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Corporate Management Services Ltd (trading as The Hot Bread Kitchen) v South Pacific Agriculture Development Ltd [2019] FJHC 133; Civil Action 112 of 2017 (27 February 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

Civil Action No. 112 of 2017

BETWEEN

CORPORATE MANAGEMENT SERVICES LIMITED t/a THE HOT BREAD KITCHEN

FIRST PLAINTIFF

BETWEEN

SAMISONI ENTERPRISES LIMITED

SECOND PLAINTIFF

AND

SOUTH PACIFIC AGRICULTURE DEVELOPMENT LIMITED

DEFENDANT

COUNSEL

Mr D. Prasad for the First and Second Plaintiffs

Mr A. Khan for the Defendant

Date of Hearing : 11 February 2019

Date of Judgment : 27 February 2019

JUDGMENT

1. This is the Plaintiffs’ Originating Summons (OS) seeking the following orders:
   
   • (1) That the Defendant as per the Memorandum of Agreement dated 25 February 2014 transfer the 8 properties described to the First Plaintiff.
   • (2) That the Registrar of Titles and or the Chief Registrar of the High Court to execute the transfer documents.
   • (3) Alternatively that the Defendant to pays the sum of $2,508,493.62 with interest for loans taken from the First Plaintiff.
   • (4) That the Defendant pays to the Second Plaintiff the sum of $150,000 with interest (being) a loan taken by the Defendant from the Second Plaintiff.
     
2. Affidavits in support and in opposition were filed by both sides.
   
3. The hearing commenced with Mr Prasad submitting the Plaintiffs and the Defendant executed the Sale and Purchase Agreement made the blank date of February 2014 (SPA). He referred to the Memorandum of Understanding (MOU) dated 16 September 2015 between the Defendant and the Fist Plaintiff.
   
4. Mr Khan then submitted. He said the SPA and the MOU were not stamped and therefore should be struck out and the OS dismissed. He had a second preliminary issue which was the Writ of Summon was the proper channel to commence the matter and not an OS. In any event the Court should not look at the 2014 SPA now because it is unstamped and that is the end of the matter.
   
5. Mr Prasad in his reply said the non-stamping of the documents was not referred to by the Defendant in its affidavit. He said the non-stamping of the 2014 SPA does not nullify it as it would stamped at the time of the stamping of the transfer.
   
6. At the conclusion of the arguments, I said I would take time for consideration. Having done so I shall now deliver my decision.
   
7. I opine that at this juncture the sole issue for me to consider is whether the OS ought to be dismissed on the ground that the SPA and the MOU were not stamped, as can be confirmed by a perusal of both documents. The relevant legislation to consider is the Stamp Duties Act 1920, and the relevant section thereof is section 41 which reads:
   

“Except as aforesaid, no instrument executed in Fiji or relating (wheresoever executed) to any property situate or to any matter or thing done or to be done in any part of Fiji shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed”.

8. Since the Plaintiffs have clearly based their claims on the SPA if not on the MOU as well, it follows that the OS must necessarily fail. There is no way the Court can order any transfer of any property or make any other order when the instrument upon which the Plaintiffs base their claims “shall” not be given in evidence.
   
9. In the result, the Court has no alternative but to dismiss the Originating Summons filed on 24 April 2017 and to order the First and Second Plaintiffs to pay the Defendant the costs of this OS summarily assessed at $500.
   

Delivered at Suva this 27^th day of February 2019.

....................................
David Alfred
JUDGE
High Court of Fiji