Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Tuisawau v Karim [1996] FJHC 92; Hbc0595j.91s (31 January 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 595 OF 1991

Between:

KINIJIOJI TUISAWAU
Plaintiff

- and -

ABRAHAM KARIM
s/o Abdul Karim and
KAMRAL NISHA KARIM
d/o Abdul Satar Khan
Defendants

Mr. S. Parshotam for the Plaintiff
Mr. Raman Singh for the 1st defendant
Mr. Suresh Maharaj for the 2nd defendant

JUDGMENT

The Plaintiff (P) has issued a Writ of Summons against the Defendants (Ds) in which he claims specific performance of an alleged agreement to sell to him certain property comprised and described in Certificate of Title No. 9529 located at 31 Amputch Street, Tamavua on which is erected a dwelling house (hereafter referred to "the said property") owned by Ds at the price of $55,000 (Fifty-five thousand dollars). The Plaintiff is alternatively claiming damages for breach of contract.

The issues for Court's determination are as follows as set out in the Minutes of the Pre-trial Conference held on 28 October 1994:

1. Do the letters passing between the Plaintiff and the Defendants, variously dated from 22 January 1991 to 18 June 1991 amount to a contract for Sale and Purchase of the Defendants' freehold land known as Certificate of Title No. 9529 and located at 31 Amputch Street, Tamavua, Suva, Fiji?
   

If so, then:

(i) Was the consideration for the sale and purchase of the said land $55,000.00, or $75,000.00?

(ii) What were the other essential terms of the contract (payment, settlement, possession etc)?

(iii) Was this contract breached by either the Plaintiff or the Defendants? If so, what was the breach?

(iv) If the Defendants were in breach, then is the Plaintiff entitled to an Order for Specific Performance for the sale by the Defendants to the Plaintiff of this land.

(v) If the Plaintiff is not entitled to an Order for Specific Performance, then is he entitled to any damages and if so how much?

2. If no contract is found to have been formed, then:
   

(i) Has the Plaintiff any rights to remain on the land or should an Order for vacant possession be made against him?

If an Order for vacant possession is to be made against the Plaintiff, then what are the terms of such an Order and, in particular, as to when the Plaintiff is to vacate?

(ii) Are the Defendants entitled to any damages for the period of occupation by the Plaintiff and if so, how much?

The Plaintiff's claim

In support of his claim the Plaintiff gave evidence. He called his solicitor Mr. Satish Parshotam to testify on his behalf.

The Plaintiff contends that various letters passing between him and the D1 from 22 January 1991 to 18 June 1991 constituted a contract to sell the said property to him.

He says that notwithstanding repeated requests by the Plaintiff, the Ds have neglected and refused to take any steps towards the completion of the said alleged agreement.

In his evidence he stated that he was required by Mr. H.A. Shah as the agent of the Ds who were away overseas to be caretaker of the said property in 1986. He put his son-in-law there but he himself moved in there in 1990. He said that he spent more than $5900 in maintaining the property. He had not spoken to D1 until he came to Fiji in 1991 when P agreed to sell the property for $55000.00 and signed a note (document I) dated 22 January 1991 to that effect. It was as follows:-

"CONSENT FOR SALE

I, DR ABRAHAM KARIM OF LATROBE, TASMANIA HEREBY GIVE CONSENT FOR THE SALE OF FREEHOLD LAND AND DWELLING HOUSE SITUATED AT 31 AMPUTCH STREET, TAMAVUA.

THE AGREED SALE PRICE FOR THE ABOVE PROPERTY IS $F55,000.00, AND THE PURCHASER IS MR KINIJOJI TUISAWAU AND FAMILY.

Abraham Karim

22/1/91"

Acting on the said document the Plaintiff had on 10 July 1991 gone about arranging a loan of $44,000 from CMLA. Later by letter dated 29 April 1991 the Plaintiff wanted the purchase price reduced to $42,000 being the valuation amount and $12000 was to come from Fiji National Provident Fund.

In June 1991 the Plaintiff took the defendants to Mr. Satish Parshotam's office to execute the necessary documents of transfer. Since D1 wanted $75,000 the intended transaction fell through and the parties left the office. The plaintiff then lodged a caveat. Subsequently the Plaintiff says that he received a letter dated 7 May 1991 from the defendant (D1) asking $75000.00 for the said property.

The Plaintiff admitted that he and his wife had a Receiving Order made against them in 1992. He agreed he owed $45,000 to Fiji Development Bank. This fact was not known to Mr. Parshotam before the parties went to his office nor did he ask the Plaintiff about this. In my view Mr. Parshotam's evidence does not enhance the Plaintiff's case and as far as the Receiving Order is concerned he knew nothing about it. He acted as solicitor for the Plaintiff and not for the Defendants.

Because counsel for the Plaintiff objected saying it is a question of law, Mr. Parshotam did not answer the question by Mr. Maharaj that "any contract is to be binding has to be by both parties?" as both are registered proprietors.

The Defendants' claim

The defendant (D1) said that he gave the Plaintiff the first choice of purchasing the said property when D1 was in Fiji in January 1991 for the sum of $55,000. He said that it was on condition that he buys it within that month as he does not want to come back to Fiji to finalize the deal. On 22 January 1991 when D1 met him again, P said to him that CMLA with which he is arranging a loan wants something in writing to show that he is buying a house so D1 wrote document I (supra). P promised to meet D1 outside Regal Theatre but he failed to turn up; D1 looked for him but could not find him so D1 and D2 left for their home in Tasmania and regarded document I as having 'lapsed'. Before leaving he arranged with his brother-in-law to sell the said property to someone else. After that there was some further correspondence between P and D1. The D1 had informed P that the price now was $75,000 and yet without telling Mr. S. Parshotam he made arrangement for D1 & D2 to meet at his lawyer's office. All the time the D1 thought that he was going to get $75,000 whereas P was still proceeding on the basis of $55,000. The whole dealing fell through when D1 & D2 came to know the erroneous basis on which they were required to execute the documents which Mr. Parshotam prepared on P's instructions.

The determination of the issues

The decision in this case rests upon findings of fact.

I have carefully analysed all the evidence that has been adduced in this case.

I find as fact that the Plaintiff came on to the property in 1990 after arrangement was made with the Plaintiff by Mr. Shah as agent of the defendants to look after it from 1986; but before 1990 his son-in-law was occupying the property with Plaintiff's permission.

In this case, although the defendants (who are husband and wife) are the registered proprietors of the said property, subject to what I say hereafter, all the dealings by the plaintiff were with the first defendant.

On issue '1' referred to hereabove I find as fact that the note dated 22 January 1991 (document I) was an offer by D1 to sell the property for $55000 to the Plaintiff and his wife. On this offer, the Plaintiff was arranging for a loan from CMLA. I find as fact that since the Plaintiff could not complete the transaction within the month of January while the defendants were still in Fiji the offer lapsed. The said offer I find was just for that month as the Plaintiff had assured D1 that loan was approved and the settlement could be completed by end of January 1991. The P was made aware by D1 that he was in Fiji just for that month and would be leaving by the end of January. The P was unable to complete the transaction and did not even meet D1 before he left. Hence D1 believed that the offer had lapsed without acceptance. However on 29 April, 1991 (exhibit 4) the P makes a counter offer asking D1 to agree to sell for $42,000 which was the valuation figure to which the D1 did not agree.

Mr. Maharaj for the second defendant raised a point in his written submissions that section 59(d) of the INDEMNITY GUARANTEE AND BAILMENT ACT CAP. 232 which provides as follows has not been complied with:

"No action shall be brought:

(a) ........

(b) ........

(c) ........

(d) upon any contract or sale of lands; tenements or herethaments or any interest in or concerning them; or

(e) unless the agreement upon which such action is to brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised."

I find no merit in this argument put forward by Mr. Maharaj. I find on the facts that D2 was fully aware of the discussion between D1 and the Plaintiff in regard to the sale of the property and by her conduct I find that there was tacit approval for what D1 was doing in regard to the sale. This is evident from the fact that both D1 & D2 went to Mr. Parshotam's office to finalize the deal.

I agree with Mr. R. Singh that there was a rejection of D1's offer to sell for $55000. The subsequent correspondence do not in any way bring about agreement as to the purchase price; P later agrees to buy for $55,000 whereas D1 wants $75,000. In these circumstances when so much uncertainty surrounds the issue of price I find that there never was a binding contract between the parties.

In fact on all the evidence before me I find as fact that D1 wanted to sell his property for $75000 and that is why both the defendants travelled from Tasmania to complete the transaction. I regard D1 as a witness of truth and I accept his evidence in toto in regard to the material particulars. I have noticed the demeanour of P and D1 in the witness box and was most impressed with the doctor's (D1's) evidence. It is abundantly clear from the evidence that after having been let into possession in 1990 the Plaintiff, a man of straw, and with a Receiving Order for a debt of over $45000 against him and his wife, P is attempting to show to Court that he is in a position to buy the property for $55000 when in fact he is in no position to do so. In fact even CMLA by its letter of 13 March 1991 suggested to Plaintiff to reconsider purchasing as asking price is too high compared to the valuation of $42000. In fact P relies so much on CMLA's letter of 28 February 1995 without realizing that it is a conditional approval as evident from the statement that this approval was gained in August 1991 and still stands on the basis that "no other conditions have changed". The Plaintiff's and his wife's situation changed in 1992 when Receiving Orders were made against them for such a large amount. They are under the control of the Official Receiver in relation to their dealings and it appears that CMLA is not aware of this position for I am sure no lender will approve of a loan in such circumstances.

All in all, on the evidence before me I find that there was no binding contract between the parties. They could not agree on the purchase price which was the most essential element in the transaction. Even assuming that the Defendant (D1) was to be pressed down to $55,000, there was no concrete evidence to show that that sum was available for at one stage in the negotiation the Plaintiff was struggling to find the said sum and he asked for the sale price to be reduced to $42,000 (being the valuation amount). Then there was the Receiving Order against the Plaintiff and his wife staring them in their face but despite that they hope to get a loan of $55,000 when $45,000 under the Receiving Order is owed to the Fiji Development Bank. The Deputy Official Receiver in his letter of 28 February 1995 (document 15) would have taken the award, if any, made in this case for he said that "any amount made in favour of the said debtor will be for the Receiver's benefit to satisfy all the creditors together with our fees and costs". Who in his proper senses would advance money in such circumstances?

I find that in all the circumstances of this case, although the Plaintiff was initially asked to be "caretaker" of the said property by Mr. Shah, but when it came to purchasing it in 1991 and subsequently, the Plaintiff was in no position to do so and he made the Defendants run from pillar to post with no fruitful result in the end, that is, the whole transaction fell through when the parties gathered in Mr. Satish Parshotam's office.

For the above reasons the Plaintiff's claim for specific performance fails.

As for the Defendants' counter claim for rent and mesne profits, having found as above, on the evidence I am satisfied that they are entitled to this claim.

I find that by letter dated 7 May 1991 they notified the Plaintiff that if he continued to stay in the house then he would be liable to pay rent at the rate of $600.00 (six hundred dollars) per month with effect from June 1991. The Plaintiff failed to vacate. The Defendants are therefore entitled to rent and mesne profits from 1st June 1991 to date of judgment at the rate of $600 per month i.e. 1st June 1991 to January 1996 = $33,600. The Plaintiff has alleged that he carried out certain maintenance work on the said property. I find that in this regard whatever work he did, it was done on his own volition and the defendants cannot be made liable to pay for it, as among other things, he had no right or authority to do the work he alleges he did.

In the outcome for these reasons the Plaintiff fails in this action which is dismissed with costs to be taxed if not agreed. On the counterclaim the defendants succeed in their claim and it is ordered that the Plaintiff do pay to the defendants the sum of $600.00 being rent for June 1991 and the sum of $33,000.00 being mesne profits from 1st July 1991 to date of this judgment (31.1.96) i.e. 55 months at $600 per month in respect of the said property making a total of $33,600; judgment is entered accordingly on the counterclaim in the sum of $33,600 with costs against the Plaintiff to be taxed if not agreed. It is further ordered that the Plaintiff give immediate vacant possession of the said property to the Defendants but execution is stayed for 28 days.

D. Pathik
JUDGE

At Suva
31 January 1996

HBC0595J.91S