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Narayan v Prasad [2014] FJHC 59; Civil Action 31.13 (14 February 2014)

IN THE HIGH COURT Of FIJI AT LABASA
NORTHERN DIVISION
CIVIL JURISDICTION

Civil Action No: 31/13

BETWEEN:

RAM NARAYAN of Naqaraniqoli, Dreketi, Macuata, Labourer
PLAINTIFF

AND:

CHANDRIKA PRASAD of Naqaraniqoli, Dreketi, Macuata, Farmer.
DEFENDANT

Appearances: Mr. Sharma of Samusamuvodre Sharma Lawyers for the
Plaintiff
No Appearances for the Defendant.

RULING

Introduction

This matter arose from a breach of contract for a sale of land entered into between the Plaintiff as the purchaser and the defendant as the seller or vendor of a piece of land situated at Naqaraniqoli in Dreketi Macuata. The Plaintiff's daughter is married the Defendant's son and when the Plaintiff's lease expired in the year 2000 the Defendant provided him with a portion of land to stay and to build a house. In 2007 the parties entered into an agreement for the Plaintiff to purchase the portion of land on which he had built his house for a consideration of $1,500:00. A deposit of $1000:00 was then paid and the balance was paid into the Defendant's Solicitor's Trust Account. The Defendant thereafter refused to execute the documents necessary to effect the transfer and in 2011 took action against the Plaintiff under a Section 169 application under the Land Transfer Act to evict the Plaintiff. This application failed and was struck out with no order as to costs. This action is to compel the Defendant to perform on the contract.

The Claim

The statement of claim states that the Defendant is the registered owner of a portion of land described in the Certificate of Title Number 23998 known as Naqaraniqoli (part of) being Lots 11 and 23 on Deposited Plan Number 5699 in Dreketi Macuata and with a total area of 4.1648 hectares. That by virtue of an agreement dated 30th of July 2007 the Defendant agreed to sell to the Plaintiff three chains (2500 Sq. Meters) of the said land for a consideration of $1500:00. That the said agreement provided that the Plaintiff would engage his own surveyors and obtain for himself a registered plan for his three chains and that the Defendant would thereafter transfer the said portion to the Plaintiff. That the Defendant has failed and or refused to abide by the terms of the agreement and has threatened to remove the Plaintiff from the said land. That the Plaintiff by a prior agreement had allowed the Plaintiff to reside on the said land and he has continued to do so for the last thirteen years. That the Defendant through his solicitors has previously attempted to eject the Plaintiff from the land through a civil action which had failed and the application struck out. That the Plaintiff prays for the following reliefs:-

1. Specific performance of the said agreement.
   
2. An injunction restraining the Defendant either by him or through his servants or agent from entering into any part of the land occupied by the Plaintiff as his residential dwelling and any part of the land occupied by the Plaintiff as his vegetable plantation.
   
3. Damages for breach of contract in lieu or in addition to specific performance.
   
4. An injunction restraining the defendant either through his servant, agent or howsoever from transferring, charging or disposing the said Certificate of Title No. 23998.
   
5. Order of specific performance directing the defendant to execute the transfer of three (3) chains (2500 sq meters) of C.T. No. 23998.
   
6. General Damages
   
7. Interests.
   

The said writ was issued on the 18 September 2013 and served on the defendant on the 5th October 2013. When the Defendant did not file his defence within the prescribed time the Plaintiff obtained Default Judgement with damages to be assed. A Summons for assessment returnable on the 25th of November 2013 was then served on the Defendant. On the said date the Defendant appeared in Court and the Master was informed by the counsel for the Plaintiff that matter could be mediated, it was then stood down for mediation. The matter unfortunately could not be mediated and the Defendant was advised by the Court to seek legal representation and the matter adjourned to the 29 November to fix a date for assessment of damages. On the 29th November the Defendant again appeared in Court and stated that he does not have a lawyer and the matter was set down for hearing on the assessment of damages on the 13 December 2013. On this date the Defendant did not appear and the matter was further adjourned for hearing on the 17th January 2014. At the hearing on the 17 January the Defendant did not appear and the then proceeded.

The Evidence

At the hearing the Court advised the Plaintiff's Counsel that perhaps the best way to deal with the matter is to formally prove his case first and then proceed to assessment of damages on the claim being proved, although both the formal proof and the assessment of damages can be completed at the same time.

The plaintiff's sworn evidence was that he entered into an agreement to purchase the land from the Defendant and for this purpose he tendered into Court a copy of the agreement dated the 30th July 2007 (Exhibit 1). The agreement showed the details of the agreement. The agreement further showed that the consideration of $1500:00 was to be paid in two installments the first was a $1000:00 at the execution of the agreement and the balance on or before the 30 June 2008. His evidence was that he paid the first installment on the date of execution of the agreement and that the balance was paid into the Defendant's Solicitor's Trust account on the 30th March 2008. A trust account receipt was then tendered as Exhibit 2 showing that the payment was made. His further evidence was that despite his request for the transfer the Defendants refused and chose rather to evict him from the land. He said that he was willing to pay for the survey of the land.

There was no evidence tendered or adduced for the general damages component of the claim perhaps because it is clear that at least at this stage no damages has arisen. Perhaps the reason why the Plaintiff still resides on the land is that his daughter is married to the Defendant's son. How much more strain this case will bring to the relationship is difficult to determine one is hopeful though that common sense will prevail.

Conclusion

The evidence was not challenged by the Defendant although he was aware of the hearing date and that he was advised by the Court to seek legal representation. All the documents necessary for him to be aware of the proceedings served and the Court is satisfied that he was properly served. In this situation the Court has no choice but to accept the evidence as it stood; (see Krishna Brothers –v- Post and Telecommunications Ltd (2005) FJCA 36). Although the above case refers to the a challenge to the assessment of damages where no documentary proof of special damages was provided, the Court was of the view that in the absence of any challenges to the evidence provided it had no choice but to accept the sworn evidence given. I therefore make the following findings:-

1. That the Plaintiff and the Defendant entered into an agreement on the 30 July 2007 for the purchase of a portion of land of approximately 2500 Sq. meters owned by the Defendant within the Defendants land at Dreketi, Macuata known as Naqaraniqoli on CT 23998 on Lot 23;

2. That the Plaintiff had paid the consideration to the Defendant in accordance to the agreement; and

3. That the Defendant has failed to comply with the terms of the agreement despite the requests of the Plaintiff.

This Court in not having the powers to grant the injunctive relief sought in the

prayers is therefore unable to grant it.

I therefore make the following orders:-

1. That the Defendant is ordered to do all that is necessary to allow the Plaintiff to survey the portion of land on which he currently resides and which is the subject of these proceedings within 28 days;

2. That the Plaintiff is to pay for all the costs necessary for the survey of the subject land;

3. That the Defendant is further ordered immediately after the completion of the survey of the subject land to sign all the transfer documents and any other documents to enable the transfer of the said land to the Plaintiff; and

4. That upon the failure of the Defendant to comply with the above orders the Plaintiff is to be awarded damages to be assessed if necessary.

14 February 2014
H A ROBINSON
Master, LABASA