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Nisha v Hassan [2014] FJHC 9; HBC23.2010 (24 January 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action # HBC 23 of 2010

BETWEEN:

SARIMUN NISHA of Bocalevu, Labasa, Domestic Duties.
Plaintiff

AND:

MOHAMMED HASSAN of Kawakawa, Waiqele, Labasa, Businessman.
Defendant

COUNSEL : Mr Amrit Sen for the Plaintiff
Mr S Sharma for the Defendant

DATE OF JUDGMENT: 24th January 2014

JUDGMENT

1. The Plaintiff filed Writ of Summons on 22nd June 2010 seeking the following orders:

(a) A declaration that Mortgage No. 581827 was acquired through fraudulent misrepresentation and therefore is null and void;

(b) That the Defendant be ordered to reimburse a sum of $24,242.41 acquired by him under the Crop Lien no. 81/2006;

(c) An order that the defendant be ordered to discharge Mortgage No. 581827 and return Native Lease No. 26806 to the Plaintiff;

(d) An order that the Defendant be ordered to provide to the Plaintiff all accounts of monies received by him from Fiji Sugar Corporation;

(e) An injunction restraining the Defendant from exercising powers of sale under the purported Mortgage No. 581827 over Native Lease No. 26806;

(f) An injunction restraining the Defendant from receiving any further cane proceeds of Farm No. 13095 from Fiji Sugar Corporation;

(g) General Damages;

(h) Punitive Damages;

(i) Exemplary Damages;

(j) Costs of this action on solicitor client basis;

(k) Such further and/or other relief as this Honorable Court may deem just and expedient.

2. The Plaintiff inter alia pleaded in her Statement of Claim.

2.1 The Plaintiff is the daughter of the Defendant and the registered proprietor of Native Lease No. 26806 and known as Tuiro No. 3 on Plan No. M1652 containing in extent 23 acres and 3 roods, situated in Macuata.

2.2 The Lease was acquired by the Plaintiff on 22nd May 2003 and is covered with sugar cane Contract No. 13095.

2.3 On or about 25th January 2006 on the Defendant's representation that he would look after the affairs of the Plaintiff's land and sugar cane Farm No. 13095, the Defendant requested the Plaintiff to execute certain documents at the office of Mr Sheik Shah.

2.4 The Defendant's representation was executing of the documents intended to allow the Defendant to manage the cane farm of the Plaintiff and her sister Rajebul Nisha under the said Fiji Sugar Corporation Contract No. 13095.

2.5 The Plaintiff alleged that she was induced by the Defendant to execute several documents at Mr Sheik Shah's Office and the Defendant accompanied her.

2.6 The Plaintiff later discovered the documents executed at Mr Shah's Office, Crop Lien over Farm No. 13095 and Mortgage over the Native Lease No. 26896 and the said instruments were registered as Mortgage No. 581827 and Crop Lien No. 81/2006. The said documents were prepared by Gibson & Company and Defendant took the documents to Mr Shah's Office for execution.

2.7 The Plaintiff stated the Defendant had received under the Crop Lien $27,265.41 out of which only $3023 was paid to the Plaintiff subsequent to discovering that the Plaintiff was under paid, she wrote through her solicitors to the Defendant and the Fiji Sugar Corporation to stop payment of her cane proceeds to the Defendant.

2.8 The Plaintiff alleged that the Defendant refused to discharge the Mortgage and Crop Lien and failed to refund the monies due to the Defendant. As a result the Plaintiff was deprived of her income and unable to apply the proceeds for development of the farm and incurred loss and damage. Loss was stated as $24,242.41.

2.9 It was alleged that the Defendant threatened to exercise his rights under Mortgage No. 581827 over the Native Lease No. 26806.

2.10 On the basis that there was no money due or outstanding at the time of the execution of mortgage and the crop lien to the Defendant the Plaintiff pleaded the said documents are null and void.

2.11 It was further alleged that the said mortgage and crop lien were secured/acquired through fraudulent misrepresentation.

3. The Defendant, through his solicitors, responded to the Statement of Claim as follows:

(1) Replying to paragraph 1, the Defendant stated:

(a) Save as to admit that the Plaintiff is the:

(i) Daughter of the Defendant;

(ii) Registered lessee of all the land contained in Native Lease No. 26806 and known as Tuiro NO. 3 on Plan No. M1652 situated in Macuata, Labasa ("the land")

the Defendant denies the contents of paragraph 1, particularly that the area of the land in dispute is 23 acres and 2 roods;

(b) That the lease of the land was originally with the forefathers of the Defendant until its expiration after which the Defendant negotiated with the land owners after a lapse of 3 years for renewal of the said lease as the Defendant's family burial ground is located on the land;

(c) That due to the sentimental values attached to the land, the Defendant had no option but to secure the lease under the name of his daughter, the Plaintiff, as he was the registered lessee of another piece of Native Land contained in Native Lease No. 11346 being Lot 5 Section 2, Nabekavu Subdivision, Labasa;

(d) That all costs of acquiring the lease was borne by the Defendant particulars of which will be detailed in paragraph 2.

(e) That additional cost of clearing the land of overgrown bush with bulldozer and ploughing the same was borne by the Defendant. The Defendant also provided the Plaintiff with sugar cane seedlings.

(2) As to paragraph 2, the Defendant:

(a) Admits that the lease was acquired on 22 May 2003;

(b) Admits that Sugar Cane Contract No. 13095 with the Fiji Sugar Corporation is in place as regards sugarcane produce on the land.

(c) Stated that all necessary negotiations together with payments for the acquisition of the lease were done by the Defendant.

Particulars of Monies Spent by the Defendant to Acquire Renewal of the Lease

(i) The sum of $5,000 paid to Mataqali Vosobati as good-will for renewal of the lease;

(ii) The sum of $2,163.80 paid to Native Land Trust Board for renewal of the lease;

(iii) The sum of $270.00 being the cost of ploughing the Mataqali's other land as part of good will asked for the Mataqali;

(iv) The sum of $350.00 paid to hire a lorry for the Mataqali as asked for by the Mataqali as good-will payment;

(v) The sum of $200 for fees to reconnect metre supply for the lead man of the Mataqali as good will payment to the Mataqali.

(3) The Defendant denied the contents of paragraph 3 and put the Plaintiff to strict proof of the same. The Defendant further stated that:

(a) Initially, it was decided that the lease of the land would be acquired jointly in the name of the Plaintiff and another of the Defendant's daughter, Rajebul Nisha;

(b) The Native Land Trust Board policies prevented the acquisition of the land in dispute jointly by the Plaintiff and Rajebul Nisha;

(c) It was agreed between the parties that the lease would be acquired in the name of the Plaintiff and that the Defendant would carry out all the negotiations and pay all the costs associated with the acquisition;

(d) It was further agreed that the land will be occupied and used by all three parties initially to allow the Defendant to recover his costs in the following manner:

(i) 10 acres to the Plaintiff to plant and harvest sugarcane together with building her residential home on the said land;

(ii) 10 acres to Rajebul Nisha to plant and harvest sugarcane together with building her residential home on the said land;

(iii) 7 acres 3 rood to the Defendant to plant and harvest cane on the said land.

(e) After the land was acquired under the Plaintiff's name, the Defendant used his vehicles and resources to clear the land of overgrown bush and made the land ready for planting of sugarcane;

(f) The Defendant built a two bedroom dwelling house, together with electricity and water supply, for the Plaintiff and a 3 bedroom dwelling house, together with electricity and water supply, for Rajebul Nisha. The Defendant spent a total of $34,000 to build the dwelling house together with the various payments outlined and both the Plaintiff and Rajebul Nisha promised to pay back to the Defendant the amount of monies spent by him;

(g) After the acquisition, all parties shared the proceeds of the harvest according to the tones of sugarcane harvested by each individual party. The money was deposited in the Plaintiff's Bank Account and was shared out by the Plaintiff;

(h) Sometime in 2006, the Plaintiff started having issues when it came to paying laborers and Fiji Sugar Corporation for fertilizer supplied. The Plaintiff also threatened to evict Rajebul Nisha from the land.

(i) In view of the conduct of the Plaintiff, the Defendant had no option but to ask the Plaintiff to grant him a mortgage over the said land to protect himself in terms of the money he had spent to construct the dwelling house.

(j) The Defendant also obtained a crop lien to ensure that the money obtained from Fiji Sugar Corporation came to his account and so that he is able to distribute the monies obtained as such according to entitlements of the parties after deducting expenses for laborers, etc;

(k) The Plaintiff readily agreed to grant the mortgage and the crop lien to the Defendant as she was aware that the Defendant as the father of both the Plaintiff and Rajebul Nisha would be fair and impartial in distributing the monies obtained from Fiji Sugar Corporation. Furthermore, the mortgage obtained by the Defendant was to compel both the Plaintiff and Rajebul Nisha to pay to him the sum of $20,000;

(l) Although the Defendant is owed the sum of $34,000, he only obtained a mortgage in the sum of $20,000. The Defendant was prepared to forego the sum of $14,000 as the Plaintiff and Rajebul Nisha are his daughters.

(4) As to paragraph 4, the Defendant:

(a) Admitted that he asked the Plaintiff to grant him a crop lien so that the monies obtained from Fiji Sugar Corporation would come into his account so that the same could be distributed according to the entitlements on all parties as the Plaintiff and Rajebul Nisha had a falling out;

(b) Admitted that he had orally communicated to the Plaintiff his desire that his other daughter, Rajebul Nisha, is not unfairly treated;

(c) Denied that he "induced" the Plaintiff to accompany him to the office of Sheik Shah. The Plaintiff voluntarily and on her own free will accompanied the Defendant to the office of Sheik Shah;

(d) Denied that there was any inducement whatsoever. The Plaintiff on her own free will and understanding executed the documents, which were explained to the Plaintiff by Mr Sheik Shah. The Plaintiff was fully aware of the nature of the documents;

(e) Stated that the mortgage obtained by it over the land was to secure him for the monies spent by him to build two houses for the daughters.

(5) The Defendant denied paragraph 5 and states that the Plaintiff was fully aware of the nature of the documents executed by her as the same were explained fully to her by Sheik Shah and also Parshu Ram of Messrs Gibson and Company.

(6) As to paragraph 6, the Defendant:

(a) Admitted that the documents were prepared by Messrs Gibson and Company who explained to the Plaintiff the nature of the documents;

(b) Admitted that the Plaintiff was then taken to Sheik Shah for that the Plaintiff could receive independent advice as to the nature of the documents;

(c) Denied that Sheik Shah ever acted in any mattes for the Defendant.

(7) As to paragraph 7, the Defendant:

(a) Denied that the sum of $27,265.41 was received by him from Fiji Sugar Corporation and states that the sum of only $24,831.00 was received by him;

(b) Denied that the sum of only $3,023.00 was paid by him to the Plaintiff and states that the total sum of $7,409.00 was paid out to the Plaintiff;

(c) Stated that the sum of $7,409.00 was the entitlement of the Plaintiff according to the tonnage of sugar cane harvested by her. The remaining monies were divided between Rajebul Nisha according to their entitlements as per the tonnage of sugar case harvested;

(d) Stated that on or about 8th February 2009, the Plaintiff had acknowledged before one Mohammed Yasad and one Mohammed Saheem that she had been paid what was due to her by the Defendant for the sugar cane harvested by her;

(e) Admitted that he has not paid the Plaintiff the sum of $254.44 as her share of monies received from Fiji Sugar Corporation.

(8) As to paragraph 8, the Defendant had no knowledge of the actions taken by the Plaintiff denies that the Fiji Sugar Corporation ever stopped payment.

(9) As to paragraph 9, the Defendant will only discharge the mortgage upon the outstanding sum of $20,000 being paid to the Defendant together with transfer of the lease to be jointly held by Rajebul Nisha and the Plaintiff. The crop lien will be discharged simultaneously.

(10) As to paragraph 10, the Defendant stated that Plaintiff has not been deprived of any income and he has always given the Plaintiff her dues. The Defendant denied that the Plaintiff has been deprived of income or incurred loss and damages.

(11) As to paragraph 11, the Defendant will exercise his powers over Mortgage No.581827 should he not be paid what is due from the Plaintiff to him and agreed by her.

(12) The Defendant denied the contents of paragraph 12 and stated that the Plaintiff was fully aware of the nature of the documents and is also aware of the amount of monies she owes/owed the Defendant at the time of the execution of the documents.

(13) The Defendant denied the contents of paragraph 13 and stated that the Plaintiff is estopped from making this claim on the basis of the detriment suffered by the Plaintiff based on the promise given by the Plaintiff to allow the Defendant and Rajebul Nisha to use the land.

(14) The Plaintiff was further estopped from making this claim on the basis of the crop lien and mortgage granted by the Plaintiff in favour of the Defendant.

Counter Claim
(15) The Defendant repeated that contents of paragraph 1 – 13.

(16) The Defendant obtained the lease and paid for the associated expenses on reliance of the Plaintiff's promise to allow Rajebul Nisha usage of half of the land.

(17) The Defendant further relied on the promise of the Plaintiff to allow him to use 4 acres out of her share in clearing the land and preparing it for planting of sugar case.

(18) The Plaintiff had breached the promise and is breaching the promise by giving Rajebul Nisha a notice to vacate the land.

(19) The Plaintiff is stopped from making this claim on the basis of the detriment suffered by the Defendant on reliance of the promise made by the Plaintiff.
(20) The Defendant prayed:

(a) the Plaintiff's Statement of Claim be struck out and costs awarded to him on an indemnity basis;

(b) an order that the Plaintiff pay the sum of $14,000.00 to the Defendant being the remainder of the sum spent by the Defendant and not secured by way of a Mortgage;

(c) in the alternative, the Plaintiff pay the Defendant the sum of $34,000.00 and the Defendant to discharge the Mortgage No. 581827 and Crop Lien No. 81/2006;

(d) an order that the Plaintiff transfer 50% of the land to Rajebul Nisha;

(e) costs;

(f) interest;

(g) any other order that this court seems just.

(21) The Plaintiff filed her Reply to Defence and Defence to Counter Claim on 3rd August 2010.

(22) Minutes of Pre-Trial Conference was filed on 8th February 2012.

Agreed facts:

1. The Plaintiff is the registered proprietor of all that piece of land comprised in Native Lease No. 26806 known as Turio No. 3 on Plan No. M1652.

2. Lease was acquired on 22nd day of May 2003 and is covered by Sugar Cane Contract No. 13095.

3. The said lease is encumbered to the Defendant pursuant memorandum of mortgage number 581827 registered on 7th February 2006 for a sum of $20,000.00.

4. The Defendant holds a Crop Lien over the said Farm No. 13095 at Wailevu Sector for a sum of $20,000.00.

The issues raised in the pre-trial conference limited to this issues:

1. Whether the Plaintiff is entitled to the reliefs and orders sought by the Plaintiff in the pleadings?

2. Whether the Defendant is entitled to the reliefs and orders sought by the Defendant in the pleadings?

(23) The trial was taken up for hearing on 21st of June 2013 and the following witnesses gave evidence on behalf of the Plaintiff:

(i) The Plaintiff, Sarimun Nisha;

(ii) Shalendra Singh, Officer from Fiji Sugar Corporation.

The following witnesses gave evidence on behalf of the Defendant:

(i) Mohammed Hassan (the Defendant);

(ii) Sheik Shah;

(iii) Rajibul Nisha;

(iv) Mohammed Yashin;

(v) Mohammed Shahin.

(24) Before considering the legal submissions it's a matter for this court to satisfy whether the Plaintiff had proved her case.

24.1 The issues raised in the Pre-Trial Conference had been limited to 2 broad issues:

(a) as to whether the Plaintiff is entitled to the reliefs and orders sought by the Plaintiff in the pleadings?

(b) as to whether the Defendant is entitled to the reliefs and orders sought by the Defendant in the pleadings?

As such the evidence before this case has to be properly analyzed, to make conclusions in this case.

24.2 There was no dispute with regard to Native Lease No. 26806 which is subject matter of this case marked as P1 in these proceedings.

24.3 Sarimun Nisha, the Plaintiff in her evidence admitted that the land was acquired by her father on her behalf. I reproduce the Plaintiff's evidence:

"........In 2003 I was living with my father, lease was given in 2003. Father paid all the costs. He paid $2,500.00 to the Native Land Trust Board. He paid further monies........"

Under cross-examination, the Plaintiff admitted that apart from the payments to NLTB monies were paid to the Mataqalis and the Application was made for the lease by the Defendant on behalf of the Plaintiff on an expired lease.

"Q. In 2003, you were aware father (the Defendant) made an application on your behalf on an expired lease?

A. Yes

Q. After expiry of the lease, Mataqalis have to give consent to NLTB?

A. Yes

Q. Mataqalis demand money?

A. Yes

Q. Father paid monies to Mataqalis as goodwill, yes?

A. Yes"

Further, the Plaintiff admitted under cross examination there were two houses built by the father one for the Plaintiff and the other one for her sister Rajebul Nisha.

"Q. Father built two houses?

A. Yes. One for me and one for my sister.

Q. In 2004, your sister cultivated the land?

A. Yes. In 2005 too.

Q. When was the relationship deteriorated with the sister?

A. In 2006, harvesting season, because money was not distributed. In 2006 there was Crop Lease executed to the father to distribute the income on tonnage basis."

24.3 The above positions taken up by the Plaintiff supports the Defendant's version of the evidence.

The Plaintiff admitted father had made payments to Mataqalis but doesn't know the amount of the payment. The Defendant says he paid $5,000.00 and further monies; in absence of any evidence in contrary the court has to accept the evidence of the Defendant. The Defendant further explained why the payment was made:

"Without good will payment Mataqali's won't give their consent to lease the land. I needed this land because it was used as graveyard of my grandparents. Native Land Board cannot give a lease without the consent of the Mataqalis."

The conclusion that this court can arrive is that the Plaintiff had paid $5,000 to the Mataqali's to obtain the consent for the lease.

It was also stated by the Plaintiff in her evidence that $2,500.00 was paid to the NLTB which was admitted by the Defendant too. It was also stated by the Plaintiff that she made to understand $10,000.00 was paid to the NLTB and she didn't see any receipt.

24.6 Prior to getting the lease in favour of the Plaintiff, the Defendants position was that:

1. The subject land was used as a grave yard of the ancestors;

2. The lease of the land was expired and the Defendant was to obtain the lease with the consent of the land owning Mataqalis;

3. The Defendant intended to obtain the lease in his name, however, he could not get the lease for the reason he had another lease from NLTB;

4. Then he wanted the lease in the joint names of the Plaintiff and his other daughter Rajebul Nisha which didn't took place because the leases by NLTB was not issued in joint names (pleaded in paragraph 3(a) to (c ) of the Statement of Defence).

24.7 The above position of the Plaintiff was unchallenged and corroborated by the evidence of Rajebul Nisha, and Mohammed Yasin.

24.8 Considering the evidence led before me, I find the following:

(i) The Defendant's intention was to obtain the lease in his name or in the joint names of the 2 daughters to secure the graveyard of his ancestors;

(ii) The Defendant could not obtain the lease in his name for the reason that he had obtained another lease from NLTB previously;

(iii) The Defendant could not get the lease in the joint names of the daughters Sarimun Nisha (the Plaintiff) and Rajebul Nisha since NLTB did not grant Native Lease in joint names;

(iv) The Defendant's intention of giving the land for the occupation of the two daughters was evident by constructing 2 houses on the land and one house were occupied by the Plaintiff to date and the other one by Rajebul Nisha from 2003 to 2009;

(v) The evidence led, established that the Defendant had made payments to the NLTB, Mataqali's for goodwill to get the consent and incurred expenses for clearing of the land by using machineries;

(vi) There is no evidence to establish that the Plaintiff was unduly or fraudulently induced by the Defendant to execute a Mortgage and Crop Lien in favour of the Defendant. In this regard Mr Sheik shah who executed the Mortgage Bond and Crop Lien (marked as P2 and P4 by the Plaintiff and the Defendant forwarded originals of these 2 documents marked D2 and D3). Mr Shah stated to the court in his evidence D2 and D3 were witnessed by him and the contents of those documents were explained to the Plaintiff.

I quote the relevant portion of Mr Shah's evidence:

".....P2 and P4 were shown to the witness. I witnessed these documents. Mortgagor is Sarimun Nisha. I have to identify the person. I explained the documents to her. Documents were prepared by Gibson and Company. We never get our clients to sign documents prepared by us. Original Mortgage Document tendered marked as D2. I witnessed another document too. Shown original Crop Lien tendered marked as D3, executed on the same day. I explained all the contents to the Plaintiff and I witnessed the documents."

This position was never challenged by the Plaintiff at the cross examination. I conclude the Plaintiff executed the documents with full knowledge and there was no false representation by the Defendant and Mr Sheik Shah who witnessed the documents had explained P2 and P4 and the Plaintiff was aware of the nature of the documents. As such the Plaintiff fails in her claim that she signed the Mortgage and Crop Lien without any knowledge and I find the said Memorandum of Mortgage and Crop Lien are valid documents.

24.9 I further conclude there were monies due and owing to the Defendant in terms of Memorandum of Mortgage Bond No. 581827 registered on 7th February 2006 for a sum of $20,000.00. As per the terms of the Mortgage, there was no interest chargeable neither the Defendant claim interest. The Defendant's evidence was that the Mortgage Bond was executed for the purpose of securing the expenses incurred by him as such by not including the rate of interest the evidence of the Defendant is corroborated. I am satisfied that the Defendant wanted to recover the expenses incurred for acquiring and developing the land.

The Plaintiff's counsel attempted to submit through the evidence, for the expenses there was no invoices raised and no proper accounts being prepared, no signatures being obtained for the payments made to the Plaintiff and her sister Rajebul Nisha. This court has to view the said position taking into consideration of:

(a) the relationship between the Plaintiff and the Defendant, being daughter and father;

(b) the intention of the father by acquiring the land he intended to:

(i) secure the graveyard of his ancestors;

(ii) to get his two daughters (the Plaintiff, Sarimun Nisha and Rajebul Nisha) to occupy the land jointly and use the land jointly.

When the Plaintiff acted against the wishes of the father, father had decided to get the Mortgage and the Crop Lien, until the relationships were deteriorated for the monies expended there was no necessity to issue vouchers or invoices to the daughter (Plaintiff). As such I conclude in this case, the court need not to rely on the Accounts, Statements, Invoices, or Vouchers. This court has to make its conclusions on the basis of the oral evidence led before it and considering where the balance of probability lies. It is not necessary for the court to go through to verify each and every piece of documents to prove the liability for the reason that the Accounts were not properly kept by the Defendant for each and every transaction because of the relationship between the parties.

24.10 The officer from the Fiji Sugar Corporation (FSC) gave evidence before this court. According to his evidence, FSC has paid $28,675.00 to Mohammed Hassan's Account, (the Defendant's Account) that is for the period from 2006 to 2011.

24.11 The Plaintiff in her claim stated she claims $27,265.41 was received by the Defendant and out of which the Defendant had reimbursed her only $3023.00.

24.12 The FSC officer's evidence was not challenged by the Defendant as such I conclude that the total payment received by the Defendant was $28,675.00 (from 2006 to 2011).

24.13 The Plaintiff stated she got $3023.00 out of the said payment; she failed to produce any documents supporting it. When she alleges her father did not kept proper accounts then she too was obliged to keep the accounts/or records. However, the father kept a ledger book and the Plaintiff's sister gave evidence stating that she received $8000.00 from the Defendant as her share and she cultivated the land up to 2009. She got the letter from the Plaintiff to vacate the land in 2010 and she vacated in 2011. The Plaintiff's position was since 2006 Rajebul Nisha didn't cultivate the land. By evidence led before me it was clear that she cultivated the land up to 2009. I am satisfied with the evidence led in this case and conclude there was share farming in the land.

24.14 Having concluded as above, there was share farming and the Mortgage and Crop Lien being executed in favour of the Defendant. Defendant was the recipient of the proceeds of the sugar cane who holds the monies in Trust which was distributed among three beneficiaries including the Defendant.

24.15 Having considered all the evidence led before me, my findings are:

1. From 2006 to 2011, the Defendant received $28,675.00 from FSC as proceeds of the share farming;

2. The Defendant had paid as per evidence $7,000.00 to the Plaintiff being her share on the share farming;

3. I am satisfied with the evidence that $34,000.00 was expended by the Defendant for development of the land inclusive of payments made to the NLTB, Mataqali's and putting up of the house for the Plaintiff.;

4. However, the Memorandum of Mortgage was executed for only $20,000.00 with 0% interest; I conclude that the Defendant is entitled to recover only the said $20,000.00 from the Plaintiff.

Accordingly, I make the following Orders:

(a) Plaintiff's claim is dismissed;

(b) Defendant's counter claim under paragraphs (a), (b), (d), (e) and (f) of the Statement of Defence are dismissed;

(c) The Counter Claim made under paragraph (c) of the Statement of Defence is varied and the Plaintiff is ordered to pay $20,000.00 to the Defendant and on payment of the said sum of $20,000.00 the Defendant should discharge the Mortgage No. 581827 and Crop Lien No. 81/2006 forthwith;

(d) The Plaintiff is further ordered to pay the said sum of $20,000.00 within 3 months from the date of this Judgment and if the said payment of $20,000.00 is defaulted, the Defendant is entitled to proceed on the Mortgage Sale of the Native Lease No. 26806 known as Tuiro No. 3 on Plan No. M1652;

(e) Both parties should bear their own costs.

Delivered at Suva this 24th day of January, 2014.

C. KOTIGALAGE
JUDGE