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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
On Appeal from the High Court
CIVIL APPEAL NO. ABU 107 OF 2023
[Lautoka High Court Case No. HBC 243 of 2021]
BETWEEN:
ANOOP KUMAR
Appellant
AND:
1. ARUN KUMAR
2. ADIT KUMAR
3. NALINI PRAHALAD
4. PARBINA BALGOVIND
5. ROHINI LODHIA
6. KESHNI CHANDRA
7. LALIKA LATIKA DEVI
Respondents
Coram: Andrews, JA
Clark, JA
Winter, JA
Counsel: Mr. R. P. Singh on behalf of the Appellant
Mr. R. Charan on behalf of the 1st, 2nd, 5th, 6th and 7th Respondents
Mr. K. Siwan, on behalf of the 4th Respondent
Date of Hearing: 13 November 2024
Date of Judgment: 28 November 2024
JUDGMENT
Andrews, JA
Introduction
[1] The appellant and all of the respondents are siblings. Their father, Surendra Prasad, died intestate on 2 March 1982. On 9 September 1982 the appellant was granted Letters of Administration in respect of Surendra Prasad’s estate (“the estate”). The appellant and the respondents are all beneficiaries in the estate, in equal shares. The estate consisted of State Lease 717923, comprising 7.37634 ha (approximately 18 acres) of land used for sugar cane cultivation (“the land”). The appellant has lived and worked on the land for all of his life. Two of the respondents live in Canada, the other five live in Australia.
[2] Despite more than 42 years having passed since the grant of Letters of Administration, the estate has not yet been distributed. On 17 November 2021, the appellant filed an Originating Summons in the High Court at Lautoka in which he applied for an order for the sale of the land. The application was expressed to be made under s 119 of the Property Law Act 1971.
[3] The appellant’s application was dismissed in a judgment delivered by Justice Mohamed Mackie on 20 September 2023 (“the High Court judgment”).[1] The appellant has appealed to this Court against the High Court judgment.
Background
[4] Given the period of time that has passed since the Letters of Administration were granted, it is necessary to set out, in some detail, the history of events relating to the estate over the last 42 years. In this judgment the appellant, Anoop Kumar, will be referred to as “the appellant”, notwithstanding that at various times his status in Court proceedings has been as “defendant”, “respondent”, or “applicant”. The respondents will be referred to collectively as “the respondents” (again irrespective of their status at any particular time), except where it is necessary to refer to them individually.
[5] On 27 November 2012 the 1st and 2nd respondents applied in the High Court’s Probate jurisdiction for orders against the appellant concerning his administration of the estate. I will refer to this proceeding as “the Probate proceeding”. On 15 July 2015, Justice Brito-Mutunayagam ordered that:[2]
[a] The appellant was to provide the 1st and 2nd respondents with full and complete accounts of income and expenditure on the land, and all monies received on the sale of the land, within14 days;
[b] distribution of the estate to the beneficiaries was to be completed within three months from the date of the judgment;
[c] all other relief sought by the 1st and 2nd respondents was declined; and
[d] the 1st and 2nd respondents were to pay the appellant costs of $1,000.
(“the distribution judgment”)
[6] On 15 August 2016 the appellant filed an application in the Probate proceeding for an order that he pay out the beneficiaries of the estate $5,000 each. That application was dismissed in a judgment delivered by Justice Brito-Mutunayagam on 2 February 2017, (“the pay-out judgment”) on the grounds that the 1st and 2nd respondents did not accept his suggestion, and that his submission that subdivision of the land might not be possible as the beneficiaries were overseas citizens was “unsubstantiated and untenable”.[3] Without referring to any evidence on the point, the Judge also said in the pay-out judgment that “the land has already been sub-divided and been sold by” the appellant.
[7] On the same day, Justice Brito-Mutunayagam delivered his judgment on an application made by the 1st and 2nd respondents for an order to commit the appellant to prison for contempt of Court, on the grounds that he had failed to comply with the orders made on 15 July 2015 (“the contempt judgment”).[4] It was held in the contempt judgment that the appellant had committed a contempt of court:
[a] The appellant had provided the 1st and 2nd respondents with accounts, and they had sought clarification; such that the appellant had not disobeyed that order;
[b] With respect to the order to distribute the estate within three months, while the appellant had said that the 1st and 2nd respondents had not responded to his suggestion that he purchase their interests in the estate, he had failed to provide a cogent reason for failing to comply with the order to distribute, and had wilfully disobeyed that order.
[8] In a sentencing judgment delivered on 21 March 2017 (“the sentencing judgment”), Justice Brito-Mutunayagam sentenced the appellant for contempt in the Probate proceeding. The appellant was ordered to pay a fine of $5000 (in default 3 months’ imprisonment), and to comply with the orders made on 15.7.2015 and distribute the balance of the estate to the beneficiaries within 60 days (in default 3 months’ imprisonment). The appellant was also ordered to pay $1000 costs to the 1st and 2nd respondents within 15 days.
[9] The appellant applied for leave to appeal to the Court of Appeal against the contempt judgment and the sentencing judgment. In a judgment delivered on 30 November 2018, the Court of Appeal declined leave.[5]
[10] On 17 November 2021, the appellant commenced the proceeding which led to the appeal before this Court. He sought orders pursuant to s 119 of Property Law Act 1971 (“the PLA”) for leave to issue the proceeding against the named defendants, leave for substituted service by registered mail, an order for sale of the land in State Lease 717923 on such terms as the Court deemed fit, such further or other orders as the Court deemed fit, and costs.
[11] The appellant set out the grounds of the application as being that he is a beneficiary and the sole administrator of the estate, the respondents are all beneficiaries in the estate, the estate is the lessee of the land under state lease 717923, all the respondents and he have an interest in the estate (although the 3rd respondent had renounced her interest in favour of him,) and that the respondents all reside permanently outside the jurisdiction of the Court in Australia;
[12] As further grounds the appellant said that the estate land is agricultural used for cultivation of sugar cane, it has only one dwelling on it, and it would be impractical to partition the land, but it was in benefit of all parties having an interest in it for the land to be sold.
[13] In his affidavit in support of the application, sworn on 27 October 2017, the appellant referred to the grant of Letters of Administration in respect of the estate, and said that his mother, Ram Raj, had died intestate and her estate had not been administered.
[14] He referred to the order as to distribution made in the Probate proceeding on 15 July 2015, and stated that the parties had executed transfers of shares in the land (“the transfers”). He also recorded that he would acquire a share from the 3rd respondent. He said that in order to complete the transfers, each of the respondents was required to be registered for tax, that the estate was not registered for tax and that the estate did not have a Tax Identification Number (“TIN”). He annexed copies of correspondence between solicitors for the parties as to requirements, including Capital Gains Tax (CGT), TINs, Fiji Revenue and Customs Service (“FRCS”) requirements, and tax returns). He also annexed copies of statements from the Fiji Sugar Cane Corporation recording harvests of sugar cane on the land.
[15] The appellant set out his reasons for seeking an order for sale of the land as being that it is state land used to grow sugarcane, under an agricultural lease which permitted agricultural use only. He also said that there is only one dwelling on the land, which he occupied as all of his siblings had migrated. He also said that it would be impracticable to partition the land, and it would be impracticable to cultivate sugarcane on the land jointly with at least seven owners. He further said that he was willing and able to purchase the land at market value as determined by Court.
[16] An affidavit sworn by the 2nd respondent on 7 March 2022 was filed in opposition to the application. He stated that he was authorised by the 1st, 5th, 6th, and 7th respondents to make the affidavit.
[17] The 2nd respondent denied that their mother had died intestate, and annexed a will (executed on 10 February 2010) in which she left her estate to her eight children in equal shares. He did not state her date of death, or refer to any grant of Probate over her estate. He then set out the course of the Probate proceeding, and orders made in that proceeding. He asserted that the appellant was “to this day still in contempt” of the orders made on 15 July 2015.
[18] The 2nd respondent stated that the Minister of Lands and Mineral Resources had consented to the transfers, and the FRCS had clarified issues of TINs and CGT. He asserted that the appellant was “trying by all means not to register the TIN for the estate as he would be required to pay taxes on the lots he has sold under the estate”. He did not provide any details as to the allegation that the appellant had sold lots from the estate.
[19] He further asserted that the respondents were entitled to their shares in the estate, as the estate land is of sentimental value to them, it being their last memory of their father. He asserted that the respondents could obtain separate cane contracts for their shares of land, they could attend to rezoning and subdivision, and they had given the appellant consent to occupy the dwelling.
[20] Finally, he stated that the appellant had never, in the course of the Probate proceeding, put a proposition to the respondents that it would be in the best interests of them all if the land were sold to him, and asserted that this was another of the appellant’s “delay tactics”.
[21] In his affidavit in reply, sworn on 14 July 2022, the appellant recorded that his mother had died in Australia, her will had never previously been brought to his attention, and the intended trustees of her estate (the 1st and 2nd respondents) had not obtained probate for her estate. He further said that he understood that an order for probate in respect of his mother’s estate was required in order to register a TIN for his father’s estate.
[22] The appellant confirmed that the documents for transfer of land to the respondents had been consented to by the Director of Lands, but in order to complete the transfers a TIN for the estate had to be lodged with FRCS for assessment and the issue of a CGT certificate. For that to occur, all beneficiaries in the estate had to have TINs. He said he had not been provided with TINs for the 3rd respondent, the 4th respondent, or for his late mother’s estate.
[23] The appellant did not deny that the respondents had a beneficial interest in the estate, but asserted that he had lived and worked on the farm all his life, and had made sacrifices while the respondents had left and made better lives overseas. He asserted that they had abandoned the farm and relied on him to farm it without any financial support. He added that he had looked after, educated, and maintained his three sisters until they were married.
[24] The appellant said that he understood that if he had not farmed the land, the Director of Lands could have cancelled the lease for breach. He asserted that sugar cane contracts are issued at the discretion of the Sugar Industry Tribunal, and exhibited a letter from the Tribunal dated 8 June 2016 advising that the land was very good sugar cane land which had produced over 200 tonnes in good years, such that the Tribunal would not subdivide the land for any other purpose.
[25] Valuations of the land were filed by the solicitors for the appellant ($65,000), and the solicitors acting for the respondents (with the exception of the 3rd and 4th respondents) ($230,000).
[26] Following a mention on 18 January 2023 Justice Mackie recorded as follows:
Counsels Submissions
Counsel for the [appellant] intimates there is a possibility of settlement subject to an alternative valuation and agreement of the price to be decided basing on both valuations, for his client to buy the property.
Counsel for the [respondents](Mr Charan) agrees for the proposal. Accordingly, move for directions of consent.
Orders
1. All the [respondents](except for the [3rd respondent]) are at liberty to submit an alternative valuation within 3 weeks.
2. The [appellant] shall be at liberty to buy the property at a price to be agreed on consideration of both valuation report.
Mention for consideration on 16/02/23 at 10.30 am
Order shall be sealed.
[Respondents] are at liberty to name the valuer.
[27] Pursuant to an order made by the Judge on 31 May 2023, a valuation was prepared by a valuer from the Ministry of Lands and Mineral resources ($70,000).
[28] At the hearing in the High Court, Mr Singh submitted for the appellant that the application for an order for sale was made pursuant to s 119(2) of the PLA under which, he submitted, the Court had a wide discretion to deal with land jointly owned by parties before the Court. He referred to authorities as to applications under s 119(2), confirming the discretion (in particular, the judgments in Thomas v Estate of Eliza Miller,[6] and Kumar v Kumar)[7].
[29] He submitted that the appellant had not stopped or prevented transfer of the land, or distribution of the estate, as was contended by counsel for the respondents. He submitted that the transfers had not been completed because not all the required documents (TINs for all respondents and probate for their mother’s estate) had been received. He referred to correspondence between the solicitors for the parties where the requirements were set out.
[30] Mr Charan submitted for the 1st, 2nd, 5th, 6th and 7th respondents that the appellant did not have standing to make an application for an order for sale: first, because he did not have a “moiety” (that is, a share of more than half) in the estate, and secondly, because he remained in contempt of the orders made on 15 July 2015 in the Probate proceeding. He submitted (at paragraph 15 of his written submissions) that the appellant was “trying all means not to register the TIN for the estate as he would be required to pay taxes on the lots he has sold under the estate” and (at paragraph 27) that the appellant had “not been truthful to the Court in terms of facts and material disclosure”.
[31] Mr Charan did not refer to Mr Singh’s submissions as to the application of s 119(2) of the PLA.
[32] The High Court record does not contain written submissions made in the High Court on behalf of the 4th defendant. In the audio transcript of the High Court hearing, Mr Siwan is recorded as saying that he relied on the submissions made by Mr Charan.
The High Court judgment
[33] The Judge set out the course of the Probate proceeding. He noted the appellant’s contention that he executed transfers of shares in 2017 but the transfers were not finalised: that while the estate had obtained the consent of Minister of Lands and Mineral Resources, and had a TIN, the respondents had failed to get TINs, which were required by the FRCS. He also noted that the respondents acknowledged that the estate had obtained a TIN, but contended that the appellant had failed to file tax returns and obtain a CGT certificate.
[34] The Judge referred to the submission for the respondents that they are entitled to their shares in the estate, they could obtain separate cane contracts for each lot if the land were subdivided, and could attend to rezoning of their shares in the land and subdivision. He also recorded their submission that the appellant’s application should be dismissed on the grounds of his continued contempt of the orders in the Probate proceeding, and delay.
[35] Having referred to the orders made for each party to file valuations, the Judge set out the “Orders” recorded at paragraph [26], above, including that “Applicant shall be at liberty to buy the property at a price to be agreed on consideration of both the valuation report”. (The bold type and underlining are as in the High Court judgment). In a later reference to this order, at paragraph 22 of the judgment, the Judge said that at no time had the appellant been given the right (or permitted by the Court) to purchase the land, except by way of a mutual agreement of the parties as to the quantum of the price.
[36] The Judge’s “Determination” is at paragraphs 13 to 25 of the judgment. He stated that the appellant had relied on “s 119” of the Property Law Act, then set out s 119(1) of that Act. He held (at paragraphs 14 and 15) that the appellant could not justify an order for sale of the land, as he did not have a “moiety” (half share) to support an application for partition.
[37] The Judge then said, at paragraph 19:
It has transpired through the Judgment in the HP06 of 2010 (the probate action in Suva) that the [appellant] hereof, as the Administrator if the estate of the late Surendra Prasad, has already partitioned and sold certain number of lots out of the subject matter land, for which he is said to be still accountable to the beneficiaries. The extent of the remaining land is said to be more than 18 acres in extent. The [appellant] has not adduced any ground why the land and premises cannot be partitioned, instead of going for a sale.
The Judge did not refer to any evidence adduced in support of the allegation that the appellant had “partitioned and sold certain number of lots out of the subject matter land”.
[38] The Judge went on to state that the appellant’s counsel had “switched his reliance” from s 119(1) to s 119(2) of the PLA. He held, at paragraph 21 of the judgment, that the appellant had not adduced any grounds to justify the sale of the land, as an alternative to partitioning among the beneficiaries. He said that from the first date fixed for the hearing of the matter, the appellant’s sole attention was on selling the land, but his grounds for doing so had already been addressed in the Probate Ruling.
[39] The Judge then referred to the Probate proceeding, and in particular the distribution judgment delivered on 15 July 2015 (in which the appellant was ordered to provide full and complete accounts of the estate), the contempt judgment dated 2 February 2017 (referred to by the Judge as made on 18 November 2016, which was in fact the date of hearing), and the sentencing judgment dated 21 March 2017. The Judge held, at paragraph 24, that while those judgments, rulings, and the sentence are in force and remain intact, and not varied or vacated, the Court could not make an order for sale. He added that unless the parties had mutually agreed for sale, and as to value, no order for sale could be made.
[40] At paragraph 25 of the judgment, the Judge found that the appellant’s application was an abuse of process, such that he deserved to be dealt with severely. He dismissed the originating summons, and ordered the appellant to pay costs totalling $3,000.
Appeal grounds
[41] Ten grounds of appeal were set out in the appellant’s Notice of Appeal. They may be grouped as follows:
[a] The Judge erred in his consideration of, and application of s 119(1) and (2) of the Property Law Act to, the appellant’s application for sale of the land, by:
[i] Holding that the appellant could not rely on s 119(1) and (2) of the Act to seek orders for sale of the land (Ground 1);
[ii] Holding that the appellant would require “one moiety” to apply for sale of the land, when the application before the Court could be dealt with under s 119(2) of the Act (Ground 2);
[iii] Finding that the appellant’s application was exclusively under s 119(1) and thus dealing with it as if it were an application for partition of the land (Ground 3); and
[iv] Not holding that the appellant had made the application in his personal capacity (Ground 7).
[b] The Judge erred in considering the effect of the consent order made on 18 January 2023, and the independent valuation obtained pursuant to a consent order made on 28 April 2023 (Grounds 4 and 5);
[c] The Judge erred in finding that the appellant had not adduced convincing evidence for the sale of the land (Ground 6);
[d] The Judge erred in finding that the appellant:
[i] Had not done all that was required to transfer the land to all beneficiaries (Ground 8); and that
[ii] The delay in transferring the land to the beneficiaries was the appellant’s error (Ground 9; and
[e] The Judge erred in finding that an order for sale could not be made when orders made in the Probate proceeding were intact (Ground 10).
The 1st, 2nd, 3rd and 7th grounds of appeal
[42] These grounds of appeal may be summarised as being that the High Court Judge failed to recognise the distinction between s 119(1) and 119(2) of the PLA), and failed to address the appellant’s application under s 119(2).
Submissions
[43] Mr Singh submitted that s 119(1) deals with applications for partition of land, and s 119(2) deals with applications for sale of land. He submitted that the two subsections cover different circumstances. He referred to the judgment of Justice Amaratunga in Anup Kumar v Ashok Kumar,[8] and submitted that the Court in that case held that a person with an interest in land may apply under s 119(2) for an order for sale of the land, the Court has broad discretion to grant orders for sale, and there is no requirement that the application must be preceded by an application for partition. He submitted that the High Court Judge in the present case was wrong to deal with the appellant’s application as having been made under s 119(1), wrong to conclude that the appellant could not seek an order for sale as his interest was less than a half share, and wrong in not holding that the appellant had made the application in his personal capacity.
[44] Mr Singh also referred this Court to the judgment of Justice Pathik in Thomas v Estate of Eliza Miller & Anor,[9] in which the distinction between applications under s 119(1), s 119(2), and s 119(3) was outlined and explained.
[45] Mr Charan relied on his submissions made in the High Court; that is, that the appellant did not have locus to apply for an order for sale because his interest in the land is less than a moiety. He also submitted that the appellant had not shown why the land could not be partitioned, and why it was in the best interest for the property to be sold. He did not make any submissions addressing the appellant’s submission that the application was made under s 119(2), not s 119(1).
[46] Mr Siwan, for the 4th respondent, also submitted that the appellant could not make any application for an order for sale, for the same reason: that is, his interest is less than a moiety. He further submitted that the appellant’s application was stated to be made pursuant to s 119 of the PLA, which encompasses all of its subsections (1), (2), and (3). He submitted that the appellant’s ground of appeal that the High Court Judge had found that his application was “exclusively under s 119(1) of the PLA” had no merit.
Discussion
[47] Subsections (1), (2) and (3) of s 119 of the Property Law Act provide:
119 In action for partition court may direct land to be sold
(1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates requests the court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale accordingly.
(2) The court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3) The court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale, and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
...
[48] In his judgment in the High Court in Thomas v Estate of Eliza Miller,[10] Justice Pathik rejected an argument by counsel for the defendant that an application for sale under s 119(2) of the PLA could not succeed, as it was not an action for partition. Having set out s 119, Pathik J said:[11]
I agree with [counsel for the plaintiff’s] submission that in s 119(1), (2) and (3) provision is made for three separate kinds of action which can be maintained in relation to any property. I reject the defendants’ contention that land can be only be sold on a court order if there is “an action for partition and not otherwise”, and therefore that an application under s 119(2) must be based on an “action for partition”. ..
The application here is under s 119(2) under which sale of land under the direction of the court may be ordered if such sale is considered by the court to “for the benefit of the parties interested ...
In any consideration of the issue in this case the court acts on evidence and decisions will have to be reached on the basis of the evidence. ...
[49] In his judgment in the High Court in Anup Kumar v Ashok Kumar,[12] Justice Amaratunga cited Thomas v Estate of Eliza Miller when rejecting the defendant’s contention that the plaintiff should first have sought partition of land under s 119(1) before seeking an order for sale under s 119(2). There, Amaratunga J said:[13]
... A party to joint tenancy as well as tenancy in common, can seek sale of property without resorting to partition in terms of [s 119(2) of the PLA]. There is a discretion given to the court to order sale of property. It is to be exercised in favour of sale if parties cannot amicably partition, and hardship to party seeking sale is more in comparison to other parties who are enjoying the property. ...
So, I reject the contention of Defendant that Plaintiff first needs to seek partition of land in terms of [s 119(1) of the PLA] before seeking sale of the property in terms of [s 119(2) of the PLA]. I agree with the position taken by Pathik J in Thomas.
[50] As held by Pathik J in Kumar v Kumar, subsections (1), (2), and (3) of s 119 of the PLA establish three separate pathways for an application for sale. Of those pathways, only s 119(1) relates to an application for partition, and it is available only to applicants having a share of one moiety or more in the land. Subsections (2) and (3) are not limited in that manner: an application may be made by “any party interested” in the land. Subsections (1), (2), and (3) must not be conflated. They are stand-alone provisions, not interdependent, and each separately capable of founding an application for an order for sale.
[51] In the present case, the High Court Judge stated (at paragraph 13 of the High Court judgment) that the appellant had “initially, relied on section 19 of the [PLA] for his reliefs, which reads as follows:”, then set out s 119(1). At paragraphs 14 and 15 of the judgment), the Judge said that in order for the appellant to obtain an order for sale “pursuant to the above section”, his interest in the land had to be one moiety, or more. Had the appellant’s application for an order for sale been made under s 119(1), the Judge would have been right to hold that an order could not be made, as his interest (when combined with that of the 3rd respondent) was only two shares out of 8.
[52] However, while the appellant’s originating application referred to “s 119” of the PLA, it was clear from the appellant’s counsel’s written and oral submissions in support of the application that the application was founded on s 119(2). The High Court Judge set out s 119(2) of the PLA in paragraph 21 of the judgment, then went on to find that the appellant had not adduced any convincing grounds to justify a sale of the land, as an alternative for partitioning it among the beneficiaries. While the Judge conflated subsections (1) and (2) (by setting out s 119(1) in paragraph 13 as if it were the entirety of s 119 and by presenting sale as an alternative to partition in paragraph 21), it cannot be said that he omitted altogether to address the appellant’s claim under s 119(2).
[53] The Judge’s implicit criticism of the appellant’s reliance on s 119(2) (in saying that the appellant’s counsel had “switched his reliance from s 119(1) of the PLA to s 119(2))” was misplaced. The appellant’s application referred only to “s 119”. There was no reference to s 119(1). If the appellant’s attention was in fact from the outset “solely” on selling the land (as the Judge found), then that required an application under s 119(2), which the appellant duly pursued.
[54] The respondents’ continued reliance on the argument that because he did not have a moiety, the appellant could not apply for an order for sale, was misconceived. Under s 119(2) the appellant could apply for an order for sale as a person having an interest in the land. Section 119(2) did not require him to have a moiety.
[55] The High Court Judge discussed (albeit briefly) both s 119(1) and (2). Given his discussion of s 119(2), it cannot be said that he found that the appellant’s application was “exclusively an application under s 119(1) thus dealing with the application as an application for partition” of the land. Further, it is not clear that the Judge erred by “not holding that the appellant had made the application for sale in his personal capacity”. No submissions were made to this Court that directly addressed that ground of appeal.
[56] The appellant has not established that the High Court Judge erred in the manner set out in the appellant’s 1st, 2nd, 3rd, and 7th grounds of appeal.
4th and 5th grounds of appeal
[57] The 4th ground of appeal is that the High Court Judge erred in “not considering a consent order made on 18 January 2023”. The 5th ground of appeal is that the Judge erred in his consideration of the valuation prepared by the Director of Lands for the purpose of ascertaining the true value of the land, when the parties had failed to agree on a valuation. The “consent order made on 18 January 2023” is set out in full in paragraph [26], above. For convenience, the relevant paragraphs are:
... Accordingly, move for directions of consent.
Orders
1. All the [respondents](except for the 3rd [respondent]) are at liberty to submit an alternative valuation within 3 weeks.
2. The [appellant] shall be at liberty to buy the property at a price to be agreed on consideration of both valuation report.
Submissions
[58] Mr Singh submitted that at a later mention on 22 March 2023 the respondents sought further time to review the Director of Land’s valuation, and were given 14 days, leading to a further order that:
In the event that [the respondents fail to submit their proposal, the [appellant’s] proposal will be accepted and acted upon.
[59] He submitted that a consent order was made on 18 January 2023 for the appellant to purchase the land and, as a consent order, the respondents could not opt out of it once they were made. Mr Singh referred to authorities as to setting aside consent orders,[14] and submitted that the respondents were restrained from doing an about turn on their consent.
[60] Mr Siwan submitted for the 4th respondent that the appellant’s submission ignored the fact that the order was that “the appellant shall be at liberty to buy the property at a price to be agreed on consideration of both reports”. He submitted that the Judge did not make it mandatory for the respondents to agree with the valuation.
Discussion
[61] It may be argued that although headed “Order”, the Judge gave a “direction” on 18 January 2023, which is not enforceable as an “order”. However, it is not necessary to consider that issue, as it is clear, as Mr Siwan submitted, that the appellant’s “liberty to buy the property” was at “a price to be agreed on consideration of both valuation reports”. The appellant was not given an absolute right to buy the property: it was conditional on the parties’ agreement as to the price. That agreement was not achieved.
[62] As stated at paragraph 22 of the High Court judgment:
At no stage, this Court had permitted the sale and/or given the right for the [appellant] to purchase, except by way of mutual agreement of the parties on the quantum of the price.
[63] The appellant has not established that the High Court Judge erred his consideration of the Orders made on 18 January 2023.
6th ground of appeal
[64] The 6th ground of appeal is that the High Court Judge erred in finding that the appellant had not adduced convincing evidence for the sale of the land.
Submissions
[65] Mr Singh submitted that the appellant had done so. He referred to the Appellant’s evidence in his affidavit in support of his application (sworn on 21 October 2021) and in his affidavit in response to the respondents’ opposition to the application (sworn on 14 July 2022). He submitted that the appellant’s evidence was very relevant to the exercise of the Court’s discretion under s 119(2) of the PLA, and ought to have been considered by the High Court Judge.
[66] Mr Siwan submitted that the appellant had failed to disclose the Probate proceeding, and the rulings and judgments delivered in that proceeding, had not outlined the factors as to which the Court was required to be satisfied before an order for sale could be made. He further submitted that the appellant had failed to disclose what he described as “the initial portion of land which has been eliminated from the beneficiaries’ entitlement” and therefore did not come to the Court with clean hands.
[67] Mr Charan’s submissions in the High Court did not address whether the appellant had adduced sufficient evidence to satisfy the Court that an order for sale should be made. As recorded earlier, his argument focussed on the fact that the appellant did not have a moiety, so had no standing to make an application. He did not make submissions on the point in this Court.
[68] In reply, Mr Singh referred to the appellant’s affidavit in support of his application for sale, in which he referred (at paragraph 5) to the Probate proceeding, and exhibited a copy of the Order made on 15 July 2015.
Discussion
[69] Having set out s 119(2) of the PLA, the High Court Judge went on (at paragraph 21), to find that the appellant:
... had not adduced any convincing ground to justify the sale of the land in question, as an alternative for partitioning it among the beneficiaries. From the first date fixed for the hearing of this matter, the sole attention of [the appellant] was to sell the land, relying on the, purported, grounds averred in paragraph 11 of the Affidavit in support. However, those grounds have already been addressed in the Ruling [in the Probate proceeding] ...
[70] It is apparent that the Judge held that the appellant’s application under s 119(2) should fail on the basis of the Judge’s finding that the grounds put forward by the appellant in support of the application “had already been addressed” in a Ruling in the Probate proceeding. This was a reference to the pay-out judgment delivered on 2 February 2017.[15] In that judgment the Judge said:
6. Secondly, no cogent reason has been given by [the appellant] for his proposed course of action. The alleged reason that the Director of Lands said that shares of the [1st and 2nd respondents] and all other beneficiaries may not be possible to be transferred since they are overseas citizens is unsubstantiated and untenable. Thirdly, the Sugar Industry Tribunal has only said that it would not subdivide the land for a purpose other than sugar cultivation. But the land has already been subdivided and sold by [the appellant].
[71] While the appellant’s stated reasons, at paragraph 11.1 to 11.6 of his affidavit in support of his application sworn on 27 October 2021, include references to the facts that the respondents live permanently outside Fiji, and that the land is used for cultivation of sugar cane, they were not the only reasons given. He also gave further reasons in paragraph 11.1 to 11.5 of his affidavit sworn on 14 July 2022, in reply to affidavits in opposition to his application. The appellant’s reasons may be summarised as follows:
[a] the land is on an agricultural state lease, was zoned agricultural, and needed to be farmed; rezoning and subdivision is not automatic and subject to survey and approval of rezoning plans, a process which could take a minimum of two years;
[b] the land is used for sugar cane farming, and the issuance of Cane Contracts is at the discretion of the Sugar Cane Tribunal – he said he had been advised by the Tribunal that the land should be retained for sugar cane cultivation;
[c] there was only one dwelling on the land, and he had lived in the dwelling, maintained it and provided for its upkeep and worked on the farm, for his entire life;
[d] he had looked after his father and mother at the property and had supported and maintained, and attended to the education and marriage of, his three sisters;
[e] all of the respondents had migrated and lived abroad, where they had made substantial lives, and had relied on him to farm the land without any financial support, while he had sacrificed his life to look after the farm.
[72] The High Court Judge erred in making the finding that the appellant’s grounds for seeking an order for sale had “already been addressed” in the Probate proceeding. While some of the grounds had been mentioned in the judgment delivered on 2 February 2017, many of them had not. Further, the Judge erred in failing to give any, or any adequate, consideration of the appellant’s reasons for applying for an order for sale. On consideration of the reasons put forward by the appellant, it is clear that the appellant gave sufficient cogent reasons to justify an order for sale, and that the Judge was wrong to conclude otherwise. The 6th ground of appeal is established.
8th and 9th grounds of appeal
[74] The 8th and 9th grounds of appeal are that the High Court Judge erred in finding that the appellant had not done all that was required to transfer the land to all beneficiaries, and in finding that the delay in the transfer of the land to the beneficiaries was the appellant’s error
Submissions
[73] Mr Singh acknowledged that orders for transfer were made in the Probate proceeding. However, he submitted that it needed to be considered that:
[a] the appellant had instructed solicitors, who drew up transfer documents and sent them to the respondents for execution;
[b] the appellant had sought and obtained consent to the transfers;
[c] the appellant had sought to lodge the transfers with the FRCS, which required TINs for each of the respondents, but the 3rd and 4th respondents had not provided their TINs to the appellant.
[d] the FRCS had issued a ruling dated 18 January 2022, setting out the requirements for CGT clearance; and
[e] the respondents had proffered the purported will of their late mother, but had not obtained an order for probate of the will.
[74] Mr Singh submitted that the High Court Judge did not consider the fact that transfers could not take place until all necessary papers were submitted. He advised the Court at the appeal hearing that it remains the case that neither TINs for the 3rd and 4th respondents, nor an order for probate of the parties’ late mother have been provided. He further submitted that the fact that the transfers were “stalled” reinforced the reasons for seeking an order for sale under s 119(2).
[75] Mr Siwan submitted that the Letters of Administration were issued on 9 September 1982 (at which time the Head Lease of the land was still in effect) such that the appellant knew that as administrator of the estate he had to act for the benefit of all beneficiaries, yet he did not take any steps to do so. He further submitted that while a new lease of the land was issued on 16 April 2009, it took the appellant some 8 years to understand that the land needed to be distributed. He added that the 4th respondent did not believe that the appellant had been honest in his dealings by way of transfer of the property, and had failed to provide details of a sale of approximately 12.8 acres. Accordingly, he submitted, the Judge did not err in his conclusion that the appellant had not done all that was required, and had been the cause of delay.
[76] Other than to refer to the orders made in the Probate proceeding, and to say that transfers were a simple matter, Mr Charan’s submissions to the High Court did not include any submissions relating to the appellant’s handling of the estate. He did not make any further submissions on this ground of appeal in this Court.
Discussion
[77] Mr Singh did not direct this Court to any specific finding that the appellant had not done all that was required to transfer the land or that the delay in transfer of the land was the appellant’s error. There is, therefore, no proper appeal on the 8th and 9th grounds. However, it is apparent on the evidence before the High Court that fault lies on both sides:
[a] After obtaining Letters of Administration the appellant did not attend to the administration of the estate in a timely manner. That is clear from the lapse of time after the grant in 1982, and Mr Singh did not contend otherwise. However, the appellant did, eventually, take steps to attend to distribution of the estate. The respondents were advised of the matters they had to attend to (such as obtaining TINs and probate of their mother’s will).
[b] Not all of the respondents attended to the matters they required to attend to: the 4th respondent did not execute the transfer or provide tax details, probate for the mother’s estate has not been provided, and not all respondents provided TINs.
[78] Mr Singh correctly described the transfer process as being “stalled”. However, as noted above, that is not something that requires determination by this Court.
The 10th ground of appeal
[79] At paragraph 23 of the High Court judgment the Judge listed the five judgments issued in the Probate proceeding, then held, at paragraph 24:
When the aforesaid Judgments, Rulings and the Sentence imposed on him are in force and remain intact, without being varied or vacated, this Court cannot make an order for the sale of the subject matter land as moved in the Originating Summons filed by the [appellant] on 17th November 2021. In view of the above, unless the parties have mutually agreed for the sale and on the value of the subject matter land, no order for sale can be made by this Court in contravention of the Judgment dated 15th July 2015 pronounced in the [Probate proceeding].
[80] There is some inconsistency, in that the second sentence of paragraph 24 is inconsistent with the first: in the first sentence, the Judge holds that an on the appellant’s application cannot be made as long as any of the judgments, ruling, or sentence are in force, while in the second sentence the Judge holds only that an order cannot be made “in contravention of” the judgment delivered on 15 July 2015 in the Probate proceeding (in which the appellant was ordered to provide accounts for the estate and distribute the estate to the beneficiaries).
[81] While the appellant’s 10th ground referred only to the judgment of 15 July 2015, the focus of submissions at the appeal hearing were more on the effect of the contempt orders made in 2017. The issue as to whether the appellant’s application was “in contravention of” the order for distribution made in the Probate proceeding can be dealt with reasonably briefly.
(1) Was the Judge wrong to find the appellant’s application contravened the judgment delivered on 15 July 2015 in the Probate proceeding?
Submissions
[82] Mr Singh submitted that the order to “distribute the estate” did not debar the appellant from making an application for an order for sale under s 119(2) of the PLA. He submitted that the order was to distribute estate, not to transfer the estate. He further submitted that the appellant had attempted to distribute the estate by way of transfers, but the process was stalled.
[83] Mr Singh also submitted that an application for an order for sale of land under s 119(2) of the PLA could be made and considered, at any time, by any person having an interest in the land. Accordingly, he submitted, the appellant (having an interest in the land as a beneficiary) had standing to make a “stand-alone” application under s 119(2).
[84] Mr Siwan submitted that the only way the estate could be distributed was by transferring the beneficiaries’ shares by way of the transfers, so that they received the shares in the estate they were entitled to.
Discussion
[85] There is nothing in the judgment delivered in the Probate proceeding on 15 July 2015 to the effect that the appellant was debarred from issuing any proceeding or making any application to a Court in respect of the land until the judgment was satisfied: that is (for present purposes) until such time as distribution of the estate was completed. Indeed, such a debarment could be contrary to public policy, as it would debar the appellant for making any application which might have assisted him in the process of distribution (such as, for example, might have been considered in order to require the respondents to provide necessary documentation). The application for an order for sale can also be seen in that light.
[86] The appellant was not prevented by way of the judgment of 15 July 2015 from making the application. The High Court Judge was wrong to find that his application for an order for sale was in contravention of the 15 July 2015 judgment. This ground of appeal is established.
(2) Was the Judge wrong to hold that the appellant could not apply for an order for sale while the contempt judgment remained in force?
Submissions
[87] Mr Singh submitted that the fine of $5,000 had been paid, the estate accounts had been prepared and disclosed to the best of the appellant’s ability, and the appellant had taken steps to distribute the estate by way of preparing transfers, and providing them to the respondents for execution. Accordingly, he submitted, the contempt had been purged, and there was no basis on which the High Court Judge could properly refuse to make an order for sale on the appellant’s application for an order for sale, on the grounds of continuing contempt.
[88] Mr Singh submitted that the 4th respondent had neither executed the transfer nor provided a TIN. He submitted that transfers in favour of the 1st, 2nd, 5th, 6th, and 7th respondents had been executed and were consented to by the Minister of Lands on 21 May 2017 (as evidenced by endorsement on the face of the transfer documents). He submitted that the respondents were made aware of what was required – both in respect of the respondents personally and in respect of their late mother – for the transfers to be completed and the estate to be distributed, but they had not all met all the requirements. He submitted that the respondents had not co-operated by providing relevant information, and were preventing the appellant from complying with the various orders in the Probate proceeding. In the circumstances, he submitted, they could not turn around claim that the appellant remained in contempt.
[89] Mr Singh further submitted that the appellant’s contempt, of any, had not impeded the course of justice, as the parties had agreed to consent orders in the proceeding.
[90] Both Mr Charan and Mr Siwan maintained their submissions that the appellant remained in contempt of the orders in the Probate proceeding, such that his application for orders for sale was properly dismissed by the High Court Judge. However, it was not suggested that probate for the mother’s estate had in fact been obtained, and it was acknowledged that the 4th respondent had not executed transfer documents.
Discussion
[91] It is not the law that if a person is in contempt of an order of the Court that is, of itself, a bar to the person being heard on a new complaint until the contempt is purged. Consideration must be given to whether the disobedience is such as to impede the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make.[16]
[92] In the present case, the High Court Judge did not give any consideration as to whether the appellant was in fact still in contempt, or whether the contempt, if any, had impeded the course of justice. Further, notwithstanding submissions for the respondents that the appellant remained in contempt of court in the Probate proceeding, there was evidence before the High Court that the contempt had been purged. Accordingly, the Judge’s finding that an order could not be made on the appellant’s application for an order for sale, by reason of his being in contempt, was an error of law.
[93] The appellant has established the 10th ground of appeal.
The allegation that the appellant had subdivided and sold off lots from the land.
[94] Finally, it is necessary to address an allegation that has permeated this proceeding from an early stage, and it was one of the grounds on which the High Court Judge made a “severe” costs award against the appellant. The allegation is that the appellant has subdivided the land and sold off lots, thereby depriving the respondents of their entitlement as beneficiaries.
[95] It appears from the High Court Record that the first mention of an allegation was in the judgment of Justice Brito-Mutunayagam in the Probate proceeding on 2 February 2017, in which he declined the appellant’s application to pay out beneficiaries at $5,000 each], where he said, at paragraph 6 :
But the land has already been subdivided and sold by [the appellant].
[96] In the his respondent’s affidavit in opposition to the appellant’s application for orders for sale, sworn on 7 March 2022 the 2nd respondent, said at paragraph 7(b):
The appellant] is trying by all means not to register the TIN for the estate as he would be required to pay taxes on the lots he has already sold under the estate.
[97] The 4th defendant said in an affidavit sworn on 31 March 2022 at paragraphs 8(d) and 9:
... [the appellant] ... must provide previous lease it had on the Subject Property and must outline the number of Lots it had sold”
[98] At the hearing of the appellant’s application in the High Court hearing on 7 July 2023, Mr Charan said:
But the land has already been subdivided and sold by the defendant [Appt]. So in that case the defendant who is the plaintiff in this case sold it off, subdivided and sold it off.
Mr Charan went on to say:
... what we are saying is that the [appellant] benefitted by selling that portion 170,000. So a portion minus from the original lease my Lord is worth 127,000.
In his written submissions to the High Court, dated 22 August 2023, at paragraph 15, Mr Charan said:
The [appellant]... is trying by all means not to register the TIN for the estate as he would be required to pay taxes on the lots he has sold under the estate”
[99] In the judgment under appeal, delivered by Justice Mackie on 20 September 2023, the High Court Judge said, at paragraph 19:
It has transpired through the Judgment in the HP06 of 2010 (the probate action in Suva) that the Plaintiff hereof, as the Administrator if the estate of the late Surendra Prasad, has already partitioned and sold certain number of lots out of the subject matter land, for which he is said to be still accountable to the beneficiaries. The extent of the remaining land is said to be more than 18 acres in extent. The plaintiff has not adduced any ground why the land and premises cannot be partitioned, instead of going for a sale.
[100] In his written submissions on appeal, Mr Siwan submitted that the appellant had not made proper disclosure of the extent of property lost from the estate. After referring to the fact that the lease held by Surendra Prasad was said to comprise 30.6 acres, but the lease granted to the appellant as administrator was said to comprise 7.3764 ha (approximately 18 acres) Mr Siwan said that:
The appellant has not advised structure in which the remainder lost portion of the subject property was elevated from the subject property and to whom it was transferred, and the sum gained by the appellant to which, no shares had been distributed. ...
Later in his submissions, Mr Siwan submitted that:
The 4th respondent did not believe the appellant was being honest in his dealings by way of transfer of the property and had failed to provide details of the sale of property (12.8 acres) by way of omission ...
[101] At the appeal hearing, counsel for the respondents were pressed to point to evidence as to such subdivision and sale. None was identified. Counsel referred to the original lease for the land, which was granted by the state to Surendra Prasad for 25 years as from 1 October 1957 (registered on 17 November 1958), where the land is described as comprising 30 acres, and to the lease granted by the state to the appellant (as administrator of his father’s estate) for 30 years as from 1 July 2006 (registered on 16 April 2009) where the land is described as comprising 7.3764 ha (approximately 18 acres). Both counsel for the respondents contended that the difference (12 acres) was “sold by the appellant”. They also relied on the fact that “[the appellant] has already subdivided and sold the land” is mentioned in two High Court judgments. They did not seek to produce, or identify, any evidence put before either of the High Court judges on which those findings were made.
[102] There was no dispute that this is state leasehold land. It follows that any alienation by way of subdivision and/or sale would require consent by the lessor, and there would be a memorial on the lease document recording such subdivision and/or sale. Yet there is no memorial on the original lease as to subdivision and/or sale, and there is no evidence in any of the affidavits filed for respondents other than a bald assertion as to “subdivision and sale”. As Mr Singh submitted, when the original lease expired, the land went back into the State’s hands and a new lease was granted to the appellant as administrator in 2006 (registered in 2009).
[103] Counsel for the respondents maintained their position that the appellant had subdivided and sold lots from the estate land, and deprived the respondents of their entitlement, despite not being able to identify any evidence to support the allegation.
[104] In the absence of any evidence having been identified or produced to the Court supporting the allegation (whether made by the respondents or their counsel, or stated in judgments) that the appellant had subdivided and sold off lots must be rejected as baseless. There was no proper basis on which the Judge could find that the appellant had “already partitioned and sold off certain number of lots out of the subject matter land”.
Disposition of the appeal
[105] It follows from this Court’s findings in respect of the appellant’s 6th and 10th grounds of appeal, and in relation to the Judge’s finding that the appellant had “partitioned and sold off certain number of lots out of the subject matter land” that the appeal must be allowed and an order made for the land to be sold, as sought by the appellant.
[106] This appeal was originally set down for hearing on 9 September 2024. Following discussion with counsel, the Court issued a Minute which it was hoped would assist the parties towards a practical, lasting, and amicable solution to this long-lasting dispute between siblings as to the proper administration of their father’s estate, under which they are all beneficiaries. The Court set out a series of steps and actions which it considered needed to be taken to achieve that solution. Regrettably, the parties could not (or did not) reach any agreement, and the appeal has now been heard and determined.
[107] In the circumstances, and being mindful of the desirability of bringing an end to the dispute and avoiding further costs and resort to Court proceedings, it is necessary to issue orders as to the sale of the land. These orders are set out below.
Clark, JA
[108] I have read the draft judgment of Honourable Andrews, JA and agree with her Ladyship’s reasoning, conclusions and orders.
Winter, JA
[109] I completely agree with the judgment of Andrews, JA.
ORDERS
(1) The appeal is allowed.
(2) The estate’s land (7.3764 ha, comprised in State Lease 717923) is to be sold, by way of the following process:
(3) In the event that the sale is not completed within eight months of the date of this judgment, it is to be sold by the Chief Registrar of the High Court, with the proceeds of sale (subject to the Chief Registrar’s costs and the costs of sale) to be distributed by the Chief Registrar to the beneficiaries in equal shares.
The respondents are ordered to pay costs to the appellant, summarily assessed at $5,000 to be paid to the appellant within 21 days of the date of this judgment.
Hon. Madam Justice Pamela Andrews
JUSTICE OF APPEAL
Hon. Madam Justice Karen Clark
JUSTICE OF APPEAL
Hon. Mr. Justice Gerard Winter
JUSTICE OF APPEAL
[1] Kumar v Kumar [2023] FJHC 695; HBC 2443.2021 (20 September 2023).
[2] Kumar v Kumar [2015] FJHC 517; HPP06.2010 (15 July 2015).
[3] Kumar v Kumar [2017] FJHC 53; HPP06.2010 (2 February 2017), at paragraphs 5 and 6.
[4] Kumar v Kumar [2017] FJHC 59; HPP06.2010 (2 February 2017).
[5] Kumar v Kumar [2018] FJCA 212; ABU56.2017 (30 November 2018).
[6] Thomas v Eliza Miller [1996] FJHC 168; HBC0136J.94S (12 December 1996).
[7] Kumar v Kumar [2021] FJHC 50; HBC398.2019 (28 January 2021).
[8] Kumar v Kumar [2021] FJHC 50; HBC398.2019 (28 January 2021).
[9] Thomas v Estate of Eliza Miller & Anor [1996] FJHC 168; HBC0136J.94S, (1996) 42 FLR 268 (12 December 1996).
[10] Fn 9, above.
[11] At 271, 273.
[12] Fn 8, above.
[13] At paragraphs 1and 8.
[14] Aubrey Law v Spencer Ah Sam [2018] FJHC 621; Civil Action 426.2007 (22 June 2018); Mohammed Rasul v Hazra Singh (1962) 8 FLR 140; and Tokalaulevu v Dantzler Inc [2015] FJHC 856; HBC78.2015 (6 November 2015).
[15] Kumar v Kumar, fn3, above.
[16] See Hadkinson v Hadkinson [1952] 2 All ER 567 (UKCA), at 574; and Nand v Home Finance Co Ltd [2023] FJCA 265; ABU37.2022 (30 November 2023), at [73]-[74].
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