issued with individual titles to their leases and once the survey was completed member who have lesser acreage of their entitlement was to be allocated their balance shares of the land.

3.10 The Plaintiff is entitled for 72 acres of the land after allocating 28 acres for amenities and he was so far allocated only two lots 24 and 33 acres and the balance to be allocated is 15 acres.

The above facts were agreed between the parties and there is no necessity to consider the evidence led on the above facts and the Plaintiff had agreed he is entitled for 15 acres and his claim for 16 acres cannot be maintained in terms of the agreed facts.

[4] The Defendant in its Statement of Defence stated that it is willing to transfer the 15 acres of the land, if the Plaintiff accepts the decision of the majority of the members of the Defendant and take the area allocated to him. So there is no issue that the Plaintiff is entitled for 15 acres and the Defendant is willing to transfer the 15 acres. The only question is whether the Plaintiff has the discretion to decide on the location?.

[5] In reply to the above statement by the Defendant, the Plaintiff stated in the paragraph 8 of the Reply to the Statement of Defence:

"8. THAT as to paragraph 10, 11, 12 and 13 of the Statement of Defence, the Plaintiff states that till today he has not been given or allocated 15-16 acres of land which he is lawfully entitled to and further the Plaintiff wish to state that the Defendants have leased, transferred or sold this 15-16 acres of land to somebody else. The Plaintiff on several occasions have requested the Defendants to execute the transfer documents of the 15-16 acres of land which he is rightfully entitled to, pursuant to the agreement to referred herein above and the Plaintiff will only be satisfied if the same portion of land which constitutes remaining 15-16 acres of land is transferred to him".

[6] The Plaintiff alleges that the Defendant had transferred to another party 15-16 acres of land which was entitled by him. In the circumstances, the issues to be decided by this court are:

(a) as to whether the Defendant transferred 15 acres of land to Biman Prasad in breach of a promise made to the Plaintiff by the Defendant?;

(b) if the above issue is answered in affirmative, as to whether the Plaintiff is entitled for damages?

(c) if the above two issues are answered in favour of the Defendant, as to whether the Defendant is obliged to allocate 15 acres from any other area of the land in terms of the agreement dated 27 January 1968?

[7] It is vital to analyze the documents tendered in evidence to arrive at conclusions on the above issues.

7.1 P1 is the agreement entered between Vijay Raghubar Singh and the Purchasers on 27 January 1968. It was also provided in the agreement in addition to the purchasers who signed the agreement any other occupiers of the land at that stage too could join for the purchase. The Purchasers were referred to as the Committee of Management.

7.2 Committee of Management was authorized to decide on the rights and obligation of the Purchasers (Clause 18).

7.3 The Plaintiff's father has not signed the agreement P1 and had joined the purchase by the request dated 27 February 1968 (P2A) made to the Vendor Vijay R Singh where the solicitor confirmed the persons, named in the request to be included in the original agreement dated 27 January 1968 and the request endorsed by the solicitor was signed by the Plaintiff's father Sukhraj along with some other purchasers. It is important to note the Land Committee had approved the purchase and it specifically states:

"we further state that we have obtained the approval of the land purchase committee to purchase to share in Malawi, and the areas purchased by us are lands which are not hither to been occupied".

7.4 It is evident that although the Plaintiff in his evidence stated the land which he cultivated was given to one Biman Prasad there was no identified location promised by the Defendant to the Plaintiff's father, but it was stated £100 was deposited by the Plaintiff's father for the purchase to meet the total consideration of the agreement.

[8] The Evidence

8.1 The Plaintiff claims that he is entitled land purchased by his father which is undisputed, however, all obligations and rights are subject to the terms in the agreement P1 and letter of request dated 27 February 1968 (P1A).

8.2 The Plaintiff admitted in his evidence that in terms of Clause 18(a) the Committee is empowered to work out the area to be allocated. I conclude the Plaintiff was not given a right to demand the location of the land to be allocated.

8.3 During the cross-examination the Plaintiff stated that the two titles owned by him, one contains 24 acres and one contains 33 acres. The Plaintiff stated he was cultivating 16 acres adjacent to his land and on further questioning he stated that 16 acres is within 33 acres which he cultivates not within the land allocated to Biman Prasad. I note that in evidence in chief, the Plaintiff has 16 and 24 acres. I conclude this contradicts his own evidence with attempted to establish that the land cultivated adjacent to his house now given to Biman Prasad, and I deny to accept this part of the evidence and further conclude the Plaintiff failed in his attempt. There is no evidence before me to prove that 16 acres allocated to Biman Prasad was inside his land and that the Plaintiff is entitled to be allocated the said land purchased by Biman Prasad..

[9] There is also no evidence before me that there is an obligation on the part of the Defendant to allocate the land what the Plaintiff requests. Its scheme and the allocation are done on a basis decided by the Defendant. There is no right as to the Plaintiff to demand the location because the evidence established that every person was allocated salty land which is not good for cultivation. Even the witness who was called on behalf of the Defendant gave evidence stated that each member got cultivatable land and the salty land too. That was the basis. I accept his evidence there was no evidence in contrary to prove that anyone got only cultivatable good land who were parties to the documents marked P1 & P1A.

[10] I also have taken into consideration the Exhibit D1 tendered in the evidence of the Defendant's witness. This is the consent of the members of the Defendant to transfer the land to Biman Prasad which is now claimed by the Plaintiff:

"D1 states 04.02.2011. We the undersigned members of the Nairirileka Land Purchase Cooperative hereby give consent to the committee to transfer the balance of Narawasa land to Dr Biman Prasad".

(signed by the members)

The Plaintiff is also a signatory to this document. There is no evidence before me that another land was given to Biman Prasad. D1 was not challenged, or denied by the Plaintiff. Further the Plaintiff admitted on the sale of the land he as a member received $700.00 as his share. If he is contesting the sale why he consented/received money and no action was taken on the transaction? This action was filed in 2013 and he received the monies in 2011 and why had he not taken any action to safeguard his interest? All the Plaintiff's allegations with regard to sale of the land are without a basis and frivolous.

[11] The Defendant's evidence was that all the lands allocated to the members of the Defendant are with fair mix. It was revealed even the Management Committee members received cultivatable land, land close to their residence and salty land. The Plaintiff's witness Lalu Prasad too agreed all the members got lands in different areas. The Plaintiff could not prove that any member got land only around his residence. He was unaware of the exact land location of the other members. I conclude when the allocation made to the Purchasers in different areas to maintain the equality of the allocation and there was no promise made in the agreement with regard to exact location of the land allocated as such the Plaintiff's claim fails.

[12] I conclude that there is no fraud proven against the Defendant and I conclude the committee of the Defendant acted in a fair manner when they allocated the land. Considering all the evidence led before me and the documents marked as Exhibits P1 to P3, P1A and D1, I determine the Plaintiff failed to prove his claim on the balance of probabilities.

[13] Accordingly, I answer the issues in the paragraph 6 of this Judgment as follows:

(a) The Transfer of 15 acres by the Defendant to Bimal Prasad was not breach of a promise made to the Plaintiff by the Defendant. The Plaintiff did not establish that there is any entitlement to him on the land transferred to Biman Prasad.

(b) Having answered the issue in the paragraph (a) in favour of the Defendant, the Plaintiff is not entitle to any damages.

(c) The Defendant is obliged to allocate 15 acres from any other location of the land and the committee of management has the right to decide the location of the land to be allocated to the Plaintiff.

Orders of the court:

(i) the Plaintiff's claim dismissed;

(ii) the Plaintiff is ordered to pay $1,500 costs to the Defendant summarily assessed.

Delivered at Suva this 10th Day of June 2015

...............................
C. KOTIGALAGE
JUDGE