IN THE HIIGH COURT OF FIHI
AT LAUTOKA
WESTERN DIVISION

HBC 86 of 2012

BETWEEN:

SAILESHNI GEETA RAM
of Varadoli, Ba, Domestic Duties.
PLAINTIFF

AND:

iTAUKEI LANDS TRUST BOARD
previously known as NATIVE LAND TRUST BOARD a body corporate constituted under the iTaukei Lands Trust Act whose registered office is at Rogorogoivuda House in Lautoka.
DEFENDANT

Appearances : Mr. Kamal Kumar for the Plaintiff
Mr. Lutumailagi for the Defendant

RULING
INTRODUCTION

1.	The plaintiff seeks summary judgement under Order 14 Rule 1 and 86 Rule 1 of the High Court Rules 1988. She has sworn by an affidavit in support. On 1 May 2009, she applied to iTLTB for (i) a residential lease over land known as Lomolomo Lot 1 DP 1418 in the Tikina of Nailaga, in the Province of Ba containing an area of 0.5893 hectares for a period of 99 years commencing 1 January 2012 ("1st Lot"),and, (ii) an agricultural lease over land known as Lomolomo Lot 1 DP 415 Tikina of Nailaga, Province of Ba containing 4.2795 hectares for a period of thirty years commencing 1 January 2012 ("2nd Lot").

2.	According to the plaintiff, iTLTB carried out investigations on 16 November 2011 and then offered her a residential lease over the 1st Lot for 99 years commencing 01 January 2012. A copy of the letter of offer by iTLTB is exhibited in her affidavit. On the same day, 16 November 2011, she accepted the said offer and signed a Residential Lease over the 1st Lot prepared and sent to her by iTLTB and also paid to iTLTB the sum of $8,283.58 made up as follows:

	Amount	Vat	Total	
Premium	$6,000-00	$135.00	$6, 135-00	
Rent (1 year)	$ 400-00		$ 400-00	
Lease Processing Fees	$1,000-00	$150-00	$1, 150-00	
Documentation Fees	$ 250-00	$ 37-50	$ 287-50	
Stamp Duty	$ 250-20		$ 250-20	
Registration Fees	$ 3-00	$ 0-38	$ 3-38	
Lease Admin Fee	$ 50-00	$ 7-50	$ 57-50	
TOTAL			$8,283-58	

3.	On the same day, 16 November 2011, iTLTB also offered her an agricultural lease over the 2nd Lot for a term of 30 years commencing from 01 January 2012. She has since paid to iTLTB the sum of $500-00 in stamping and registration fees. It was then agreed, according to the plaintiff, that the balance premium, rental for one year, lease administration fees and part of lease processing fee was to be paid from cane proceeds after the iTLTB issues her with agricultural lease. She executed an agricultural lease over the 2nd Lot, which document was prepared and sent to her by iTLTB. The plaintiff says she has performed her part of the contract for both leases but iTLTB is refusing to execute, stamp and register the leases.

OTHER COMPETING INTEREST OVER THE TWO LOTS

4.	The reason for iTLTB's inaction, it appears, is because of an ongoing wrangle between the plaintiff and one Ashok Balgovind. Bal Govind is one of two administrators over the estate of one Ram Dulari. The said estate was the predecessor in title over the two leases concerned. However, those leases have since expired. Balgovind has applied for an "extension" of the estate's leases over these Lots. There is in fact a building erected on the 1st Lot which was built by the estate. Mr. Kumar would submit that since the estate's title had expired, the iTLTB was free to issue the lease to anyone else, which it has in this case. Balgovind, from the tone of his letters exhibited in the affidavit of one Nemani Tamani, Estate Officer of iTLTB, asserts an interest based on an expectation that the estate's lease over the two Lots would be renewed. He explains that interest, not in terms of a statutory right for a renewal, but on a publicly-declared commitment by the government to renew all leases in the Western Division. Balgovind further states that his family has lived on the land for some 80 years or so and he has been cultivating the land for some 30 years or so. This submission hints at the suggestion that the estate is at least entitled to a right of first refusal.

5.	It appears from documentation exhibited in an affidavit in opposition of one Nemani Tamani, Estate Officer, iTLTB that Balgovind had applied for a renewal on 07 June 2010. 

6.	Tamani also exhibits a Notice to Vacate purportedly issued by the plaintiff against a Mr. Dharam Singh, the caretaker of the properties engaged by Balgovind, dated 17 November 2011. 

iTLTB's POSITION

7.	Tamani deposes that iTLTB's offer to the plaintiff was "subject to contract". He asserts that all that iTLTB did was inspect the land in question and the improvements erected thereon before making the "offer" to the plaintiff and that the plaintiff had made misrepresentations to iTLTB and:

"encourage[d] the Defendant to approve a lease of the land in question to her, in spite of the interests of the beneficiaries of the Estate of Ram Dulari".

8.	The misrepresentations alleged against the plaintiff are particularised as follows:

(i)	that she is still living with her first Sanjeev Kumar Balgovind when she had in fact married another man

(ii)	that she and her husband owned the residential dwelling erected on the land in question.

(iii)	that her husband is working overseas and supports her financially.

(iv)	that along with her husband, she had been managing the printing press business in the building adjoining the residential dwelling and that she closed the same in 2009.

(v)	that her husband has been cultivating the cane land for the past three years

(vi)	she confirmed that she brought Dharam Singh into the property as her caretaker.

(vii)	that one Ashok Balgovind being the previous tenant of the expired leasehold of the land in question and owner of the building erected on the same, is no longer interested in the said house and or renewal of his lease of the same

9.	Tamani further deposes in paragraph 5 of his affidavit that iTLTB had promptly offered to refund to the plaintiff all monies she had paid after Ashok Balgovind objected to the granting of a lease to the plaintiff on the ground that the estate owns the residential dwelling erected on the said land and that that the estate was interested in renewing its residential lease. iTLTB had decided to put on hold the processing of the plaintiff's agricultural lease because of the issues raised by Balgovind.

10.	Tamani deposes that he is the beneficiary of some legal advice to the effect that the plaintiff cannot continue to rely on a purported contractual relationship because whatever relationship there was, was forged on a misrepresentation by the plaintiff to mislead the iTLTB. 

SUBMISSIONS 

11.	Mr. Kumar argues that iTLTB is bound by contract to transfer the leasehold interest in question to the plaintiff and asks for specific performance. He argues inter-alia that the concept of "authenticated signature fiction" should apply in this case. 

12.	iTLTB is arguing that the plaintiff had made false representations to iTLTB regarding the land in question during interviews which led to the offer and to the sending of the Lease documents to be signed. The plaintiff vehemently denies these misrepresentations. 

THE LAW

13.	Order 14 Rule 1(1) states as follows:

1.-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgement against that defendant.

14.	The Order 14 summary judgment procedure is available to any Plaintiff who desires a quick judgment on his or her claim where there is no defence to a claim, or, if a defence is raised, it either fails to set up a bona fide defence or discloses no triable issues and will merely have the effect of delaying a judgement in favour of the Plaintiff. The Court's task is to determine whether there ought to be a trial.

15.	Order 86 Rule 1(1)(a) states as follows:

In any action begun by writ indorsed with a claim –

(a)	for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or change of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages......

the plaintiff may, on the ground that the defendant has no defence to the action, apply to the court for judgement.

16.	Order 86 Rule 3 states as follows:

3. - Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action. 

17.	To succeed in obtaining a summary judgement, whether under Order 14 or under Order 86, the plaintiff must be able to show that the defendant has no defence to the action. 

18.	In other words, the Plaintiff must prove each claim clearly and to satisfy the Court that the Defendant has no defence which has any realistic prospect of success (see Thomas J in Hibiscus Shopping Town Pty Ltd -v- Woolworths Ltd [1993] FLR 106 at 109; Magan Lal Brothers Ltd. –v- L. B. Masters & Company Civil Appeal No: 31/84; Halsbury's Laws of England (4th Edition) volume 37 para 413 – 415, notes 4).

19.	The defendant, under both Rules, may yet avoid a summary judgement if it is able to convince the court that there is an issue to be tried or that there ought for some other reason, be a trial of the action.

ANALYSIS

20.	The concept of authenticated signature fiction applies in limited circumstances to adjust the signing element in the writing requirement of the statute of frauds provisions in a sale and purchase agreement of land. In Fiji, section 59 of the Indemnity, Guarantee and Bailment Act (Cap 232) is such a provision. 

21.	The concept "is applied where one party, either personally or by his agent, ....induce[s] the other party to sign an agreement, or a note or memorandum thereof, by representing that he regards himself as bound by it even though neither he nor his agent has signed it" (see Bala v Dewan [1998] FJCA 54; Abu0007u.98s (27 November 1998). 

22.	Where the owner (or his agent) of a piece of land has induced another to sign an agreement, which agreement records the owner's name, and which agreement was prepared by the owner (or his agent) and sent to the other party by the owner (or his agent), the concept has been applied without hesitation by the courts to hold that the owner, thereby, intends to be bound by the document - though the owner (or his agent) has not signed the document (see Northern Projects Fiji Limited v Vision Properties Limited, Civil Action No. 270 of 2010; Sturt v McInnes [1974] 1 NZLR 729 at 732). 

23.	The justification for the concept is that it prevents the statute of frauds provisions and legislation derived from it from being used (by the owner or his agent) as an instrument of injustice. 

24.	I accept that prima facie, the facts as presented would appear to be ideal for the application of the concept. 

25.	However, logically, this concept must be subject to the normal vitiating elements that would make a contract void or voidable such as mistake, duress, misrepresentation, undue influence and illegality. 

26.	Accordingly, I would hesitate to grant summary judgement in this case on the basis of the concept alone, considering (i) the allegations of misrepresentation by iTLTB – and particularly - (ii) in light of the competing interest of the Ram Dulari estate. 

27.	In the same vein, these vitiating factors would apply against the granting of the remedy of specific performance if they are found in any given set of facts.

28.	It is trite that the effect of a misrepresentation renders a contract voidable, giving the innocent party a right to rescind the contract and/or claim for damages. 

29.	Generally, a misrepresentation is a false statement of material fact by one party to another, which, whilst not being a term of the contract, induces the other party to enter the contract. The misrepresentation should be such as would have induced a reasonable person to enter into a contract. In addition, it should, in fact, have been relied upon by the innocent party. A misrepresentation will still be considered as an inducement even if the complainant had been given an opportunity to discover the truth (see Pearson v Dublin Corp [1907] AC 351) and even if the representation concerned has not been the only inducing factor (see Eddington v Fitzmaurice (1885) 29 Ch D 459). 

30.	In this case, the submissions filed do not address the question as to whether or not the misrepresentations alleged by iTLTB against the plaintiff are, assuming they are proved, sustainable as to warrant a rescission of the agreement by iTLTB. While I would express here a qualified view that the allegations seem weak and designed merely to camouflage what appears to me to be an operative underlying oversight on the part of iTLTB, I would rather postpone this issue for trial. Fraud (and usually misrepresentation), after all, are triable issues.

31.	There is, clearly, in this case, a prior competing claim over the same Lots. The submissions filed by both counsel do not squarely address the issue of whether or not the estate (of Ram Dulari's) competing interest over the Lots has merit. 

32.	From documentation filed, it appears to me that iTLTB is already inclined towards granting an extension to the estate. 

33.	After considering all, I am of the view that it would be rather presumptive of this court to grant summary judgement on the facts as presented when there is clearly another stakeholder involved who is not even a party to this action and/or to these proceedings. I also refuse to grant summary judgement on this basis. Accordingly, I decline to grant summary judgement. Costs in the cause. In addition, I order, pursuant to Order 15 Rule 6(2)(b), that the estate of Ram Dulari be added as a defendant. The plaintiff is to amend the writ of summons accordingly and to serve the estate in 7 days. This case is adjourned to Tuesday 21 May 2013 at 8.30 a.m. for mention.

..............................
Master Tuilevuka
02 April 2013.