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Latif v Khan [2005] FJHC 276; HBC0028.1996 (2 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0028 OF 1996L

BETWEEN:

ABDUL LATIF f/n Abdul Sattar
Plaintiff

AND:

AJMAL GULAB KHAN f/n Gulab Khan
Defendant

Plaintiff in Person
Mr. H.A. Shah for the defendant

Date of Hearing: 21 November 2005
Date of Judgment: 2 December 2005

JUDGMENT

The plaintiff by Writ of Summons filed on the 2^nd February 1996 claims damages against the defendant alleging professional negligence.

The defendant was at all relevant times a barrister and solicitor carrying on practice at Nadi under the name of Khan & Associates.

The plaintiff on or about the 23^rd April 1992 attended upon the defendant’s office together with Jalina Bi and her husband, Mohammed Ilyas and gave instructions for the preparation of a Deed to reflect the proposed purchase by the plaintiff from Jalina Bi of approximately 40 acres of land being Lot 3 on Plan N1668 Momi Subdivision in the district of Nadroga & Navosa together with the benefit of Sugar Cane Contract No. 4211 Yako Sector.

It is not in dispute that the subject land was Crown land and that the consent of the Director was required as a pre-requisite to any transfer.

On the 23^rd April 1992 the plaintiff paid the defendant the sum of $100.00 which on Exhibit P-1 is described as “fees and disbursements on Deed (re Jalina Bi)”. On that same date the plaintiff paid to Jalina Bi the sum of $6,000.00 as is evidenced by Receipt No. 7043 (Exhibit P-2). The Deed was executed on the 25^th April 1992 by Jalina Bi and the plaintiff. The execution of the Deed was witnessed by the defendant.

It is not in dispute that the instructions for the preparation of the Deed were given to the defendant’s clerk, Mohammed Saheed. The Deed provides for a purchase price of $35,000.00 and further that the land is to become the property of the lessee (plaintiff) upon payment of the sum of $10,000.00. Clause 10 of the Deed provides that the sum of $6,000.00 is to be paid on the date of execution of the Deed and that upon payment of the total sum of $10,000.00 the lessor shall transfer the land to the plaintiff.

Clause 12 of the Deed provides that the parties are to take all necessary action to obtain the consent required of authorities to the proposed arrangement.

The evidence of Mohammed Saheed is that the Deed was drafted to reflect the arrangement that had been agreed between the parties. He further gives evidence that he explained the Deed clause by clause to the parties including the plaintiff and was then present when Mr. Khan explained the Deed to the parties prior to its execution on the 25^th April 1992. He says that the Deed was drafted to reflect that any necessary consent was to be obtained by the parties. The only involvement of the defendant was to draft the Deed and facilitate its execution. This is reflected in the payment made which was in the sum of $100.00.

The defendant gives evidence and says that he explained the Deed in detail to the parties prior to its execution and says that if he were to have acted on the sale and purchase of the property that the costs would be in the range of $2,000.00 to $3,000.00 and he confirms that the instructions received were merely for the preparation of a Deed reflecting the agreement reached between the parties and nothing more.

Mohammed Ilyas the husband of Jalina Bi gives evidence that he held the power of attorney for his wife and confirmed the terms of the arrangement that on the payment of $10,000.00 the property was to be transferred to the defendant. He relevantly says that the sum of $6,000.00 was paid to his wife on the 23^rd April 1992 but the remaining $4,000.00 was never paid until such time as he caused the defendant, his wife and himself to again attend upon the offices of the defendant in 1993. He says that on that day the 3 of them attended upon Hari Ram and it was ultimately agreed that the sum of $4,000.00 would be paid into the solicitors trust account that day and a further agreement would be entered into.

Hari Ram gives evidence of having spent about one hour with the parties in his office and having had them reach agreement that the sum of $4,000.00 would be paid into the defendant’s trust account that day and that a further agreement would be entered into to enable the matter to proceed to finality. He produced a draft Deed dated June 1993 which was never executed (Exhibit D-2). This Deed provided for the property to be transferred to the plaintiff upon the consent to transfer being obtained from the Director of Lands and upon approval of the mortgagee bank. The agreement further provided that the defendant was to be on the property as a tenant pending payment and the required consents being obtained. The Deed provided for the terms of that occupation.

As I have said that document was never executed by the plaintiff.

The plaintiff in his evidence acknowledges the payment of the initial sum of $6,000.00 and confirms that the remaining $4,000.00 to make up a total of $10,000.00 was paid into the trust account of the defendant on the 7^th June 1993. The plaintiff however says that he was not given any advice by the defendant and that the Deed was not read to him nor was it explained to him by the defendant or anyone in his employ. He says that he was merely asked to execute the document where indicated and that the defendant had the obligation to obtain any necessary consent to facilitate the transfer being effected. He also says that he was not advised that the property was subject to a mortgage to the Bank of Baroda and that it was as a result of the negligence of the defendant that he lost the ability to purchase the property and he lost the effort he put into cane production while occupying the property.

It is not disputed that the $4,000.00 originally deposited into the trust account of the defendant and subsequently transferred to the trust account of Sir Vijay Singh was ultimately released to the plaintiff after deduction of the balance of Sir Vijay Singh & Co.’s costs. The initial amount of $6,000.00 was also refunded by the vendor to the plaintiff.

I accept the evidence given by the defendant and on his behalf. I find that the fact that the defendant was engaged to do no more than drafted and cause to be executed a Deed reflecting the terms of an agreement reached between the parties in April 1992 and was again engaged in June 1993 to resolve a dispute between the vendor and purchaser and to draft a further Deed reflecting the resolution of that dispute. I do not accept the plaintiff’s version that for the sum of $100.00 the defendant was engaged to carryout the totality of the transfer of the subject land from the vendor to him nor do I accept that there was any obligation on the defendant to obtain any consents either from the Director of Lands or the mortgagee bank.

It follows therefore that I find for the defendant and the Orders of the Court will therefore be:

1. Verdict and judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs as agreed or assessed.

JOHN CONNORS
JUDGE

At Lautoka
2 December 2005