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Kumari v Prasad [2017] FJHC 692; HBC14.2005 (22 September 2017)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 14 OF 2005

BETWEEN: RAM KUMARI

First Plaintiff

AND: YOGESH PRASAD

Second Plaintiff

AND: VIMAL PRASAD

First Defendant

AND: HERMANT KUMAR

Second Defendant

AND: THE REGISTRAR OF TITLES

Third Defendant

AND: ATTORNEY-GENERAL OF FIJI

Fourth Defendant

CORAM: The Hon. Mr. Justice David Alfred

COUNSEL: Mr. A. Ram, Mr. A. Kumar with him for the First and Second Plaintiffs

Mr. A. Kohli for the First and Second Defendants

Mr. J. Pickering, Mr. J. Mainavolau for the Third and Fourth Defendants

Dates of Hearing: 18, 19 and 20 September, 2017

Date of Judgment: 22 September, 2017

JUDGMENT

1. The record of these proceedings make for edifying reading. Pleadings that started with a Statement of Claim dated 28 April 2005 closed with the Second Amended Statement of Claim filed on 8 March 2017. The protracted proceedings were only brought to a final end after 12 years by a hearing over 2½ days in the 3^rd week of September 2017.

2. The 3^rd version of the Statement of Claim states in a nutshell the following:

(1) The First Defendant (owner) was the proprietor of the land in question with a dwelling house thereon (the land), which was mortgaged to the Fiji Development Bank (FDB).

(2) The owner entered into an agreement with one, Rajendra Prasad, since deceased (the deceased) of whose estate the First Plaintiff is the administratrix and of whom the Second Plaintiff is a son.

(3) The agreement provided that the deceased would pay a monthly instalment of $330 (sic) to the FDB. (The agreement states $320).

(4) Pursuant to the agreement the deceased began to pay the instalments.

(5) By a memorandum in writing, on 24 November 1997, the owner gave to the deceased.

(a) full control of the land.

(b) authority to determine who occupies the land.

(c) confirmation that the land would not be sold to anyone other than the deceased.

(6) The owner on 6 April 1998 executed a power of attorney in favour of the deceased.

(7) The deceased and the Second Plaintiff agreed and undertook to pay the arrears owing by the owner to the Savusavu Town Council relating to the land.

(8) On 5 May 2000 the owner offered in writing to sell to the deceased and the Second Plaintiff the land for $30,0000, which they accepted and continued to pay instalments to the FDB on account of the owner. These were accepted by the owner as payments to account of the purchase price of $30,000.

(9) The deceased died on 11 December 2002.

(10) The First Defendant did not terminate the Sale and Purchase Agreement (SPA) at any time between 5 May 2000 and 1 December 2004 or at all. On that date the First Defendant entered into a sale and purchase agreement with the Second Defendant.

(11) The owner applied for the removal of the caveat on 11 March 2005, which caveat had been lodged by the Administratrix through her solicitors, Maqbool & Company. Notice of the Application for Removal (dated 17 March 2005) was sent by registered post to her and the notice uplifted by her solicitors on 30 March 2005.

(12) On 12 April 2005 the Registrar:

(a) removed the caveat and accepted for registration;
(b) discharge of the mortgage to FDB;
(c) transfer from the owner to the Second Defendant (buyer);
(d) Mortgage from the buyer to the Colonial National Bank.

(13) A search revealed the caveat had been wrongly removed on 12 April 2005. The Second Plaintiff’s solicitors presented a new caveat for registration but the Registrar refused to register it.

(14) The buyer had personal knowledge of the Plaintiffs’ rights in the land and the owner and buyer entered into a fraudulent transfer with the intention of depriving the Plaintiffs’ of their proprietary interests in the land.

(15) The Plaintiffs believe the value of the land is no less than $130,000.

(16) In breach of the agreement of 31 July 1997 and the offer dated 5 May 2000 the Plaintiffs lost the land which the owner sold for the price of $54,000.

(17) The Plaintiffs however paid a total of $31,850 to FDB and are willing to perform the agreement and the offer. They have also carried out repairs etc at $2,000 and reclamation of land in 2001 at $4,500.

(18) The Plaintiffs claim:

(a) A declaration that the caveat was wrongly removed.

(b) That the caveat be registered.

(c) A declaration that the transfer of land registered on 12 April 2005 be set aside.

(d) That the Registrar register the caveat from the Second Plaintiff.

(e) An order for specific performance of the sale and purchase arrangements of 31 July 1997 or the offer of 5 May 2000.

(f) An injunction restraining the owner and buyer from interfering with the Plaintiffs as beneficial owners of the land.

3. The Amended Statement of Defence (defence) of the First Defendant contends:

(i) It was an express condition between the deceased and the First Defendant that the latter would sell the land to the former if the deceased continued to pay the FDB without fail which the deceased and/or the Plaintiffs failed to do.
(ii) The said Power of Attorney was granted to permit the deceased to attend to the transfer of the land to the deceased upon payment of the loan at FDB and other rates.
(iii) The First Defendant advised the Plaintiffs verbally that he did not wish to continue with the sale as the Plaintiffs had defaulted in the repayment to the FDB.
(iv) The First Defendant sold the land to save his own interest and because the Plaintiffs had breached the condition of sale they had no equity in the land.
(v) The FDB issued a demand notice in October 2004 for $33,825.73 or else the land would be advertised for mortgage sale. The First Defendant handed the notice to the Plaintiffs who refused to accept it and arrange for payments to the FDB. The Plaintiffs advised they were unable to meet the same. The Plaintiffs had failed to pay the town rates.
(vi) The land was put on tender by the FDB after the Plaintiffs failed to pay the repayment on time.
(vii) The Plaintiffs however breached the conditions of the agreement with the First Defendant and have no right over the land.

4. The Amended Statement of Defence of the Second Defendant (defence) contends that he is the bonafide purchaser for value, the Registrar had rightly removed the caveat, discharged the FDB mortgage, transferred the land to him and registered the mortgage to Colonial National Bank. Thus the Plaintiffs have no claim against him, no right to remain on the land and vacant possession be given to him. Accordingly the Second Defendant counter claims against the Plaintiffs for rent at $400 p.m. from 1 February 2005 and aggravated damages.

5. The Amended Defence of the Third and Fourth Defendants (defence) states the new caveat was refused as it was presented for lodgement on 18 April 2005, well after the Transfer and mortgage were lodged and accepted for registration on 12 April 2005. Registration of a document occurs a couple of days after it is endorsed.

6. It is instructive to observe that the Deputy Registrar (of the court) on the hearing of the summons for directions on 28 February 2006, ordered the action be tried before a Judge and set down within 28 days which would have been 28 March 2006. It is now 11 and a half years later and it will be instructive for the parties to know this inordinate delay is not due to the fault of the court.

7. The hearing before me commenced with the Second Plaintiff (PW1) giving evidence. He said Exhibit P2 is the agreement, Exhibit P5 is the Power of Attorney and Exhibit P6 is the agreement whereby he is a co-purchaser. He said in 2000 they did not receive the Bank loan because of the George Speight coup. The seller did not rescind the agreement and they continued to make payments towards the $30,000 price directly to the Bank up to 31 December 2004. They never received notices from the First Defendant that their payments were behind time. No notice of any cancellation was received by them. The seller never told him of the FNPF debt nor is it stated in any of the documents. The First Defendant was wrong in not informing him of the full details and he never sent him a letter that he was cancelling the agreement. They lodged a caveat and when it was removed on 12 April 2005 he tried to put in another caveat but it was not registered. He had a valuation done and S.T. Lomaiviti stated the value in 2005 was $130,000. The current valuation is $150,000.

8. At this juncture Co-Counsel for the Third and Fourth Defendants produced to me a copy of the Ruling of Anjala Wati J dated 25 April 2017, which he said he only just become aware of. Counsel for the First and Second Defendants said he was aware of it. Counsel for the Plaintiffs said my learned sister had ruled that assessment and liability were to be decided. In my view it was Plaintiff Counsel’s duty to have informed me at the outset of the hearing of this ruling.

9. PW1 continued that the seller never approached him to refund the money he had paid and never advised him (PW1) that he was selling the property to the Second Defendant. There was no letter from the seller to him to pay the outstanding amount. He lost the land because of the Third Defendant removing the caveat.

10. In cross examination by Counsel for the First and Second Defendants, PW1 agreed that the First Defendant gave the deceased full power to deal with the land. He also agreed that the sum of $29,579.65 was outstanding at 31 December 1999, which is why the sale price is $30,000. He said because the $30,000 was not enough to pay the FNPF loan, the First Defendant sold to the Second Defendant, who is no relative of his. PW1’s last payment to the FDB was of $360 on 31 December 2004. The property was advertised for sale in the newspaper by the Bank. When the tenders came in to the FDB the First Defendant discovered it was not enough to pay off the debt, the First Defendant approached the Second Defendant to enter into a private sale. PW1 had an interest in the property so he put in a tender of $30,000. He did not know of anyone who came with a price higher than $54,000. He had been occupying the premises since 1 February 2005. The rent would have been $200 p.m., but he did not pay any rent. The fault of the Second Defendant was he knew they were living in the property. He had a moral but not a legal obligation to enquire of PW1.

11. When cross examined by Counsel for the Third and Fourth Defendants, PW1 said he knew the First Defendant’s account was in debt. Sometimes he, PW1, paid less sometimes more. In 2005, Maqbool & Co (Maqbool) did not inform them of the removal of the caveat and did not inform him that the caveat would be removed after 21 days if there was no objection. Maqbool should have informed him of the notice but they did not. If they had informed him things would have been different. Maqbool from 30 March to 11 April 2005 were sitting on the notice. Maqbool did not inform them he could have gone to court to extend the caveat and did not inform them he could have gone to court for an injunctive order. They should have informed him. If Maqbool had done that then they would have got the property.

12. At this time, both Counsel for the First and Second and for the Third and Fourth Defendants informed the court that they accept the two valuation reports and did not seek to cross-examine the makers.

13. The next witness was the First Plaintiff, Ram Kumari, PW2. She said she knew her husband (the deceased) was purchasing the property from the First Defendant and making payment. The sale price was $30,000. She put in a caveat. Everything was done by her son and her husband.

14. There was no cross-examination by Counsel for the First and Second Defendants.

15. Under cross-examination by Counsel for the Third and Fourth Defendants, PW2 said she left everything to her son.

16. In answer to the court, PW2 said she had been staying in the same house since 2005.

17. With that the Plaintiffs closed their case and the First and Second Defendants opened theirs.

18. The First Defendant, Vimal Prasad (DW1) now gave evidence. He had a freehold property with a house thereon where the deceased (his brother) and him and their families resided. It was mortgaged to the FDB. After his retirement he would have no income so he offered the property to the deceased and after he paid off the debt, the property would be transferred to him. The deceased applied to the FDB for a loan and so wanted the property in the names of himself and his son.

19. On 5 May 2000, the debt to the FDB was $29 - $30,000. He wrote to the deceased and the Second Plaintiff offering to sell the property for $30,000 which would have taken off the debt to the FDB. He gave the deceased a full Power of Attorney to deal with the property as he wishes. He was informed by the FDB that his loan was in arrears. This was in about 2004. He gave the FDB notice (Exhibit D2) to the Second Plaintiff and his brother. From their reaction, they did not appear interested in attending to it.

20. In 1997 to 2004, he had taken a loan of $10,000 from the FNPF who put a charge on the property. He did not tell the Plaintiffs there was the FNPF loan. He was told by the FDB that he had to repay $54,000 which included the $17,000 due to FNPF. He was told there were 3 – 4 tenders and the amounts did not exceed $30,000. So he approached the Second Defendant, his close friend who agreed to purchase the property and he sold it to him. He could not find anyone who would pay more than $54,000. He accepted the Plaintiff had paid FDB some $30,000. Rates are still due.

21. When cross-examined by the Counsel for the Plaintiffs, DW1 said he did not give any notice to remedy the account. His Sale and Purchase Agreement (SPA) with them was not cancelled as they were still making payments. Without cancelling the SPA, he proceeded to sell to the Second Defendant. The Plaintiffs did not know of the withdrawal from FNPF. The FNPF loan would be a problem if the property went for sale.

22. Under cross-examination by the Counsel for the Third and Fourth Defendants, DW1 said the Plaintiffs were aware of the fact that he was in arrears.

23. The next witness was the Second Defendant, Hermant Kumar (DW2). He said he knew the Plaintiffs were in occupation of the property. He did not enter the agreement to deprive the Plaintiffs from purchasing the land. The FDB legal department told them the property was going on tender and the sale would be advertised. He put in his offer to FDB of close to $55,000. He arranged for a loan from his Bank, BSP, which was approved. The FDB told him his figure was right and he entered into a Sale and Purchase Agreement with the First Defendant. The BSP gave Khan & Co, solicitors, the payments to FDB and FNPF. Then the land was transferred to him. He did not conspire with the First Defendant to cheat the Plaintiffs.

24. When cross-examined by Counsel for the Plaintiffs DW2 agreed that the letter (Exhibit P20) dated 23 February 2005 from Khan & Co, solicitors, addressed to the Second Plaintiff only, was premature as the transfer (to him) was only effected on 12 April 2005. He said the town rates were in arrears in 2005 and still are. He offered $55,000 because the First Defendant wanted him to clear the debts. He only purchased the property to help the First Defendant.

25. In re-examination DW2 said in 2004 – 2005 he was not looking for a property to purchase.

26. With that the First and Second Defendants closed their case and the Third and Fourth Defendants opened theirs.

27. Their first and only witness was Ms Torika Solicake Goneca (DW3), the Deputy Registrar of Titles. She said they sent the notice of intended removal of caveat to the caveator, the First Plaintiff at c/- Maqbool & Co, by registered post. The caveator had 12 working days and could have applied for a court order to extend the caveat. The Registry followed the normal procedure here.

28. Under cross-examination by Counsel for the Plaintiffs, DW3 said the Acting Registrar of Titles in 2005 was the best person who knows about this matter. The removal of the caveat was under s. 110 of the Land Transfer Act (LTA). Once a caveat is removed there is no caveat on the title. The Registry rule is no second caveat on a title. She said everything on Exhibit P21 is the same as on Exhibit P23 except the latter is now a transfer in fee simple.

29. At this juncture I instructed the Counsel for the Third and Fourth Defendants to have the original Dealing Book in court the next morning for my inspection.

30. DW3 continued that the transfer of lease was re-lodged with a new number. The lodgement number of the transfer in fee simple was the same number as the transfer of the lease. She agreed that someone “has altered or fiddled with the document.”

31. The next morning (20 September 2017) the original transfer was produced. After examining it, the Counsel for the Plaintiffs and the Counsel for the First and Second Defendants informed the court that the transfer in fee simple has been tampered with. However, Counsel for the Third and Fourth Defendants stated it has not been tampered with.

32. DW3 was recalled and continued with her evidence. She produced the original transfer in fee simple and said it had not been tampered with by the Registry. She produced the certified true copy of the transfer in fee simple as Exhibit D3. She said it is not the duty of the Registry to correct.

33. Under cross-examination by Counsel for the Plaintiffs, DW3 said in 2005 the Registry had only a manual typewriter and the transfer of lease could not have been typed over to transfer in fee simple. Exhibit P21 matches Exhibit D3 except for the heading and signature. She did not know what happened in this case.

34. There was no cross-examination by Counsel for the First and Second Defendants and no re-examination by the Counsel for the Third and Fourth Defendants.

35. Counsel for the Plaintiffs in his submission said the Plaintiffs have lost their land and they claim either reversal of the transactions or for compensation. The FNPF prevented the Plaintiffs from ever getting the title. If the First Defendant had given notices of breaches, and non-remedy of breaches and then cancelled, it would have been all right. The Registry was wrong to have rejected the caveat put in by the Second Plaintiff. The loss to the Plaintiffs is the worth of the property in 2005 – Exhibit P18. The Second Defendant’s Counter - Claim is improper and premature and ineffective because the notice is addressed to the Second Plaintiff and not to the First as well and the Second Defendant was not then registered owner of the property.

36. The Counsel for the First and Second Defendants in his submission said the Plaintiffs have not asked, in their Statement of Claim, for the refund of the $30,000 but only for damages. The Sale and Purchase Agreement between the Plaintiffs and the First Defendant was brought to an end by the action of the mortgagee, FDB, in advertising the property for sale in late 2004. The First Defendant took the loan from FNPF in 2003. The First Defendant did not do anything illegal; he did not cancel the Sale and Purchase Agreement; he wanted it to go on.

37. Counsel for the Third and Fourth Defendants submitted that the Plaintiffs’ solicitors were served with the notice on 30 March 2005. The documents were with the solicitors who should have gone to court for either an extension of the caveat or an injunction.

38. Counsel for the Plaintiffs in his reply said the Plaintiffs have not asked for a refund of what they paid. They wish the transactions to proceed. The issue of a refund is not for consideration. The Plaintiffs ask for $130,000, the value in 2005 of the land and the house, as damages. The FDB is not a party to either Sale and Purchase Agreement. The breach was by the First Defendant. The Plaintiffs were not in breach. No document has been shown to the court from either side cancelling the SPA. The Plaintiffs want to continue with the SPA. It was a private sale to clear the charges to FDB and FNPF. There was a breach by the First Defendant in not disclosing the FNPF charge to the Plaintiffs. There was no termination by the First Defendant cancelling the sale. Counsel said the caveator had 12 days to extend the caveat. The caveator had the full period taken away from them.

39. At the conclusion of the arguments, I said I would take time for consideration. Having done so, I now deliver my decision.

40. The crux of this matter can be succinctly stated as follows. Was the First Defendant entitled to sell the property to the Second Defendant after having agreed to sell it to the Plaintiffs? This is the pivot on which are suspended all other issues.

41. So I shall start by perusing the agreements concerned. The first is dated 31 July 1997 and is Exhibit P2. It is made between the First Defendant and the deceased. My conclusion regarding this agreement is that it is an open ended one with an obligation imposed upon and accepted by the deceased that he has to pay $320 p.m. till the whole debt of the First Defendant to the FDB is cleared. Then and only then will the property be transferred to the deceased.

42. Next I turn to the second agreement dated 9 May 2000 between the deceased and the Second Plaintiff and the First Defendant where the First Defendant offers to the deceased and the Second Plaintiff the property for $30,000, on the assumption that upon the latter’s bank’s approval of their loan, the property will be transferred to them as per the bank’s requirement.

43. I read this to mean that, in the First Defendant’s own word (prerogative) the deceased and the Second Plaintiff have the right or privilege to arrange the financing for the purchase of the property to enable it to be transferred to them. I also conclude that the First Defendant as vendor is now including the Second Plaintiff as co-purchaser of the property.

44. The Second Plaintiff testified that in 2000 they did not receive the loan because of the coup. I am aware of the occurrence in May 2000 of the coup but I am also taking judicial notice that the George Speight coup did not bring the banking or financial systems of Fiji to a grinding halt indefinitely. The true situation was the banks were up and running after a few days. For the Plaintiffs to evince a cavalier attitude to the fact that the bank loan was not forthcoming; for the Plaintiffs not to have exercised their prerogative and approached another bank; for the Plaintiffs to have continuing making payments to FDB, are in my view tantamount to the Plaintiffs considering and accepting the first SPA was extant. This would mean the Plaintiffs would have to continue paying FDB until the First Defendant’s account was cleared. The evidence makes it as plan as a pikestaff that that never happened. Thus the whole arrangement came to an end with the FDB issuing its notice (Exhibit D2), demanding payment of the arrears under the mortgage and if that did not happen the FDB would exercise its right to sell the property.

45. I am of opinion that when that occurred due to the Plaintiffs’ failure to clear the First Defendant’s debt, it resulted in the First Defendant being freed from selling the property to them and in the Plaintiffs claim against him collapsing.

46. S. 39 of the LTA is entitled “Estate of registered proprietor paramount, and his or her title guaranteed” and lays down in effect that his title is defeasible only by fraud.

47. If I may say so with respect, not a shred of evidence has been provided by the Plaintiffs of any fraud by the Second Defendant in his purchase of the property. To accept any of the allegations set out in the latest version of the Statement of Claim in para 39 against the buyer and against the owner and the buyer as evidence of fraud would be stretching credulity to breaking point.

48. The plain unvarnished truth is the Plaintiffs never had an lota of a claim against the land due entirely to their own acts of omission. I do not think that any equitable right, if any does exist, could spring from such barren ground.

49. It therefore follows as the night the day, that the Plaintiffs’ claims against the Third and Fourth Defendants similarly fail, in the light of my above findings of fact and law that neither the First Plaintiff nor the Second Plaintiff had any beneficial interest in the land to protect by the lodgement of a caveat. It is because of my learned sister Wati J’s ruling on 25 April 2017 that the no injustice was done to the Registrar of Titles by the attempt of the Plaintiffs’ Counsel to proceed to assessment of damages without first establishing the Registrar’s liability.

50. There only remains for me to consider the Second Defendant’s Counter-Claim for rent of $400 p.m. from 1 February 2005 until the date of judgment. It is trite law that there must be a proper and effective notice to quit to start the process of obtaining vacant possession and such notice must be given by the owner/landlord of the premises concerned.

51. Here I find as a fact that no such notice has been given in this matter. The only purported notice – Exhibit P20 – was given before the Second Defendant became the registered proprietor of the property concerned and was not given to the co- occupier/tenant, the First Plaintiff. The Counter-Claim therefore fails.

52. I am constrained to say I would have been prepared to order the First Defendant to pay the First and Second Plaintiffs the sum of $31,850 paid by them to the FDB for the account of the First Defendant, but am precluded from doing so by the express statement of the Plaintiffs’ Counsel that the Plaintiffs have not asked for a refund of what they paid and that the issue of a refund is not for consideration. This is a once and for all abandonment of that claim.

53. I have not considered the transfer, Exhibit D3, from the First Defendant to the Second in my judgment because it is not relevant to the issue between the Plaintiffs and the First and Second Defendants. Even if the transfer were to be reversed that would not translate into a transfer to the Plaintiffs.

54. For the sale of completeness I shall assess the damages if liability had been established. For this shall turn to the Plaintiffs’ claim.

55. It is clear that from the applicable law that the Plaintiffs would have been unable to obtain any of the relief claimed as the Second Defendant’s title is indefeasible as I made a finding of fact that there was no fraud on his part. Any questions regarding the validity or otherwise of the transfer in fee simple to the Second Defendant, even if decided against the Second Defendant does not operate ipso facto to transfer the property to the Plaintiffs.

56. The application for specific performance of the agreements made on 31 July 1997 and on 5 May 2000 similarly are now impossible to grant as they require (the Plaintiffs) to first clear the First Defendant’s debt to the FDB which they failed to do and which today they will be unable to do.

57. In other words no court will order an injunction or specific performance where it will serve no purpose as is the case here. So this leaves only the issue of damages.

58. These have been particularised in the alternative prayers. The first is special damages in the sum of $54,000, being the sale price of the land. There is no basis for the Plaintiffs to claim this sum when from the Second Plaintiff’s own testimony he only tendered $30,000 to the FDB. Clearly he did not think the property was worth much more, which leads me to the next claim.

59. This is for the sum of $76,000 being the alleged loss on the sale – the difference between the $130,000 value and the $54,000 sale price. It is significant that in the statement of claim dated 28 April 2005, some 2 weeks after the transfer of the property, the Plaintiffs were stating the value of the land was $54,000.

60. This and the Second Plaintiff’s tender of only $30,000 clearly show that the court should not set any store by the valuation of $130,000 in Exhibit P18. I note the following salient features of this valuation report:

(1) It is dated 11 February 2016.
(2) It is aimed “to determine the Current Value or Value as Is”.
(3) “This Valuation represents our opinion of value as at the date of the Report”.

61. Therefore the bald unsupported assertion that the market value in 2005 was $130,000 cannot be accepted in any court of law for it begs the question why was such a valuation report not obtained in April 2005. A judge should therefore look askance at the alleged market value 12 years ago.

62. Even if I had accepted the market value in 2005 was a figure between $30,000 and $54,000 and would have prepared to award the median figure, I would have had to

deduct therefrom in the words of Lord Wright, in the Fibrosa Spolka Alecyjna v Fairbairn Lawzen Cambe Barbaw Ltd [1942] UKHL 4; [1943] AC 32 pg 61, the benefit the Plaintiffs derived from the Defendants which it is against their conscience they should keep. This is the principle of unjust enrichment. So since the Second Plaintiff stopped the payments to the FDB on 31 December 2004 which included a monthly house rent of $200, which he did not pay this sum would have to be deducted from 1 January 2005 to at least 22 September 2017, a total of 153 months which would come up to $30,600. From the 2005 market value of say $42,000 (the median figure between $54,000 and $30,000) the total rent of $30,600 (unpaid) would have to be deducted. This will leave a sum of $11,400 to be paid to the Plaintiffs. I would apportion the payment of this sum at 50% against the First Defendant and at 50% against the Third Defendant.

63. Finally I would not have allowed the claims of $200 for maintenance and $4500 for reclamation as no specific detailed itemised bills and receipts for the same were provided by the Plaintiffs to the court. A bald statement dated 21 April 2005 is no proof in a court of law of an expenditure allegedly incurred in 2001

64. In the result I make the following orders:

(1) All the claims of the First and Second Plaintiffs against the First, Second, Third and Fourth Defendants are hereby dismissed.
(2) The Second Defendant’s Counter-Claim against the First and Second Plaintiffs is hereby dismissed.
(3) Each of the parties shall bear their own costs of this matter.

Delivered at Labasa, this 22^nd day of September, 2017.

..........................

DAVID ALFRED

JUDGE

HIGH COURT OF FIJI