IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 14 OF 2005

BETWEEN:		RAM KUMARI

First Plaintiff

AND:			YOGESH PRASAD

Second Plaintiff

AND:			VIMAL PRASAD

First Defendant

AND:			HERMANT KUMAR
Second Defendant

AND:			THE REGISTRAR OF TITLES

Third Defendant

AND:			ATTORNEY-GENERAL OF FIJI
Fourth Defendant

CORAM:	 	The Hon. Mr. Justice David Alfred

COUNSEL:		Mr. A. Ram, Mr. A. Kumar with him for the First and Second 				Plaintiffs
	
			Mr. A. Kohli for the First and Second Defendants

			Mr. J. Pickering, Mr. J. Mainavolau for the Third and Fourth 				Defendants

Dates of Hearing:	18, 19 and 20 September, 2017
Date of Judgment:	22 September, 2017

JUDGMENT

1.	The record of these proceedings make for edifying reading.  Pleadings that started 	with a Statement of Claim dated 28 April 2005 closed with the Second Amended 	Statement of Claim filed on 8 March 2017.  The protracted proceedings were only 	brought to a final end after 12 years by a hearing over 2½ days in the 3rd week of 	September 2017.

2.	The 3rd version of the Statement of Claim states in a nutshell the following:

(1)	The First Defendant (owner) was the proprietor of the land in question with a 		dwelling   house   thereon (the  land),  which   was  mortgaged  to  the  Fiji 		Development Bank (FDB).

(2)	The  owner  entered  into  an  agreement  with  one, Rajendra Prasad, since 	deceased (the deceased) of whose estate the First Plaintiff is the administratrix and of 	whom the Second Plaintiff is a son.

(3)	The agreement provided that the deceased would pay a monthly instalment of 	$330 (sic) to the FDB.  (The agreement states $320).

(4)	Pursuant to the agreement the deceased began to pay the instalments.

(5)	By a memorandum in writing, on 24 November 1997, the owner gave to the deceased.
	(a)	full control of the land.
	(b)	authority to determine who occupies the land.
	(c)	confirmation that the land would not be sold to anyone other than the 			deceased.

(6)	The owner on 6 April 1998 executed a power of attorney in favour of the deceased.

(7)	The deceased and the Second Plaintiff agreed and undertook to pay the arrears owing 	by the owner to the Savusavu Town Council relating to the land.

(8)	On 5 May 2000 the owner offered in writing to sell to the deceased and the Second 	Plaintiff the land for $30,0000, which they accepted and continued to pay instalments 	to the FDB on account of the owner.  These were accepted by the owner as payments 	to account of the purchase price of $30,000.

(9)	The deceased died on 11 December 2002.

(10)	The First Defendant did not terminate the Sale and Purchase Agreement (SPA) at any 	time between 5 May 2000 and 1 December 2004 or at all.  On that date the First 	Defendant entered into a sale and purchase agreement with the Second Defendant.

(11)	The owner applied for the removal of the caveat on 11 March 2005, which caveat had 	been lodged by the Administratrix through her solicitors, Maqbool & Company.  	Notice of the Application for Removal (dated 17 March 2005) was sent by registered 	post to her and the notice uplifted by her solicitors on 30 March 2005.

(12)	On 12 April 2005 the Registrar:
(a)	removed the caveat and accepted for registration;
(b)	discharge of the mortgage to FDB;
(c)	transfer from the owner to the Second Defendant (buyer);
(d)	Mortgage from the buyer to the Colonial National Bank.

(13)	A search revealed the caveat had been wrongly removed on 12 April 2005.  The 	Second Plaintiff’s solicitors presented a new caveat for registration but the Registrar 	refused to register it.

(14)	The buyer had personal knowledge of the Plaintiffs’ rights in the land and the owner 	and buyer entered into a fraudulent transfer with the intention of depriving the 	Plaintiffs’ of their proprietary interests in the land.

(15)	The Plaintiffs believe the value of the land is no less than $130,000.

(16)	In breach of the agreement of 31 July 1997 and the offer dated 5 May 2000 the 	Plaintiffs lost the land which the owner sold for the price of $54,000.

(17)	The Plaintiffs however paid a total of $31,850 to FDB and are willing to perform the 	agreement and the offer.  They have also carried out repairs etc at $2,000 and 	reclamation of land in 2001 at $4,500.

(18)	The Plaintiffs claim:

	(a)	A declaration that the caveat was wrongly removed.
	(b)	That the caveat be registered.
	(c)	A declaration that the transfer of land registered on 12 April 2005 be set aside.
	(d)	That the Registrar register the caveat from the Second Plaintiff.
	(e)	An order for specific performance of the sale and purchase arrangements of 31 		July 1997 or the offer of 5 May 2000.
	(f)	An injunction restraining the owner and buyer from interfering with the 			Plaintiffs as beneficial owners of the land.

3.	The Amended Statement of Defence (defence) of the First Defendant contends:
(i)	It was an express condition between the deceased and the First Defendant that the latter would sell the land to the former if the deceased continued to pay the FDB without fail which the deceased and/or the Plaintiffs failed to do.
(ii)	The said Power of Attorney was granted to permit the deceased to attend to the transfer of the land to the deceased upon payment of the loan at FDB and other rates.
(iii)	The First Defendant advised the Plaintiffs verbally that he did not wish to continue with the sale as the Plaintiffs had defaulted in the repayment to the FDB.
(iv)	The First Defendant sold the land to save his own interest and because the Plaintiffs had breached the condition of sale they had no equity in the land.
(v)	The FDB issued a demand notice in October 2004 for $33,825.73 or else the land would be advertised for mortgage sale.  The First Defendant handed the notice to the Plaintiffs who refused to accept it and arrange for payments to the FDB.  The Plaintiffs advised they were unable to meet the same.  The Plaintiffs had failed to pay the town rates.
(vi)	The land was put on tender by the FDB after the Plaintiffs failed to pay the repayment on time.
(vii)	The Plaintiffs however breached the conditions of the agreement with the First Defendant and have no right over the land.

4.	The Amended Statement of Defence of the Second Defendant (defence) contends that 	he is the bonafide purchaser for value, the Registrar had rightly removed the caveat, 	discharged the FDB mortgage, transferred the land to him and registered the mortgage 	to Colonial National Bank.  Thus the Plaintiffs have no claim against him, no right 	to remain on the land and vacant possession be given to him. Accordingly the 	Second Defendant counter claims against the Plaintiffs for rent at 	$400 p.m. from 1 	February 2005 and aggravated damages.

5.	The Amended Defence of the Third and Fourth Defendants (defence) states the new 	caveat was refused as it was presented for lodgement on 18 April 2005, well after the 	Transfer and mortgage were lodged and accepted for registration on 12 April 2005.  	Registration of a document occurs a couple of days after it is endorsed. 

6.	It is instructive to observe that the Deputy Registrar (of the court) on the hearing of 	the summons for directions on 28 February 2006, ordered the action be tried before a 	Judge and set 	down within 28 days which would have been 28 March 2006.  It is 	now 11 and a half years later and it will be instructive for the parties to know this 	inordinate delay is not due to the fault of the court.

7.	The hearing before me commenced with the Second Plaintiff (PW1) giving evidence.  	He said Exhibit P2 is the agreement, Exhibit P5 is the Power of Attorney and Exhibit 	P6 is the agreement whereby he is a co-purchaser.  He said in 2000 they did not 	receive the Bank loan because of the George Speight coup.  The seller did not rescind 	the agreement and they continued to make payments towards the $30,000 price 	directly to the Bank up to 31 December 2004.  They never received notices from the 	First Defendant that their payments were behind time.  No notice of any cancellation 	was received by them.  The seller never told him of the FNPF debt nor is it stated in 	any of 	the documents.  The First Defendant was wrong in not informing him of the 	full details and he never sent him a letter that he was cancelling the agreement.  They 	lodged a caveat and when it was removed on 12 April 2005 he tried to put in another 	caveat but it was not registered.  He had a valuation done and S.T. Lomaiviti stated 	the value in 2005 was $130,000.  The current valuation is $150,000.

8.	At this juncture Co-Counsel for the Third and Fourth Defendants produced to me a 	copy of the Ruling of Anjala Wati J dated 25 April 2017, which he said he only just 	become aware of.  Counsel for the First and Second Defendants said he was aware of 	it.  Counsel for the Plaintiffs said my learned sister had ruled that assessment and 	liability were to be decided.  In my view it was Plaintiff Counsel’s duty to have 	informed me at the outset of the hearing of this ruling.

9.	PW1 continued that the seller never approached him to refund the money he had paid 	and never advised him (PW1) that he was selling the property to the Second 	Defendant.  There was no letter from the seller to him to pay the outstanding amount.  	He lost the land because of the Third Defendant removing the caveat.

10.	In cross examination by Counsel for the First and Second Defendants, PW1 agreed 	that the First Defendant gave the deceased full power to deal with the land.  He also 	agreed that the sum of $29,579.65 was outstanding at 31 December 1999, which is 	why the sale price is $30,000.  He said because the $30,000 was not enough to pay the 	FNPF loan, the First Defendant sold to the Second Defendant, who is no relative of 	his. PW1’s last payment to the FDB was of $360 on 31 December 2004.  The 	property was advertised for sale in the newspaper by the Bank.  When the tenders 	came in to the FDB the First Defendant discovered it was not enough to pay off the 	debt, the First Defendant approached the Second Defendant to enter into a private 	sale.  PW1 had an interest in the property so he put in a tender of $30,000.  He did not 	know of anyone who came with a price higher than $54,000.  He had been occupying 	the premises since 1 February 2005.  The rent would have been $200 p.m., but he did 	not pay any rent.  The fault of the Second Defendant was he knew they were living in 	the property.  He had a moral but not a legal obligation to enquire of PW1.

11.	When cross examined by Counsel for the Third and Fourth Defendants, PW1 said he 	knew the First Defendant’s account was in debt.  Sometimes he, PW1, paid less 	sometimes more.  In 2005, Maqbool & Co (Maqbool) did not inform them of the 	removal of the caveat and did not inform him that the caveat would be removed after 	21 days if there was no objection.  Maqbool should have informed him of the notice 	but they did not.  If they had informed him things would have been different.  	Maqbool from 30 March to 11 April 2005 were sitting on the notice.  Maqbool did not 	inform them he could 	have gone to court to extend the caveat and did not inform them 	he could have gone to court for an injunctive order.  They should have informed him.  	If Maqbool had done that then they would have got the property.

12.	At this time, both Counsel for the First and Second and for the Third and Fourth 	Defendants informed the court that they accept the two valuation reports and did not 	seek to cross-examine the makers.  

13.	The next witness was the First Plaintiff, Ram Kumari, PW2.  She said she knew her 	husband (the deceased) was purchasing the property from the First Defendant and 	making payment.  The sale price was $30,000.  She put in a caveat.  Everything was 	done by her son and her husband.

14.	There was no cross-examination by Counsel for the First and Second Defendants.

15.	Under cross-examination by Counsel for the Third and Fourth Defendants, PW2 said 	she left everything to her son.

16.	In answer to the court, PW2 said she had been staying in the same house since 2005.

17.	With that the Plaintiffs closed their case and the First and Second Defendants opened 	theirs.

18.	The First Defendant, Vimal Prasad (DW1) now gave evidence.  He had a freehold 	property with a house thereon where the deceased (his brother) and him and their 	families resided.  It was mortgaged to the FDB.  After his retirement he would have 	no income so he offered the property to the deceased and after he paid off the debt, 	the property would be transferred to him.  The deceased applied to the FDB for a loan 	and so 	wanted the property in the names of himself and his son.

19.	On 5 May 2000, the debt to  the FDB was  $29 - $30,000.  He wrote to the 	deceased and the Second Plaintiff offering to sell the property for $30,000 which 	would have taken off the debt to the FDB. He gave the deceased a full Power of 	Attorney to deal with the property as he wishes.  He was informed by the FDB that his 	loan was in arrears.  This was in about 2004.  He gave the FDB notice (Exhibit D2) to 	the Second Plaintiff and his brother. From their reaction, they did not appear 	interested in attending to it.

20.	In 1997 to 2004, he had taken a loan of $10,000 from the FNPF who put a charge on 	the property.  He did not tell the Plaintiffs there was the FNPF loan.  He was told by 	the FDB that he had to repay $54,000 which included the $17,000 due to FNPF.  He 	was told there were 3 – 4 tenders and the amounts did not exceed $30,000.  So he 	approached the Second Defendant, his close friend who agreed to purchase the 	property and he sold it to him.  He could not find anyone who would pay more than 	$54,000.  He accepted the Plaintiff had paid FDB some $30,000.  Rates are still due.

21.	When cross-examined by the Counsel for the Plaintiffs, DW1 said he did not give any 	notice to remedy the account.  His Sale and Purchase Agreement (SPA) with them 	was not cancelled as they were still making payments.  Without cancelling the SPA, 	he proceeded to sell to the Second Defendant.  The Plaintiffs did not know of the 	withdrawal from FNPF.  The FNPF loan would be a problem if the property went for 	sale.

22.	Under cross-examination by the Counsel for the Third and Fourth Defendants, DW1 	said the Plaintiffs were aware of the fact that he was in arrears.

23.	The next witness was the Second Defendant, Hermant Kumar (DW2).  He said he 	knew the Plaintiffs were in occupation of the property.  He did not enter the 	agreement to deprive the Plaintiffs from purchasing the land.  The FDB legal 	department told them the property was going on tender and the sale would be 	advertised.  He put in his offer to FDB of close to $55,000.  He arranged for a loan 	from his Bank, BSP, which was approved.  The FDB told him his figure was right and 	he entered into a Sale and Purchase Agreement with the First Defendant.  The BSP 	gave Khan & Co, solicitors, the payments to FDB and FNPF.  Then the land was 	transferred to him.  He did not conspire with the First Defendant to cheat the 	Plaintiffs.

24.	When cross-examined by Counsel for the Plaintiffs DW2 agreed that the letter 	(Exhibit P20) dated 23 February 2005 from Khan & Co, solicitors, addressed to the 	Second Plaintiff only, was premature as the transfer (to him) was only effected on 12 	April 2005.  He said the town rates were in arrears in 2005 and still are.  He offered 	$55,000 because the First Defendant wanted him to clear the debts.  He only 	purchased the 	property to help the First Defendant.

25.	In re-examination DW2 said in 2004 – 2005 he was not looking for a property to 	purchase.

26.	With that the First and Second Defendants closed their case and the Third and Fourth 	Defendants opened theirs.

27.	Their first and only witness was Ms Torika Solicake Goneca (DW3), the Deputy 	Registrar of Titles.  She said they sent the notice of intended removal of caveat to the  	caveator, the First Plaintiff at c/- Maqbool & Co, by registered post.  The caveator 	had 12 working days and could have applied for a court order to extend the caveat.  	The Registry followed the normal procedure here.

28.	Under cross-examination by Counsel for the Plaintiffs, DW3 said the Acting Registrar 	of Titles in 2005 was the best person who knows about this matter.  The removal of 	the caveat was under s. 110 of the Land Transfer Act (LTA).  Once a caveat is 	removed there is no caveat on the title.  The Registry rule is no second caveat on a 	title.  She said everything on Exhibit P21 is the same as on Exhibit P23 except the 	latter is now a transfer in fee simple.

29.	At this juncture I instructed the Counsel for the Third and Fourth Defendants to have 	the original Dealing Book in court the next morning for my inspection.  

30.	DW3 continued that the transfer of lease was re-lodged with a new number.  The 	lodgement number of the transfer in fee simple was the same number as the transfer 	of the lease.  She agreed that someone “has altered or fiddled with the document.”

31.	The next morning (20 September 2017) the original transfer was produced.  After 	examining it, the Counsel for the Plaintiffs and the Counsel for the First and Second 	Defendants informed the court that the transfer in fee simple has been tampered with.  	However, Counsel for the Third and Fourth Defendants stated it has not been 	tampered with.

32.	DW3 was recalled and continued with her evidence.  She produced the original 	transfer in fee simple and said it had not been tampered with by the Registry.  She 	produced the certified true copy of the transfer in fee simple as Exhibit D3.  She said 	it is not the duty of the Registry to correct.

33.	Under cross-examination by Counsel for the Plaintiffs, DW3 said in 2005 the Registry 	had only a manual typewriter and the transfer of lease could not have been typed over 	to transfer in fee simple.  Exhibit P21 matches Exhibit D3 except for the heading and 	signature.  She did not know what happened in this case.   

34.	There was no cross-examination by Counsel for the First and Second Defendants and 	no re-examination by the Counsel for the Third and Fourth Defendants.

35.	Counsel for the Plaintiffs in his submission said the Plaintiffs have lost their land and 	they claim either reversal of the transactions or for compensation. The FNPF 	prevented the Plaintiffs from ever getting the title.  If the First Defendant had given 	notices of breaches, and non-remedy of breaches and then cancelled, it would have 	been all right.  The Registry was wrong to have rejected the caveat put in by the 	Second Plaintiff.  The loss to the Plaintiffs is the worth of the property in 2005 – 	Exhibit P18.  The Second Defendant’s Counter - Claim is improper and premature 	and ineffective because the notice is addressed to the Second Plaintiff and not to the 	First as well and the Second Defendant was not then registered owner of the property.

36.	The Counsel for the First and Second Defendants in his submission said the Plaintiffs 	have not asked, in their Statement of Claim, for the refund of the $30,000 but only for 	damages. The Sale and Purchase Agreement between the Plaintiffs and the First 	Defendant was brought to an end by the action of the mortgagee, FDB, in advertising 	the property for sale in late 2004.  The First Defendant took the loan from FNPF in 	2003.  The First Defendant did not do anything illegal; he did not cancel the Sale and 	Purchase Agreement; he wanted it to go on.

37.	Counsel for the Third and Fourth Defendants submitted that the Plaintiffs’ solicitors 	were served with the notice on 30 March 2005.  The documents were with the 	solicitors who should have gone to court for either an extension of the caveat or an 	injunction.

38.	Counsel for the Plaintiffs in his reply said the Plaintiffs have not asked for a refund of 	what they paid.  They wish the transactions to proceed.  The issue of a refund is not 	for consideration.  The Plaintiffs ask for $130,000, the value in 2005 of the land and 	the house, as damages. The FDB is not a party to either Sale and Purchase 	Agreement.  The breach was by the First Defendant.  The Plaintiffs were not in 	breach.  No document has been shown to the court from either side cancelling the 	SPA.  The Plaintiffs want to continue with the SPA.  It was a private sale to clear the 	charges to FDB and FNPF. There was a breach by the First Defendant in not 	disclosing the FNPF charge to the Plaintiffs. There was no termination by the 	First Defendant cancelling the sale.  Counsel said the caveator had 12 days to extend 	the caveat.  The caveator had the full period taken away from them.

39.	At the conclusion of the arguments, I said I would take time for consideration.  	Having done so, I now deliver my decision.

40.	The crux of this matter can be succinctly stated as follows.  Was the First Defendant 	entitled to sell the property to the Second Defendant after having agreed to sell it to 	the Plaintiffs?  This is the pivot on which are suspended all other issues.

41.	So I shall start by perusing the agreements concerned.  The first is dated 31 July 1997 	and is Exhibit P2.  It is made between the First Defendant and the deceased.  My 	conclusion regarding this agreement is that it is an open ended one with an obligation 	imposed upon and accepted by the deceased that he has to pay $320 p.m. till the 	whole 	debt of the First Defendant to the FDB is cleared.  Then and only then will the 	property be transferred to the deceased.

42.	Next I turn to the second agreement dated 9 May 2000 between the deceased and the 	Second Plaintiff and the First Defendant where the First Defendant offers to the 	deceased and the Second Plaintiff the property for $30,000, on the assumption that 	upon the latter’s bank’s approval of their loan, the property will be transferred to them 	as per the bank’s requirement.

43.	I read this to mean that, in the First Defendant’s own word (prerogative) the deceased 	and the Second Plaintiff have the right or privilege to arrange the financing for the 	purchase of the property to enable it to be transferred to them.  I also conclude that the 	First Defendant as vendor is now including the Second Plaintiff as co-purchaser of the 	property.

44.	The Second Plaintiff testified that in 2000 they did not receive the loan because of the 	coup.  I am aware of the occurrence in May 2000 of the coup but I am also taking 	judicial notice that the George Speight coup did not bring the banking or financial 	systems of Fiji to a grinding halt indefinitely.  The true situation was the banks were 	up and running after a few days.  For the Plaintiffs to evince a cavalier attitude to the 	fact that the bank loan was not forthcoming; for the Plaintiffs not to have exercised 	their prerogative and approached another bank; for the Plaintiffs to have continuing 	making payments to FDB, are in my view tantamount to the Plaintiffs considering and 	accepting the first SPA was extant.  This would mean the Plaintiffs would have to 	continue paying FDB until the First Defendant’s account was cleared. The evidence 	makes it as plan as a pikestaff that that never happened.  Thus the whole 	arrangement came to an end with the FDB issuing its notice (Exhibit D2), 	demanding 	payment of the arrears under the mortgage and if that did not happen the FDB 	would exercise its right to sell the property.  

45.	I am of opinion that when that occurred due to the Plaintiffs’ failure to clear the First 	Defendant’s debt, it resulted in the First Defendant being freed from selling the 	property to them and in the Plaintiffs claim against him collapsing.

46.	S. 39  of the LTA is entitled “Estate of registered proprietor paramount, and his or 	her title guaranteed” and lays down in effect that 	his title is defeasible only by 	fraud.

47.	If I may say so with respect, not a shred of evidence has been provided by the 	Plaintiffs of any fraud by the Second Defendant in his purchase of the property.  To 	accept any of the allegations set out in the latest version of the Statement of Claim in 	para 39 against the buyer and against the owner and the buyer as evidence of fraud 	would be stretching credulity to breaking point.

48.	The plain unvarnished truth is the Plaintiffs never had an lota of a claim against the 	land due entirely to their own acts of omission.  I do not think that any equitable right, 	if any does exist, could spring from such barren ground.

49.	It therefore follows as the night the day, that the Plaintiffs’ claims   against   the Third 	and Fourth Defendants similarly fail, in the light of my above findings of fact and law 	that neither the First Plaintiff nor the Second Plaintiff had any beneficial interest in 	the land to protect by the lodgement of a caveat.  It is because of my learned sister 	Wati  J’s ruling on 25 April 2017 that the  no injustice was done to the Registrar of 	Titles by the attempt of the Plaintiffs’ Counsel to proceed to assessment of damages 	without first establishing the Registrar’s liability.  

50.	There only remains for me to consider the Second Defendant’s Counter-Claim for rent 	of $400 p.m. from 1 February 2005 until the date of judgment.  It is trite law that there 	must be a proper and effective notice to quit to start the process of obtaining vacant 	possession and such notice must be given by the owner/landlord of the premises 	concerned.  

51.	Here I find as a fact that no such notice has been given in this matter.  The only 	purported notice – Exhibit P20 – was given before the Second Defendant became the 	registered proprietor of the property concerned and was not given to the co-	occupier/tenant, the First Plaintiff.  The Counter-Claim therefore fails.

52.	I am constrained to say I would have been prepared to order the First Defendant to 	pay the First and Second Plaintiffs the sum of $31,850 paid by them to the FDB for 	the account of the First Defendant, but am precluded from doing so by the express 	statement of the Plaintiffs’ Counsel that the Plaintiffs have not asked for a refund of 	what they paid and that the issue of a refund is not for consideration.  This is a once 	and for all abandonment of that claim.

53.	I have not considered the transfer, Exhibit D3, from the First Defendant to the Second 	in my judgment because it is not relevant to the issue between the Plaintiffs and the 	First and Second Defendants.  Even if the transfer were to be reversed that would not 	translate into a transfer to the Plaintiffs.

54.	For the sale of completeness I shall assess the damages if liability had been 	established.  For this shall turn to the Plaintiffs’ claim.

55.	It is clear that from the applicable law that the Plaintiffs would have been unable to 	obtain 	any of the relief claimed as the Second Defendant’s title is indefeasible as I 	made a finding of fact that there was no fraud on his part.  Any questions regarding 	the validity or otherwise of the transfer in fee simple to the Second Defendant, even if 	decided against the Second Defendant does not operate ipso facto to transfer the 	property to the Plaintiffs.
56.	The application for  specific performance of the agreements made on 31 July 1997 	and on 5 May 2000 similarly are now  impossible to grant as they require (the 	Plaintiffs) to first clear the First Defendant’s debt to the FDB which they failed to do 	and which today they will be unable to do.

57.	In other words no court will order an injunction or specific performance where it will 	serve no purpose as is the case here. So this leaves only the issue of damages.

58.	These have been particularised in the alternative prayers.  The first is special damages 	in the sum of $54,000, being the sale price of the land.  There is no basis for the 	Plaintiffs to claim this sum when from the Second Plaintiff’s own testimony he only 	tendered $30,000 to the FDB.  Clearly he did not think the property was worth much 	more, which leads me to the next claim.

59.	This is for the sum of $76,000 being the alleged loss on the sale – the difference 	between the $130,000 value and the $54,000 sale price. It is significant that in the 	statement of claim dated 28 April 2005, some 2 weeks after the transfer of the 	property, the Plaintiffs were stating the value of the land was $54,000.

60.	This and the Second Plaintiff’s tender of only $30,000 clearly show that the court 	should not set any store by the valuation of $130,000 in Exhibit P18.  I note the 	following salient features of this valuation report:
(1)	It is dated 11 February 2016.
(2)	It is aimed “to determine the Current Value or Value as Is”.
(3)	“This Valuation represents our opinion of value as at the date of the Report”.

61.	Therefore the bald unsupported assertion that the market value in 2005 was $130,000 	cannot be accepted in any court of law for it begs the question why was such a 	valuation report not obtained in April 2005.  A judge should therefore look askance at 	the alleged market value 12 years ago.

62.	Even if I had accepted the market value in 2005 was a figure between $30,000 and 	$54,000 and would have prepared to award the median figure, I would have had to 
	deduct therefrom in the words of Lord Wright, in the Fibrosa Spolka Alecyjna v 	Fairbairn Lawzen Cambe Barbaw Ltd [1943] AC 32 pg 61, the benefit the Plaintiffs 	derived from the Defendants which it is against their conscience they should keep.  	This is the principle of unjust enrichment.  So since the Second Plaintiff stopped the 	payments to the FDB on 31 December 2004 which included a monthly house rent of 	$200, which he did not pay this sum would have to be deducted from 1 January 2005 	to at least 22 September 2017, a total of 153 months which would come up to 	$30,600.  From the 2005 market value of say $42,000 (the median figure between 	$54,000 and $30,000) the total rent of $30,600 (unpaid) would have to be deducted.  	This will leave a sum of $11,400 to be paid to the Plaintiffs.  I would apportion the 	payment of this sum at 50% against the First Defendant and at 50% against the Third 	Defendant.

63.	Finally I would not have allowed the claims of $200 for maintenance and $4500 for 	reclamation as no specific detailed itemised bills and receipts for the same were 	provided by the Plaintiffs to the court.   A bald statement dated 21 April 2005 is no 	proof in a court of law of an expenditure allegedly incurred in 2001

64.	In the result I make the following orders:
(1)		All the claims of the First and Second Plaintiffs against the First, Second, 	Third and Fourth Defendants are hereby dismissed.	
(2)		The Second Defendant’s Counter-Claim against the First and Second Plaintiffs 	is hereby dismissed.
(3)		Each of the parties shall bear their own costs of this matter.

	Delivered at Labasa, this 22nd day of September, 2017.

							……………………..
							DAVID ALFRED
							JUDGE
							HIGH COURT OF FIJI