IN THE MAGISTRATE’S COURT AT SIGATOKA
CIVIL JURISDICTION
Civil Case No. 041 of 2022
BETWEEN:	JAMES PARAS RAM of 16 Nimbin Avenue, Hoxton Park 2171, New South Wales, Australia, Businessman.
PLAINTIFF
AND:	MUNI KRISHNEEL NAND of Malaqereqere, Sigatoka, Carrier Driver.
DEFENDANT
For the Plaintiff:		Mr. K. Chand of Pillai Naidu & Associates 
For the Defendant:		In person
JUDGMENT

1.	This is a Ruling on a civil claim for breach of Sales and Purchase Agreement filed by the Plaintiff against the Defendant. 
The Claim
2.	The Plaintiff filed a Writ and Statement of Claim dated 10th March 2023. 

3.	The Plaintiff states that the parties entered into a sales and purchase agreement with the Defendant on 13th December 2016. The nature of the agreement was that the Plaintiff was to sell his land described as Certificate of Title Number 35766 being Lot 6 on DP No 7641, land known as Malaqereqere in the Province of Nadroga. Tikina of Cuvu and in the Island of Viti Levu containing an area of 1006 square meters (“the land”) to the Defendant. The Defendant in turn would then pay the Plaintiff the sum of $10,000.  

4.	The transfer of the land was then executed on 23rd May 2017.

5.	However, the Defendant failed to pay or has refused to pay the Plaintiff the said sum of $10,000. 

6.	 The Plaintiff claims inter alia for judgment in the sum of $10,000.00 and assorted interests of about $5,074.21.
The Defence
7.	The Defendant filed his Statement of Defence on 11th March 2022 states that he did enter into a sales and purchase agreement with the Plaintiff regarding the land at the S.S Law in Sigatoka Town. The Defendant prepared the transfer documents and posted it to the Plaintiff in Australia who then signed and witnesses the same before a Notary Public.

8.	The Defendant seeks for the claim to be dismissed.   

9.	The Plaintiff filed its Reply to Statement of Defence on 6th May 2022.

10.	The parties also filed and relied on affidavits that were filed in interlocutory proceedings in this matter in support of their respective positions during the Hearing.

11.	The matter proceeded to Hearing on 25th April 2025, 11th July 2025 and 25th August 2025. 

The Plaintiff’s Case
12.	Plaintiff Witness 1 (PW1) is James Paras Ram, a businessman of 16 Nimbin Avenue, Hoxton Park 2171, New South Wales, Australia. He was the registered proprietor of the land when the Defendant expressed interest to purchase the land on the following terms:
a.	The sale price of FJD$10,000.
b.	Full payment to be made on date of settlement.
c.	Administration costs not to be borne by Plaintiff.
d.	All payments including purchase price and fees for witnessing were to be deposited into bank account, the details of which he provided to the Defendant. 

He then signed the sales and purchase agreement and the transfer instrument having the same witnessed and notarised by a Notary Public in Australia. The fees for this was $4,500 which the Defendant paid to the Plaintiff’s ANZ Account Number 3120698. The signed documents were sent back to the solicitor of the Defendant. He learnt that the land was transferred to the Defendant and registered to him on 23rd May 2017. Upon visiting Fiji in February 2020, he discovered that the Defendant had not paid the said $10,000 into his account. He then tried to contact the Defendant and was unsuccessful. He then issued a Demand Notice to the Defendant to comply with the terms of the sales and purchase agreement and make full payment but the Defendant still did not respond. The Defendant’s actions have caused him among other things, financial hardship and emotional distress. He therefore claims for judgment in the sum of $15,074.21, further interest of 13.5% from 1st March 2021 until payment; interest, costs on solicitor client-indemnity basis and any other relief.  

13.	In cross-examination, he denies sending the original sale and purchase agreement to his brother, Sunil Kumar nor did his brother receive the $10,000 on his behalf. According to said sales and purchase agreement, settlement should have been done 3 months from date of signing, that is, between 13th December 2016 and 13th March 2017. He does not know anything about settlement as he was overseas and so he only came to know of the non-payment after arriving into Fiji three years after settlement. He admits coming into Fiji between 2017 and 2018 for his brother’s funeral but did not check up on the supposed outstanding consideration of $10,000.  

14.	Plaintiff Witness 2 (PW2) is Jasveel Singh, Legal Practitioner of Sigatoka. He states that the firm that he was with then which was S.S Law, drafted the Sales and Purchase Agreement for the Defendant and his father. He cannot recall if you spoke to the Plaintiff but the agreement was only between the parties and not with any third party.   

15.	The Plaintiff tendered the following exhibits:
a)	Plaintiff Exhibit 1 (PE1) – Affidavit of Evidence in Chief
a.	JPR-1 –Sales and Purchase Agreement for the Land dated 13th December 2016
b.	JPR-2 – ANZ Interim Statement of Account No. 3120698
c.	JPR-3 – Demand Notice dated 27th July 2020.
d.	JPR-4 – Transfer Document dated 13th December 2016.

16.	That was the Plaintiff’s case. 

The Defendant’s Case
17.	The Defendant Witness 1 (DW1) is the Defendant, 37 years Driver of Rakirakilevu, Sigatoka. He states that he and his father bought the land from the Plaintiff who was in Australia. However, he states that only his name appears on the said Sales and Purchase Agreement. He states his father, Keshwa Nand acted on his behalf in all the dealings regarding the land. He says all the communication was between his father and the Plaintiff. All he did was to arrange and pay the $10,000 to his father. He understands that the said money was then given by his father to Sunil who is the brother of the Plaintiff, at Malaqereqere and that Sunil was to give the title of the land a week later. After a week, he received the said title from his father. The whole transfer was done by a lawyer Ms. Angeline within a year. 

18.	In cross-examination, he states that he is the Purchaser and party to the said agreement, not his father. He admits that his earlier statement that he was going to pay the Plaintiff after selling his vehicle was wrong. He does not have any evidence to show that the $10,000 was from his bank account. He denies being required to pay the consideration amount to the Plaintiff’s account. He admits that in an earlier statement where states that that he and the Plaintiff signed the Sales and Purchase Agreement before Mr. Jasveel Singh is different.

19.	Defense Witness 2 (DW2) is Keshwa Nand, Bailiff of Sigatoka. He brokered the deal regarding the land with the Plaintiff who is his uncle as the Plaintiff wanted to sell the land. They agreed to $10,000 and the Plaintiff then appointed his brother Sunil Ram to act on his behalf as he was in Australia. 

20.	That was the Defendant’s case.

Court’s Witness
21.	At the completion of the case for the parties, the Court identified one Sunil Ram as a relevant witness in this matter and as such summoned the said witness pursuant to section 52(1) of the Magistrates Court Act.

22.	Court Witness (CW) is Sunil Ram, Taxi Driver of Malaqereqere. The Plaintiff is his brother and the Defendant is his nephew. He recalls the Plaintiff asking him to collect the $35,000 from DW2 in 2016 and so $25,000 was paid while $10,000 was pending. He did give the title of the land to DW2 after $25,000 was paid.  

Analysis
23.	After the hearing, both parties filed helpful written submissions to assist the Court. The Court has considered the content of all submissions and moves to analyse and determine the salient features of the matter. 

24.	In any civil proceeding, the standard of proof is always one which is established on a balance of probabilities which has been aptly described in Miller v. Minister of Pensions 1947 2 All E.R. 372 where Lord Denning stated that the standard of proof regarding balance of probabilities as:
"That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."

25.	Now the Plaintiff’s claim is that there was a contract by way of Sales and Purchase Agreement and the Defendant breached it. When looking at elements of a contract, I adopt the age old authority as submitted by Counsel for Plaintiff in the case of Carlill v Carbolic Smoke Ball Company [1893] 2 QB 256. These elements have been well adopted in Fiji in many binding authorities, which also include the case of Goundar v iTaukei Land Trust Board [2019] FJHC 351. The elements are offer, acceptance, consideration, intention to create legal relations and capacity to contract. In this matter, there is no issue or dispute that there exists a contract between the parties. I find there is sufficient evidence from PW1, PE1 and DW1 to show that these elements are proven. There was an agreement between the Plaintiff and the Defendant for the purchase of the land in the sum of $10,000. 

26.	The issue here is that the Plaintiff avers that the Defendant did not perform his part of the agreement when he failed to provide the full consideration amount of $10,000 to him, the Plaintiff. The Defendant on the other hand, says that he did but through third parties, that is his father, DW2 who then gave it to CW as the Plaintiff’s representative. 

27.	Defendant raises the issue of delay in instituting this claim. According to said sales and purchase agreement, settlement should have been done 3 months from date of signing, that is, between 13th December 2016 and 13th March 2017. The Plaintiff did not follow up on this until 2020 when he found out that he did not receive the consideration of $10,000 into his local bank account. This may mean that for three (3) years the Plaintiff was of the understanding that the settlement was done. The Plaintiff states that he was overseas during settlement and so he only came to know of the non-payment after arriving into Fiji three years after settlement. Further to this, the Defendant raises the point that the Plaintiff admits coming into Fiji between 2017 and 2018 for his brother’s funeral and on both occasions, he did not bother checking up on the supposed outstanding consideration of $10,000. On the other hand, the Plaintiff may have not instituted this claim earlier for various reasons. It does however compel this Court to question why did not the Plaintiff institute this claim much immediately after settlement. Was it because he was content with the settlement of the matter and did not see the need to make it an issue or was it because it was an issue but he could not practically bring the matter to Court by virtue of being overseas? We will not know but what we do know is there was a delay in filing this claim. In the case of Momoivalu v Telecome Fiji Ltd [2007] FJCA 95, the Court of Appeal stated “the law has for centuries frowned on undue delay in prosecuting actions. There is an old maxim “vigilantibus on Dormientibus, jura subveniunt”…means that the law assist those who are vigilant, not those who sleep on their rights.” The Plaintiff was not vigilant in filing this claim. This is consistent with what the Defendant avers. The next question is – by virtue of the Plaintiff not been vigilant, did he actually sleep on his rights? Section 4 of the Limitation Act requires a claimant to file an action within 6 years from the year that cause of action on simple contract accrued. Here, the cause of action accrued in March 2017 and the action filed in 2022, that is, 5 years. Therefore, the Plaintiff did not sleep on his rights and was well within it to file this claim. Consequently, no inference can now be drawn from the action(s) of the Plaintiff filing this claim in 2022.    

28.	Plaintiff highlights prior inconsistent statements made by the Defendant. 

a.	The ultimate test in assessing inconsistencies was laid down in the case of Nadim v State [2015] FJCA 130; AAU0080.2011 where the Court of Appeal stated: “…inconsistencies go to the credibility of the witnesses. But, the weight to be attached to any inconsistency…depends on the facts and circumstances of each case.” 
b.	Firstly, the Defendant admits that his prior statement, in paragraph 8 of his affidavit filed on 3rd November 2023, stating that he was going to pay the Plaintiff after selling his vehicle was, wrong. He does not offer any explanation on why he deviates from his earlier sworn evidence. This goes to his credibility. The fact here was that he said in his earlier sown evidence that he knew that the Plaintiff knew that he (Defendant) was going to pay the $10,000 consideration after selling his vehicle. However, he deviates from this fact by disagreeing with it and further remains with the general stance that he paid his father the $10,000 who then conveyed the same to the Plaintiff. The Court attached significant weight on this inconsistency.
c.	Secondly, the Defendant admits that his prior statement in paragraph 2(ii) of his affidavit field on 14th March 2022 stating that he and the Plaintiff signed before the qualified witness was different from what he was saying in Court, which was that the Plaintiff signed in Australia. This also goes against the Defendant’s credibility.  

29.	The Defendant does not explain in his defense where he raised the $10,000 from and how he paid it through his father. The Court is at a loss as to the source of this $10,000 and the circumstances around that. Such evidence would have assisted the Court significantly in determining the provenance of the consideration sum. The Defendant only states that he gave the consideration sum of $10,000 to DW2 who then gave it to CW. CW was then called in by the Court to verify what the Defendant was saying. However, CW states that he did act as a sort of representative for the Plaintiff to the Defendant through DW2. All he knows, which is the essence of his evidence, is that $10,000 remained outstanding from DW2. This strongly indicates that the Defendant or DW2 never paid the $10,000 to CW as claimed by the Defendant. Further to this, the Plaintiff’s bank account (JPR-2) in PE1 shows that the sum of $10,000 was never paid into it.     

30.	DW2 appears to have brokered the deal regarding the land but instead of not including him in as a party, arranges for his son the Defendant to be the buyer. This nonsensical arrangement, if so, was the gist of the problem. In Goundar (supra.), the elements of a contract, that is, offer, acceptance, consideration, intention to create legal relations and capacity to contract – are between two or more parties. The contract here is the Sales and Purchase Agreement and so all the terms including arrangements, payments, settlement and so on should be contained in it. Here, DW2 supposedly represents the Defendant as a party to the contract. Is this in the said agreement? With respect, no, it is not. There is no provision or allowance for DW2 to be a representative of the Defendant or in other capacity. This means DW2 should not have been part of the deal at all as the wording of the said agreement was exclusively between the Plaintiff and the Defendant. The Defendant as well should not have allowed his father to represent him in any capacity as the contract does not provide for the same.  

31.	In the circumstances, I choose to believe the veracity of the evidence of the Plaintiff. I do find that that the Defendant breached the said Sales and Purchase Agreement by not paying the sum of $10,000 as consideration to the Plaintiff.

32.	The Court however was not referred to nor could it identify evidence in the Plaintiff’s Affidavit of Evidence of Chief regarding the interest claimed by the Plaintiff. In specific absence of this, the Court will only go insofar as the consideration sum is concerned. As his Lordship Mr. Justice Pathik said in Nand v Dominion Insurance Ltd [2000] FJHC 167: “The Plaintiff has to prove the extent of his loss. The burden of proof in a civil action is with the Plaintiff and the assessment of loss needs to be proved by the Plaintiff.” Hence, I cannot really assess the loss in terms of interests claimed and ultimately, include the same in this matter.      

Determination
33.	It is determined that the Plaintiff has proved its Claim against the Defendant on a balance of probability. 

34.	I hereby award Judgment in the sum of $10,000 in favour of the Plaintiff.

35.	Post Judgment interest of 5%.

36.	Costs summary assessed at $750 to be paid to the Plaintiff in 28 days.

37.	30 days to appeal.

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J. Daurewa
Resident Magistrate
7th November, 2025