IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CASE NUMBER: BC 28 OF 2011

BETWEEN:

CHANDU LAL PALA
PLAINTIFF/RESPONDENT

AND:

LOKESH PALA
DEFENDANT/APPLICANT

Appearances: Mr. P. Lomaloma for the Plaintiff/Respondent.
Mr. A. Sen for the Defendant/Applicant.

Date / Place of Judgment: Thursday 24 January, 2013 at Labasa.
Judgment of: The Hon. Justice Anjala Wati.

RULING

Catchwords:
 Enforceability of claim under oral contract for sale of land; Survival of cause of action to plaintiff's estate.

Legislation
Indemnity, Guarantee and Bailment Act Cap 232: s.59 (d).
The Family Law Act No. 18 of 2003: s.159.

1.	The defendant filed an application to have the injunction granted on 6 October 2011dissolved and the sum of $100,000 paid in Court released to him.

2.	On 6 October 2011 I granted an order by consent that the sale of the Crown Lease Dealing No. 39374 to R.B. Patel proceed and the sum of $100,000 representing 50% of the sales proceed be deposited in the Chief Registrar's interest bearing account.

3.	The order was granted on the plaintiff's application to restrain the sale and dismantling of the house.

4.	In his writ action, the plaintiff averred that he was initially the owner of the property which was mortgaged to the then Colonial National Bank in 2001. The defendant is his son. In 2007 he suffered a stroke which resulted in paralysis of the left side of his body and he was then forced to abandon his business as a watch repairer. In about 2007 the defendant and his wife approached him and offered to take over the loan repayments in return for the plaintiff transferring his 5 bedroom house worth over $200,000 to him.

5.	In or about January 2008, by a partly oral and partly written agreement, the plaintiff agreed to sell his property. Under the written agreement of 23 January 2008 the purchase price was agreed to be the balance of the loan account of the plaintiff. The plaintiff transferred the property to the defendant for a sum of $33,336.00 which was paid to the mortgagee upon transfer.

6.	The oral agreement was that in consideration of selling the property at a low price, the defendant was to let the plaintiff and his wife to remain at the said property until they died. The other term of the contract was that the defendant was not to sell the said property to any third party during the life of the plaintiff and his wife. It was also part of the oral agreement that the defendant was to look after the plaintiff and his wife and provide food and other necessities for them for the remainder of their life.

7.	The plaintiff's assertion is that the plaintiff would never have entered into the written agreement at one seventh of its value without the oral agreement.

8.	The plaintiff contends that the defendant breached the oral agreement. The defendant assaulted him in May 2011 when he was in shower. The defendant bit him viciously with a broom stick on the right of his forehead, the right ribs and the lateral aspect of his left leg. The defendant refused to buy any food or medicine for the plaintiff forcing the latter to file a Family Law application for maintenance in Labasa Family Court. Despite being served with the application for parental maintenance, the defendant gave the plaintiff ultimatum to leave the house by 8 June 2011 and if he did not, the defendant would beat the plaintiff again.

9.	Since that incident, the defendant has assaulted the plaintiff several times and has harassed the plaintiff by reducing the amount of food he gives to him and sometimes denying him food altogether. The plaintiff has averred that he had reported the matter to the police for 7 times but they had not taken any action. He thus approached the Legal Aid Commission for a domestic violence restraining order against the defendant.

10.	The plaintiff thus claimed as part of his substantive remedies, damages for breach of the agreement and for an order for maintenance until the determination of the Family Court application. An order for punitive damages and restitution was also sought. The plaintiff also sought an order for domestic violence restraining order and an order restraining the defendant from evicting him from the property or dealing with the property in any manner without the consent of the Court.

11.	The plaintiff died on 5 April 2012. The defendant states that now that the plaintiff has died, there is no cause of action against him and that the monies deposited in Court should be released to him.

12.	The application is opposed by one Ms. Indra Ben. She states that she is the daughter of the plaintiff and the defendant his younger brother. Her father died intestate. She has applied for the letters of administration to continue the action and she opposes the application for dissolution of the injunction orders.

13.	Mr. Sen argued that the only contract on which the sale took place was pursuant to a written contract and pursuant to that the estate does not have a claim against the defendant anymore. No action is maintainable. The proceeds held in Court are proceeds of the sale. There is no interest of any third party in it. There is no issue to be tried and if the estate does succeed, damages are an adequate remedy.

14.	Mr. Lomaloma argued that the defendant had been unjustly enriched when he breached the oral agreement and thus a substantive claim for restitution was also made. That is a claim in contract and it survives to the estate. The house was initially worth $200,000. The defendant has received $100,000 and $100,000 was deposited in Court. The plaintiff agreed for a sale on the condition that half the sale monies would be deposited in Court. That agreement is still binding and must not be disturbed. If the claim survives, the estate benefits. The daughter and the defendant will both get their shares. For the estate to be able to prosecute their claim, the proceeds must remain in Court.

15.	I have carefully perused the substantive reliefs sought by the plaintiff. Except for the claim for restitution, no other cause of action survives to the estate.

16.	In the action for restitution, the daughter is saying that as the beneficiary of the estate, she is entitled to part of the damages the plaintiff would have got under this head of damages.

17.	The claim for restitution is made pursuant to a contract for sale of land. The restitution is claimed under an oral agreement.

18.	Under s. 59(d) of the Indemnity, Guarantee and Bailment Act Cap. 232, no action upon any contract or sale of lands, or any interest in or concerning them, shall be brought, unless the agreement upon which such action to be 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.

19.	The written agreement pursuant to which the claim is brought makes no mention of the defendant's obligation to maintain the plaintiff and not to sell the property to any third party. 

20.	Every child has a duty to maintain his or her parent to the extent s/he is reasonable able to do so and if the parent is not able to look after him or herself adequately, otherwise a claim for parental maintenance is permissible under s.159 of the Family Law Act No. 18 of 2003. There is however no claim maintainable under the sale and purchase agreement presented to the Court and no oral agreement is enforceable under s.59 (d) of the Indemnity, Guarantee and Bailment Act.

21.	The plaintiff's daughter had not adduced in her evidence the basis for her or her father's claim for restitution for the Court to say that her claim is triable. There may be some evidence of a note or memorandum in writing for the claim of restitution but unfortunately none have been brought to my attention. If there is any claim for restitution, it is compensable in damages. There is no assertion from the plaintiff that the defendant will not be able to pay the said damages if so ordered.

22.	In my finding, the plaintiff's estate has not shown, on the affidavit evidence any legal basis for the injunction to continue. I thus order that the $100,000 deposited in Court be released to the defendant forthwith.

23.	The defendant shall have the defendant's costs in the cause.

24.	The writ action shall still take its normal course. At the end of the day the estate may be able to come up with some written evidence to enforce its right under the same for its claim for restitution.

Anjala Wati
Judge
24.01.2013
_______________________________

To:
1.	Mr. P. Lomaloma, counsel for the plaintiff.
2.	Mr. A. Sen, counsel for the defendant.
3.	File: Labasa HBC 28 of 2011.