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Krishna v Dabea [2022] FJHC 8; HBC54.2010 (7 January 2022)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBC 54 of 2010

BETWEEN:
SHIRI KRISHNA father’s name Ram Sarup of Navakai, Nadi but temporarily of Sacramento, USA, a retired person.
PLAINTIFF

A N D:
RATU LIVAI VOLAVOLA DABEA of Navakai, Nadi, a Fuelling Inspector.
FIRST DEFENDANT

A N D:
DIRECTOR OF LANDS
SECOND DEFENDANT

A N D:
ATTORNEY GENERAL
THIRD DEFENDANT

A N D:
REGISTRAR OF TITLES
FOURTH DEFENDANT

Appearances: Mr. Sivam for the Plaintiff
Mr. Mainavolau for the 2^nd, 3^rd and 4^th Defendants
Mr. S.Krishna for the 5^th Defendant
Date of Hearing: 16 November 2021
Date of Ruling: Friday 07 January 2022

R U L I N G

INTRODUCTION

1. The full background to this case is set out in Krishna v Dabea [2020] FJHC 58; HBC54.2010 (7 February 2020).
   
2. What is before me now is a Summons filed on 01 April 2021 by the fifth defendant to fix security for costs against the plaintiff.
   
3. The Summons is filed pursuant to Order 23 Rule 1(a) of the High Court Rules 1988 and the inherent jurisdiction of the Court.
   
4. It is supported by an affidavit of Roopesh Prakash Singh sworn on 15 March 2021.
   

BACKGROUND

5. Ratu Livai was interested in a parcel of land which belonged to Krishna. That particular piece of land which Ratu Livai was keen on was actually part of a bigger piece of land which was comprised in State Lease 10020.
   
6. Sahay says that CL 10020 was issued for a term of twenty eight (28) years eight months and twenty two days from 09 July 1984. It was to expire on 31 December 2012.
   
7. According to the plaintiff, Krishna and Ratu Livai then entered into two arrangements over the same piece of land. The first was a tenancy agreement entered into in June 2002.
   
8. The second was a sale and purchase agreement which they also entered into in June 2002.
   
9. Apparently, Ratu Livai also moved in to occupy the property in question in June 2002 pursuant to the tenancy agreement.
   
10. For the tenancy agreement, Ratu Livai was to pay the sum of $300 per month.
    
11. For the sale and purchase agreement, the consideration of $70,000 was to be paid by Ratu Livai on the following arrangement:
    
    • (i) that Ratu Livai would pay Krishna the sum of ten thousand dollars ($10,000) as deposit on 17 June 2002.
    • (ii) that the balance of sixty thousand dollars ($60,000) was to be paid by Ratu Livai at settlement.
    • (iii) Krishna was to transfer “the said portion of the said Crown Lease” in exchange for the consideration sum.
      
12. The law firm of Patel & Sharma prepared both the Sale and Purchase Agreement and the Tenancy Agreement and also acted as common solicitor for Ratu Livai and Krishna to carry out and complete the Sale & Purchase Agreement.
    
13. It appears that the plaintiff emigrated from Fiji to the USA many years ago where he resided for more than ten years. He then decided to move from the US to New Zealand where he has resided for many years up to this day.
    
14. As I have said, the plaintiff was the lessee of the property in question.
    
15. At some point between 1998 and 1999, he desired to subdivide the said land into two plots. On 06 January 1999, he wrote a letter of request to the Divisional Surveyor Western for approval to subdivide the land. The DSW would approve this application and, accordingly, issued survey instructions to the plaintiff’s nominated surveyor.
    
16. The plan was registered as per the requirement of the Surveyor’s Regulation as Lots 1 and 2 on SO 4697 and the subdivision of the land into two lots was carried out pursuant to the plaintiff’s wishes.
    
17. The issues in this case appear to stem from manner in which the subdivision was carried out. From what I gather, out of the subdivision, two lots were created.
    
18. The first one was CL 16460 Lot 1 on SO 4697 and which has an area of 1496 square meters. This Lot 1 was registered in favour of Ratu Livai on 21 April 2006. It is this process which resulted in the transfer of this Lot to Rau Livai which appears to the main grievance of the plaintiff in this case.
    
19. The second one was Lot 2 SO 4697. This was transferred from the plaintiff to one Jenendra Chand for the sum of $10,000.00. This Lot 2 is 1.359 ha in size.
    

ISSUES WHICH THE PLAINTIFF HAS

20. Notably, the plaintiff and Ratu Livai did enter into a sale and purchase agreement regarding Lot 1 at some point around June 2002. They signed a sale and purchase agreement which was prepared by Patel & Sharma who acted for both parties.
    
21. According to the plaintiff, the consideration was $70,000 as stated in the agreement. However, contrary to the agreement, Patel & Sharma prepared an Instrument of Partial Transfer in favour of Ratu Livai which stated that the consideration was $55,000 instead of $70,000. Patel & Sharma pleads that the deal between the plaintiff and Ratu Livai did not eventuate – probably because of the exorbitant price the plaintiff was seeking for Lot 1 and a bank valuation. They maintain that the plaintiff and Ratu Livai later agreed to the price of $55,000.
    
22. The plaintiff maintains that, although he did execute the Instrument of Partial Transfer, he was not aware of all that was happening and that the revised amount did not catch his attention.
    
23. The plaintiff maintains that, unbeknown to him or his lawful attorney, Patel & Sharma would proceed to lodge the said transfer for registration with the Registrar of Titles, and provided a copy of the Instrument to Ratu Livai.
    
24. The plaintiff maintains that Ratu Livai has never ever settled the consideration sum of $70,000 or any part thereof.
    
25. As the plaintiff would have this court believe, all this happened:
    
    • (a) while Westpac Banking Corporation held a mortgage over CL 10020 which mortgage was given by Krishna on 08 October 1993. The mortgage, which was consented to by the Director of Lands, remains undischarged to this day.
      
    • (b) whilst CL 10020 was still a valid and subsisting lease, the Director of Lands had gone ahead and issued CL 16460 on 21 April 2006 (legally described as “Solawaru & Enamanu Ba and Nubu or Vakai in the Ba Province in Nadi district and having an area of 1496M² being Lot 1 on SO 4697).
      
    • (c) the Director of Lands wrongfully and unlawfully issued CL 16460 and in doing so, had acted in breach of CL 10020.
      
    • (d) the plaintiff never requested nor authorized the Director of Lands to deal with CL 10020 in any manner whatsoever. Furthermore, he deposes that neither he nor Krishna ever executed any documents to surrender his rights or interests in CL 10020 or any part thereof.
      
    • (e) the Registrar of Titles wrongly and unlawfully registered CL 16460 under the Land Transfer Act when CL 10020 is still a valid lease registered under the Land Transfer Act.
      
    • (f) the leasehold interest in CL 16460 in favour of Ratu Livai is a part of the leasehold interest that was granted by the Director of Lands to Krishna. This interest remains with Krishna. Thus the Director of Lands had wrongfully and unlawfully granted two leasehold interests for the very same land.
      
    • (g) Krishna’s solicitors wrote to the Director of Lands on 10 September 2009 to cancel Ratu Livai’s leasehold over CL 16460.
      
    • (h) Krishna then instituted Civil Action No. 08 of 2008 at the Lautoka High Court against Ratu Livai wherein an Order for Vacant was granted. However, the High Court Sherriff refused to execute the Writ of Possession against Ratu Livai when Ratu Livai showed him CL 16460.
      
    • (i) Ratu Livai has not paid any rent nor any consideration for the property.
      
    • (j) Krishna has not been able to have access to his property which is in a very bad state of repair and that Krishna needs to urgently carry out all the repair works.
      

DISCUSSION

26. The principles by which security for costs is ordered by the Court is well settled. It is ultimately a matter of discretion for the Courts.
    
27. Residence outside the jurisdiction is a factor which the court may consider to order security for costs . As Sir Nicolas Browne-Wilkinson V, -C, put it in Porzelack K.G. v. Porzelack (U.K.) Ltd. [1987] 1. W.L.R. 420, 422-423:-
    

“The purpose of ordering security for costs against a Plaintiff ordinarily resident outside the jurisdiction is to ensure that a successful defendant will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs. It is not, in the ordinary case, in any sense designed to provide a defendant with security for costs against a Plaintiff who lacks funds. The risk of defending a case brought by a penurious Plaintiff is as applicable to Plaintiffs coming from outside the jurisdiction as it to Plaintiffs resident within the jurisdiction. There is only one exception to that, so far as I know, namely, in the case of limited Companies, where there are provisions under the Companies Act for security for costs . Where the Plaintiff resident outside the jurisdiction is a foreign limited Company, different factors may apply: see DSQ Property Co. Ltd. v Lotus Cars Ltd. [1987] 1 W.L.R. 127. Under the R.S.C., Order 23, r.1 (1) (a), it seems to me that I have entirely general discretion either to award or refuse security, having regard to all the circumstances of the case. However, it is clear on the authorities that, if other matters are equal, it is normally just to exercise that discretion by ordering security against a non-resident Plaintiff. The question is what, in all the circumstances of the case, is the just answer.”

28. While the documentation appears to suggest that the plaintiff had executed all the necessary documents pertaining to the sale of Lot 1 to Ratu Livai, I am also of the view that there is much to be accounted for to the plaintiff by both the Director of Lands and also Patel & Sharma in particular, with regards to the said conveyance if the plaintiff is to be believed that no consideration was ever paid.
    
29. However, I am still of the view that the plaintiff, being a resident abroad for over twenty years or so, should pay an appropriate amount as security for costs which is not so oppressive so as to stifle his claim.
    
30. I am of the view that the sum of $25,000 – 00 is appropriate in the circumstances and I so order accordingly. This sum is to be posted into the Chief Registrar’s Account in thirty days.
    

ORDERS

1. Plaintiff to post security for costs in the sum of $25,000 -00 into Court in thirty days.
   
2. Case adjourned to Tuesday 08 February 2022 at 10.30 a.m. to check on compliance.
   

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

Anare Tuilevuka

JUDGE

Lautoka

07 January 2022