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Kumari v Singh [2015] FJHC 942; HBC211.2007 (25 November 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA FIJI

CIVIL CASE NO.:HBC211 OF 2007

BETWEEN:

KUSUM KUMARI father's name Daya Prasad of Sigatoka, Domestic Duties as Administratrix of the Estate of MadhuLalit Kumar Singh father's name Madho Singh late of Kavanagasau, Sigatoka.
PLAINTIFF

AND:

VIJENDRA SINGH father's name Raj Bahadur Singh of Kavanagaau,
Sigatoka, Farmer.
DEFENDANT

Appearances:

Ms. Q. Vokanavanua for the Plaintiff
Mr D. Naidu for the Defendant

JUDGMENT

1.0 Introduction

1.1 According to the Statement of Claim, the Plaintiff claims inter alia the following reliefs from

the Defendant:

(i) Declaration Order that the Sale and Purchase Agreement dated 30th October 2002 has been rescinded and all monies paid as deposit pursuant to Clause (2) and (3) of the Agreement in the sum of $20,000.00 has been forfeited to the Plaintiff.

(ii) That there be Judgment against the Defendant in the sum of $48,346.49 for unjust enrichment by the Defendant.

(iii) General damages and compensation against the Defendant for breach of Agreement.

(iv) Order that the Defendant immediately vacate and deliver up vacant possession of the said land presently occupied by him.

(v) Order that the Defendant do pay mesne profit for use and occupation of the subject land from 22/11/2006 to date of vacation at the rate of $500.00 per month.

(vi) Interest on any award at the rate of 10% per annum from 22/11/2006.

(vii) Cost of the action on indemnity basis.

2.0 The Statement of Claim

2.1 The Plaintiff states in the Statement of Claim that she is the last registered proprietor of all the land comprised in Crown Lease No. 6134 being Lot 9 on Plan N 1990 and Lot 7 on Plan N1997 and Lot 19 on Plan No. N 1999, part of Kavanagasau, formerly CT 2242, Farm 5712, containing an area of 21 acres 2 roods 00 perches situated in the Tikina of Baravi and in the Province of Nadroga/Navosa, LD4/11/1356 being Agricultural Land (hereinafter called the land). Shealso states that 6 bedroom house existed on the land hereinafter called improvements.

2.2 The Plaintiff states further in her Statement of Claim that;

• (a) The Plaintiff used to cultivate the said land as a cane farm under cane Contract No. 05712.
  
• (b) The Defendant is a farmer and resides at Kavanagasau, Sigatoka.
  

(c) The Plaintiff and Defendant entered into a written contract on 30/10/2002 whereby the Plaintiff was to sell the land and improvements in the sum of $50,000.00. Sale and Purchase Agreement was prepared by Messrs Patel and Sharma which Solicitors were acting as common Solicitors for the Plaintiff and the Defendant.

(d) Pursuant to Clause 2 of the Agreement the Defendant paid the Plaintiff the sum of $10,000.00 as deposit and part payment.

(e) Pursuant to Clause 3 of the Agreement the Defendant was to pay the balance sum as follows;

• (i) $5,000.00 to be paid on or before 31/12/2003.
• (ii) $5,000.00 to be paid on or before 31/12/2004.
• (iii) Balance of $30,000.00 shall be paid on settlement date.
  

(f) Pursuant to Clause 4 of the Agreement the date of Settlement was stated "shall be on the 30th of June 2005" and subject to the consent from Crown Lands Department.

(g) The Settlement did not take place on 30/06/2005 and neither did the Defendant make any attempts to settle. That as at 22/11/2006, the Defendant failed to settle and therefore, he was in breach of the contract and Plaintiff rescinded the contract by invoking Clause 15(b) of the Agreement. The Defendant was served with the rescission notice on 29/11/2006 by the Common Solicitors.

(h) At the time of the said rescission notice the Defendant had paid to the Plaintiff the sum of $20,000.00 and which sum was forfeited. The rescission notice also required the Defendant to quit and deliver vacant possession of the said land but the Defendant failed to do so and continues to use and cultivate the land.

(i) In the month of January 2007, the Plaintiff was called into office of Messrs Patel and Sharma of Sigatoka and was made to sign some documents under duress, compulsion and coercion. Due to the said reason and of the fact, that the Defendant had breached the contract, the Plaintiff obtained separate legal advice from Messrs Suresh Maharaj and Associates.

(j) After obtaining the separate legal advice the contract was rescinded for the 2nd time by service of Notice on 7/10/2002 as a result of the Defendants' breach in not attending to settle on 30/06/2005.

(k) Particulars of Breach of Contract

• (i) Failing to complete the settlement on 30/06/2005 as per the Sale and Purchase Agreement dated 30th October 2002.
  
• (ii) Failing to complete settlement even after 30/6/2005 or by 22/11/2006 or 30/03/2007 when the Sale and Purchase Agreement of the property was rescinded in terms of Clause 15(b) of the contract by the Plaintiff.
  

(l) Pursuant to Clause 7 of the Agreement, the Defendant had taken possession of the cane farm and was cultivating the same by planting sugar cane and other cash crops and vegetables.

(m) Since taking possession of the said land in 2002, the Defendant has received cane proceeds in the sum of $18,346.49 and benefitted by selling cash crops and vegetables amounting to around $30,000.00 and the Defendant has unjustly enriched himself in the sum of around $48,346.49 but defaulted in settlement.

(n) As a result of the breaches and unjust enrichment by the Defendant the Plaintiff has suffered loss and damages and continues to suffer the same.

3.0 Statement of Defence and Counter-Claim

3.1 In his Statement of Defence Defendant states inter alia the following fact:

• (i) No settlement was envisaged as the Plaintiff failed in her duty to consult with Common Solicitors in respect of the consent from the Directors of Lands.
  
• (ii) Settlement could not be effected due to the Plaintiffs Common Solicitors negligence to obtain consent from the Director of Lands.
  
• (iii) The Defendant admits that in so far as the sum of $20,000.00 was paid to the Plaintiff.
  
• (iv) The Defendant denies breaching the Contract and there was no consent by the Director of Lands being obtained by the Plaintiff. The Defendant denies the particulars of breach contained in paragraph 15 of the Statement of Claim.
  
• (v) The Defendant admits that he took possession of the land and received cane proceeds but denies the rest of the content of paragraph 17 of the Statement of Claim and also denies the allegation of unjust enrichment against him as pleaded in paragraphs 18 and 19of the Statement of Claim.
  
• (vi) The Defendant states he is lawfully on the land as per Agreement.
  
• (vii) The Defendant's Counter Claim be treated as his claim in Civil Action 160 of 2007.
  

4.0 Counter-Claim (Claim in Civil Action 160 of 2007)

4.1 The Plaintiff in Civil Action 160 of 2007 (Defendant in the present Action) alleges that due to the Defendants' breach (Plaintiff in the present Action) he has suffered loss and damages.

Particulars of Loss

(i) Deposit paid to the Defendant $20,000.00.
(ii) Solicitors costs; Messrs Patel and Sharma $ 165.00.
(iii) Paid ground rent to the Lands Department $638.00.

4.2 Wherefore the Plaintiff has claimed (the Defendant in the present Action) the following relief from the Defendant (Plaintiff in the present action).

(i) Specific performance of the Agreement.
(ii) In the alternative Judgment in the sum of $20,803.00.
(iii) General Damages.
(iv) Interest, Law Reform (Miscellaneous Provisions) (Death and Interest) Act.
(v) Costs.

5.0 Reply to Statement of Defence and Defence to Counter-Claim

5.1 The Plaintiff states that there was no consent of the Director of Lands before the Defendant went into occupation and the same was to be obtained by the Defendant and or his Solicitors which they failed to obtain and therefore the whole dealing was unlawfuland illegal and void abinitio.

5.2 Defence to Counter-Claim-

The Plaintiff denies the counter-claim and adopts and repeats the Statement of Claim filed in the Action No. 160 of 2007. The Plaintiff will further rely on her Counter-Claim filed in the Action No. 160 of 2007 in defence of the Counter-Claim herein which lacks particulars of Claim and is in breach of the High Court Rules and the same ought to be summarily struck out with indemnity costs.

6.0 The Trial

6.1 At the Trial the Plaintiff called 2 witnesses. They were:

PW1 Paramod Kumar – Guardian Ad Litem of the Plaintiff

PW2 JayotishiRaveena Singh

6.2 The Defendant called 2 Witnesses.

DW1 The Defendant himself.

DW2 Mr Robinson Prasad – Solicitor

6.3 The Defendants Counsel closed their case without concluding the evidence in chief of Mr

Robinson Prasad. Therefore I will disregard his evidence in making my Judgment as he was not subject to cross-examination by the Plaintiff's Counsel.

7.0 Evidence of the Plaintiff's Witnesses

• 7.1 PW1 said that the Plaintiff is her sister and when her husband died she became the Administrator of his estate which consisted of a 11 acre farm land and a partly completed house. He said further that the Plaintiff found a buyer for the farm land for a sum of $50,000.00. He confirmed that Document No. 4 of the Plaintiff's Bundle of Documents (Exhibit P3) as the Sale and Purchase Agreement executed for the said purpose. He said that the Plaintiff received $20,000.00 from the Defendant, the Defendant failed to pay the balance sum of $30,000.00 as agreed and he advised the Plaintiff to seek legal advice over this issue.
  
• 7.2 The Witness said that a letter drafted by Solicitors Patel and Sharma on the instructions of the Plaintiff was sent to the Defendant. He said the Defendant did not vacate the farm land not the house after receiving the said letter dated 22nd November, 2006.
  
• 7.3 It was revealed in evidence of Paramod Kumar that the Plaintiff has later met Mr Suresh Maharaj and given instructions to inform the Land Department not to transfer the land to the Defendant. He said further that the Plaintiff was earning $25,00.00 to $30,000.00 for a year from the land by the Sale of Sugar Cane.
  
• 7.4 In cross-examination he said he was not aware whether the consent of Director of Lands was obtained by the Plaintiff before 30th June, 2005. Later he admitted that the consent was granted on25th January, 2007 and no consent was given before the settlement date 30th June, 2005.
  
• 7.5 When he was asked whether the Defendant paid the balance of $30,000.00 within the 14 days given to rectify the breach he said it was paid to the Solicitors and to the Plaintiff and it was paid after the Sale and Purchase Agreement expired.
  
• 7.6 When it was put to him that there was nobody to manage the farm after the death of the Plaintiff's husband he said his younger brother was there for 3 to 3 ½ years and used to get about 375 tons of cane crop. He admitted that his sister the Plaintiff wanted to sell the farm ass he was sick and there was nobody to manage the farm.
  
• 7.7 The next witness called by the Plaintiff was Joytishna Raveena Singh; the youngest daughter of the Plaintiff.
  
• 7.8 When she was asked roughly how much her mother earned from the cane farm she said if there is no flood or cyclone $25,000.00 minimum and during good years $30,000.00 to $35,000.00.
  
• 7.9 When she was asked how did she know, she said her mum received cheques from Fiji Sugar Corporation which she deposits in Bank and after 7 days they get the money which they all share.
  
• 7.10 She revealed in evidence that her mother decided to sell the farm when she was sick and when they were all educated.
  
• 7.11 She said further that her mother entered into an agreement with the Defendant to sell the farm to him and the Defendant moved in to the farm and later failed to give the balance money to due to her mother. She said the Defendant planted cash crops and vegetables but did not give any Sale proceeds to her mother.
  
• 7.12 When the witness was asked in cross-examination whether she has records to prove that they earned $30,000 to $35,000.00 from the farm she said they have to hand over records to Fiji Sugar Corporation and records are at FSC. When she was shown Tab 3 of the Plaintiff's Bundle of Documents FSC Productions details for year 2002 for "Farm 5712" she admitted that 65.6 tons are shown in it.
  
• 7.13 She also admitted that the Sale and Purchase Agreement was subject to the consent of the Director of Lands and the consent was not obtained on 30/6/2005. She admitted that it was the Lands Department which took two years to give the consent. She admitted that the settlement could not take place without the consent of the Director of Lands.
  
• 7.14 When it was put to the Witness that until settlement her mother the Plaintiff allowed the Defendant to farm under the Power of Attorney and the Plaintiff received money she said "yes".
  

8.0 Evidence of the Defendant

• 8.1 The Defendant revealed in evidence that he paid a sum of $20,000.00 to the Plaintiff on the Sale and Purchase Agreement and paid the balance of $30,000.00 to Solicitors Patel and Sharma within 14 days time period given to rectify the breach. He said further even after the said payment settlement did not take place as the Plaintiff failed to get the consent from the Lands Department.
  
• 8.2 The Defendant said the consent was granted by the letter dated 25th January, 2007. D2 and he was ready to settle now. He admitted that the Plaintiff's Solicitors have written letterdated 22nd February, 2007 (D10) to the Divisional Surveyor Western requesting them to cancel the consent of the Plaintiff for the transfer and to stop the Sale.
  
• 8.3 The Defendant revealed in evidence that when he came on the land cane harvest was only 60 to 65 tons and Statement for 2002 show 65-6 tons. He said further that he used to get about $800 to $1,000 from the Sale of vegetables cultivated on the land and that the Plaintiff gave sugarcane money only in 2003 and 2004 but after that she never gave money to him.
  
• 8.4 In cross-examination the Defendant said that he asked the Plaintiff to obtain the consent from the Lands Department. He said the Plaintiff told him that 2005 cane money will be deducted from the payment of $30,000.00 and as she agreed to sell the land to him he was cultivating it.
  

9.0 Analysis and Determination

9.1 This matter is based on the Sale and Purchase Agreement executed on 30th October, 2002 by which the Plaintiff has agreed to sell the land to the Defendant for the consideration sum of $50,000.00. It is admitted by the parties that the settlement date of the Agreement was 30th June, 2005 as per Clause 4 and the settlement is subject to the consent from Crown Lands Department. The Plaintiffs witness Paramod Kumar admitted in evidence that no consent was given before the settlement date and the consent was only granted on 25thJanuary, 2007.

9.2 PW2 Jayotishna Raveena Singh also confirmed that consent of the Director of Lands was not obtained on the settlement date and the Lands Department took two years to give the consent. She admitted that the settlement could not take place without the consent of the Director of Lands.

9.3 The Defendant in his evidence stated that the consent was granted by letter dated 25th January,

2007 and he was ready to settle now.

9.4 It is proved on balance of probabilities that the Defendant has paid the balance amount of $30,000.00 to the Common Solicitors, account within the period given for him to rectify the breach after the settlement date.

9.5 When analysing the evidence as above I find that the Defendant was prevented from paying the balance amount of $30,000.00 not due to his fault but due to the consent of the Lands Department being not obtained prior to the settlement date.

9.6 At this point I draw my attention to the Plaintiff's Reply to Defence in which the Plaintiff takes up a preliminary issue in regard to the legality of the Sale and Purchase Agreement. The Plaintiff states in Reply to Defence as the Defendant or his Solicitors have failed to obtain the consent of the Director of Lands before the Defendant went into occupation of the land the whole dealing was unlawful and illegal and void ab initio.

9.7 Section 13(1) of the Crown Lands Act states that it shall not be lawful for the Lessee to alienate or deal with the land comprised in a protected lease without the written consent of the Director of Land first had and obtained.

Section 13(1) of the Crown Lands Act reads as follows;

"13(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained..................."

9.8 In Reddy v Kumar (2012) FJCA 38 ABU011.11 8 June (2012) Fiji Court of Appeal held that any dealing in respect of a Government Land effected without the consent of the Director of Lands shall be considered ab-initio void and has no effect or force in the eyes of the law.

9.9 At paragraph 9 and 10 of the said Judgment Chitrasiri J stated as follows:

"9. The above section of the Crown Lands Act, clearly stipulates that it is unlawful toalienate or deal with a land comprising a lease unless the written consent of the Director of Lands first had and obtained. It is further stated that any sale or transfer or other alienation or any dealing effected in respect of such land without the consent of the Director of Lands shall be null and void. Accordingly, a Statutory bar is being imposed for the transactions or dealing affecting Government land or part thereof which is subjected to a protected lease unless and until the consent for such a transaction is obtained from the Director of Lands beforehand. Therefore, if any dealing in respect of a Government land is effected without the consent referred to above, such a transaction shall be considered ab-initio void and has no effect or force in the eyes of the law."

"10. When looking at the said Section 13, it seems that the consent of the Director referred to therein should be given by him only upon considering the totality of the provisions contained in the Crown Lands Act. That power of the Director cannot be exercised bya person functioning in another capacity than of the Director of Lands. [Section13(4)of the Act] However, it must be noted that it does not mean that the right to review decisions of the Director or the Minister, if there had been an appeal under Section13(3) to the Minister, is taken away from the jurisdiction of Courts but of course subject to the provisions of the law prevailing in Fiji. Hence, the requirement to have the consent of the Director under the Crown Lands Act stands as a mandatory requirement before any transaction or similar dealing is effected in respect of a leasehold Government land." [emphasis added]

9.10 The Plaintiff's lease marked asP2 is a Protected lease under the provisions of the Crown Lands Act. In analysing the evidence before me and in considering the statutory provisions and the principles laid down in the authorities as discussed above I am of the view that the Sale and Purchase Agreement P3, executed without the consent of the Director of Lands is a dealing which is void ab initio. As such I hold that the Agreement marked Plaintiffs Exhibit P3 has no effect or force in the eyes of the Law and the Defendant is not entitled to seek from Court a Judgment for Specific Performance of the same as it is a ab-initiovoid.

9.11 The Plaintiff alleges in her Reply to Defence that the Defendant or his Solicitors failed to get the consent of the Director of Land prior to executing the Sale and Purchase Agreement. This allegation in my view is baseless as the evidence reveal the Solicitor who witnessed the Agreement acted as the Common Solicitor at the time of executing it. It is not relevant to find out who was responsible for getting the required consent prior to executing the Agreement. If the consent has not being obtained both parties are equally at fault or pari delicto at the time of executing the Agreement. As such I hold that the Plaintiff is not entitled to claim general damages or compensation from the Defendant for breach of the Agreement.

9.12 Next issue to be decided herein is whether the Plaintiff can claim from the Defendant a sum of $48,346.49 for unjust enrichment by the Defendant and claim mesne profit for use and occupation of the subject land from 22nd November, 2006 to date of vacation at the rate of $500.00 per month.

9.13 According to Clause 7 of the Sale and Purchase Agreement (P3) the Purchaser is to take possession of farm land upon execution of the Agreement. The evidence adduced at the Trial confirms that the Defendant moved onto the farm land after the execution of the Sale and Purchase Agreement on 30th October, 2002. The parties have executed the said Agreement without the consent of the Director of Lands and also acted and performed on it by handing over possession to the Defendant. As such I find that the Plaintiffs claim for unjust enrichment and mesne profits stems from the Agreement which I held herein before to be ab-initio void. Due to the said reason I hold that the Plaintiff is not entitled to maintain a claim for unjust enrichment ormesne profits from the Defendant.

9.14 I will now consider whether the Plaintiff is entitled to get immediate vacant possession of the land occupied by the Defendant and whether the Defendant is entitled to get a Judgment in the sum of $20,803.00 as prayed for in his Counter-Claim (Claim in Civil Action 160 of 2007).

9.15 It was held in Singh v Singh and Another FJSC 9; [1980] 26 FLR 77 (31 July 1980) when both parties are in pari delicto neither party has any right of action therefrom.

In the said Judgment Madhoji J at p84 said:

"....The rule is that the Plaintiff's entering into possession and the subsequent agreement to subject were unlawful dealing in land comprised in a protected Crown Lease and null and void. The rule is that "ex turpicausa non oritur action". The claim of the Plaintiff and the Defence and Counter Claim are based on and arise from an unlawful transaction and agreement and both Plaintiff and Defendants are in this case in pari delicto. It follows that neither party has any right of action therefrom. The Plaintiff however is in unlawful possession of the land and he cannot justify remaining in possession.

In the Privy Council case of Mistry Amar Singh v Kulubya 1963 3 AII ER page 499it was held that a registered owner of land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested on his registered ownership and as the person in possession could not rely on the agreement because of their illegality he could not justify his remaining in possession."

9.16 In this matter I have held that the Sale and Purchase Agreement (P3) is void ab-initio and it has no effect or force in the eyes of the Law. As such the Defendant has no right to remain on the land on the strength of an agreement which is void. Relying on the principle laid down in Singh vSingh I hold that the Plaintiff is entitled to recover possession as her right to possession rested on her registered ownership and not on the illegal Agreement. Therefore I hold that the Defendant should immediately vacate and deliver up vacant possession of the

farm land to the Plaintiff.

9.17 The next issue to be determined in this matter is whether the Defendant is entitled to claim from the Plaintiff the deposit of $20,000.00, costs paid to the Solicitors and Ground Rent paid to the Lands Department, a total of $20,803.00.

9.18 In Damodar and Rantanji Ltd Redwood Investment Ltd and Others 1988 FJCA 5; [1988] 34FLR 30 (1st July 1988) it was held that it is trite law that equity will not aid a party to an illegality.

9.19 This principle was followed in the case of NLTB v Subramani [2010] FJCA 9; ABU0076 - 2005 (25th February 2010) where the Court held when the consent has not been obtained by the Defendant from the iTLTB for the Sale and Purchase Agreement the transaction between parties is illegal and the Court should not assist the Plaintiff.

9.20 In the light of the principles laid down in the aforementioned authorities I am in doubt as to

whether the Defendant could seek from this Court an Order for the Plaintiff to refund of the deposit of $20,000.00.

9.21 However, a different view was expressed by Justice Fatiaki in the case of Kikuo Sukashita v Concave Investment Limited [1999] FJHC 3; HBC 0121j.1988S (5th February, 1999) where his Lordship held that a Purchaser has a right to recoup the deposit paid on an Agreement held to be ab-initio null and void. In the said Judgment Justice Fatiaki has categorised the aspect of the Plaintiffs Originating Summons as being a claim for "Money had and received" or for restitution according to the principles laid down in the Judgment of the House of Lords in the case of Fibrosa Spolka Akeyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; (1943) AC 32.

9.22 Justice Fatiaki has quoted the words of Lord Roche in the Fibrosa case (ibid) in his judgment which was directly applicable to the Plaintiff's claim. I will reproduce the said paragraph which I find applicable to the Defendant's claim in this matter too:

"It is, I think, a well settled rule of English law that, subject always to special provisions in a Contract, payments on account of a purchase price are recoverable if the consideration for which that price is being paid wholly fails see: Ockenden v Henley EB &E 485, 492.Looking at the terms of the contract in the case now under consideration, I cannot doubt that the sum sued for was of this provisional nature. It was part of a lump sum price, and when it was paid it was no more than payment on account of the price. Its payment had advantages for the (Defendant company) in affording some security that the (Plaintiff)would implement their contract and take up (the transfer) and pay the balance of the price, and it may be that it had other advantages........but if no............document of title were delivered to (the Plaintiff)........(or, as in this case, the contract is declared illegal ab-initio) then, in my opinion, the consideration for the price including the payment on account, wholly failed and the payments so made is recoverable. It was contended that unless there is found some default on the part of the recipient of such payment.....the consideration cannot be said to have wholly failed merely because the frustration of the contract produced a result which, had it been due to some default, would have amounted to a failure of consideration. I find no authority to support this contention, which seems appropriate to an action for damages but foreign to the action for money had and received."

9.23 In the present matter the Plaintiff admits receiving $20,000.00 from the Defendant on the Sale and Purchase Agreement which I have held to be void ab-initio. The dealing between the Plaintiff and the Defendant in the matter is similar to the dealing in Fibrosas case. As such applying the principles laid down in the said case I am content to categorise the claim of the Defendant for the deposit paid as a claim for "money had and received". In the light of the foregoing I hold that the Defendant is entitled to recover a sum of $20,000.00 from the Plaintiff with interest.

9.24 The Learned Counsel for the Defendant states in the written submission filed that the Defendant seeks refund of $20,000.00 deposit and interest which was paid into this Court pursuant to an Order dated the 25th February, 2008 (Copy of the Order attached to the written submissions). When perusing the case record I find that the said Order for the Plaintiff to deposit $20,000.00 was formerly dissolved by a subsequent Order dated 4th July, 2008. Therefore I will not make an order to refund a sum of $20,000.00 deposited in Court but make an Order for the Plaintiff to pay the Defendant a sum of $20,000.00 with interest.

9.25 In the exercise of my discretions under Law Reforms (Miscellaneous Provisions) (Death and Interest) Act Cap 27 I award interest at the rate of 3% per annum on the sum of $20,000.00 from the date 29th November, 2006 the date on which the Defendant was served with the rescission notice by the Plaintiffs Solicitors.

9.26 Though the Defendant in his Counter-Claim is seeking Solicitors costs, Ground Rent paid to the Lands Department and General Damages from the Plaintiff I decline to grant the said reliefs as I have held that the Sale and Purchase Agreement is void ab-initio.

10.0 Conclusion

10.01 Final Orders

In the outcome of the foregoing reasons I make the following Orders:

(i) I decline to grant the following reliefs claimed by the Plaintiff in her Statement of Claim.

• (a) Declaration Order that the Sale and Purchase Agreement dated 30/10/2002 has been rescinded and all monies paid on deposit pursuant to Clause (2) and (3) of the Agreement in the sum of $20,000.00 has been forfeited to the Plaintiff.
  
• (b) Judgment against the Defendant in the sum of $48,346.49 forunjust enrichment by the Defendant.
  
• (c) General damages and compensation against the Defendant for breach of Agreement.
  
• (d) Order for the Defendant to pay mesne profit for use and occupation of the subject land from 22/11/2006 to date of vacation at the rate of $500.00 per month.
  

(ii) I order the Defendant to vacate and deliver up vacant possession of the land presently occupied by him to the Plaintiff immediately.

Counter-Claim

(iii) I decline to grant the following reliefs claimed by the Defendant in his Counter Claim. (Claim in Action No. 160 of 2007).

• (a) Order for Specific Performance of the Agreement.
  
• (b) General Damages against the Plaintiff for breach of Agreement.
  
• (c) Counter Claim of $803.00; Solicitors Costs and Ground Rent paid to the Lands Department.
  

(iv) I order the Plaintiff to pay the Defendant a sum of $20,000.00 within 30 days together with interest atthe rate of 3% per annum on the said sum from 29th November, 2006 till date of thisJudgment.

(v) Each party shall bear their own costs.

Lal S. Abeygunaratne
Judge

At Lautoka
25th November, 2015