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Khan v Deo [2020] FJHC 413; HBC8.2016 (11 June 2020)

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION
AT LABASA


Civil Action No. HBC 8 of 2016


BETWEEN: MOHAMMED AIYUB KHAN


PLAINTIFF


AND: RADHESHWAR PRAKASH DEO
1ST DEFENDANT


ITAUKEI LAND TRUST BOARD
2ND DEFENDANT


BEFORE: Hon. Acting Chief Justice Kamal Kumar


COUNSELS: Mr H. Robinson for the Plaintiff


Mr A. Sen for the First Defendant


DATE OF HEARING: 2, 3 October 2017


DATE OF JUDGMENT: 11 June 2020


JUDGMENT


  1. On 24 February 2016, Plaintiff filed Application for Leave to Issue and serve Writ of Summons on First Defendant.
  2. On 25 February 2016, Plaintiff filed Writ of Summons with Statement of Claim against the Defendants seeking following remedies:-

“(i) Specific Performance of Sale and Purchase Agreement dated 8 October 2013;

(ii) $30,000.00 Damages under Clause 17 of Sales and Purchase Agreement;

(iii) $50,330.21 as special damages”


  1. On 29 February 2016, the then Master ordered that Plaintiff to issue Writ of Summons against First Defendant and serve him out of jurisdiction.
  2. On 12 August 2016 and 7 October 2016, First Defendant filed Acknowledgement of Service and Statement of Defence and Counterclaim.
  3. On 25 November 2016, Plaintiff filed Reply to Statement of Defence and Defence to Counterclaim.
  4. On 23 January 2017, Defendant filed Reply to Defence to Counterclaim.
  5. On 3 March 2017, Plaintiff filed Summons for Directions with returnable date of 27 March 2017.
  6. On 22 April 2017, Plaintiff filed Affidavit Verifying List of Documents (“AVLD”).
  7. On 26 April 2017, First Defendant filed AVLD.
  8. Pursuant to Leave granted by Court, Plaintiff on 9 June 2017, filed Supplementary List of Documents.
  9. On 13 July 2017, Defendant filed Minutes of Pre-Trial Conference.
  10. On 8 August 2017, Plaintiff filed Summons to Enter Action for Trial.
  11. This matter was listed for trial on 2nd and 3rd October 2017.
  12. On 22 August 2017, Plaintiff filed Notice of Discontinuance against Second Defendant.
  13. Trial concluded on 3rd October 2017, when parties were directed to file Submissions by 14 November 2017.
  14. On 25 October 2017, First Defendant filed Submissions.
  15. On 22 November 2017, Plaintiff filed Application to extend time to file Submissions.
  16. On 15 December 2017, Court directed Plaintiff to file Submissions by 22 December 2017, and First Defendant to file Reply to Submissions by 5 January 2018.
  17. On 15 December 2017, Plaintiff filed Submissions.
  18. For sake of convenience First Defendant will now be referred as Defendant as action against Second Defendant has been discontinued.

Documentary Evidence


21. Following documents were tendered in evidence:-

Exhibit No.
Document
P1
Certified True Copy of Crown Lease 3094
P2
Photocopy of iTLTB Receipt No. 246459
P3
Sale & Purchase Agreement dated 08/10/13
P4
Transfer of Certificate Title No. 3094 dated 31/10/14
P5
TLTB Consent dated 17/10/14
D1
Original Probate No. 53660 - Estate of Ram Deo
D2
Letter of Administration No. 53982 - Estate of Padma Wati

Agreed Facts


  1. That the Defendant is the sole executor and trustee in the Estate of Ram Deo late of Naudamu, Labasa.
  2. That the Defendant is also the sole administrator of the Estate of Padma Wati aka Padma Wati Deo aka Padma Wati Ram Deo.
  3. Ram Deo and Padma Wati are the late parents of the Defendant, Radheshwar Prakash Deo.
  4. Defendant is a Civil Servant of Canberra, ACT, Australia.
  5. Plaintiff is a businessman of Nasekula Road, Labasa.
  6. That on or about the 8th October 2013, the Plaintiff and the Defendant entered into a conditional Sale and Purchase Agreement (hereinafter referred to as “SP Agreement”) for purchase of land known as being Lot 8 of Section 7, Labasa Town, NLTB Ref. No. 4/9/5405 comprised and described in CL 3094 (hereinafter referred to as “the property”), being jointly owned by Estate of Ram Deo and Estate of Padma Wati.
  7. Plaintiff during evidence in chief gave evidence that:-
  8. During cross-examination Plaintiff:-
  9. During re-examination Plaintiff:-
  10. Plaintiff called Sarju Prasad of Delai, Labasa, Legal Practitioner (PW1) as his only witness, who during examination in chief gave evidence that:-
  11. During cross-examination PW1:-
  12. During re-examination PW1:-
  13. Defendant Radheshwar Prakash Deo during examination in chief gave evidence that:-

35. During cross-examination Defendant:-


(i) Stated that he has been living in Canberra, Australia for 16 years.
(ii) Agreed that he signed Transfer on 31 October 2014, in Canberra which was after expiry of term in SP Agreement.
(iii) When asked how could he signed Transfer after expiry term he stated that Transfer was given to him by Sarju Prasad’s office in late October 2014, for signing and it was Sarju Prasad’s responsibility to tell him that SP Agreement had expired as such transfer cannot take place but Sarju Prasad never contacted him by phone or e-mail to say that SP Agreement had expired.
(iv) Agreed that he is a public servant, lives in Australia, understands English and understands that SP Agreement had term from 8 October 2014 to 7 October 2014.
(v) Stated that he did not carry SP Agreement all the time and Sarju Prasad should have told him that it had expired.
(vi) When it was put to him that by signing the Transfer he had extended the Agreement he stated that he did not think so.
(vii) Showed copy of his Passport to Plaintiff’s Counsel.
(viii) Stated that he arrived in Fiji for his case on 24 September 2017.
(ix) When it was put to him that when he signed SP Agreement he was to get beneficiaries consent, he stated that assurance was given by Sarju Prasad that he will get everything done.
(x) Stated that he signed SP Agreement as Executor/Trustee and Administrator.
(xi) Agreed that Transmission by Death was registered on 13 August 2014, which is two months prior to expiry of SP Agreement.
(xii) Agreed that TLTB did not give consent before 8 October 2013.
(xiii) Agreed that transferring of property was not a problem for him but was for other siblings.
(xiv) Agreed that he entered into Rental Agreement with Plaintiff.
(xv) Stated that he is left handed.
(xvi) Agreed that on 20 December 2012, he was involved in an accident.
(xvii) Denied that his left hand was injured.
(xviii) Denied that signature on Power of Attorney shown to him was his and stated that he was not aware of the Power of Attorney.
(xix) Stated that when he came to know about the Power of Attorney in Case No. 1/2016, he had to have it revoked.
(xx) Denied that signature on Transfer and Power of Attorney are similar.
(xxi) Denied that transaction did not go through because of disagreement between family about price and value of property.
(xxii) When asked if everyone was happy to transfer, he stated there are five (5) beneficiaries and he cannot talk about anyone else’s view.
  1. During re-examination Defendant:-

Sale and Purchase Agreement


  1. It is not disputed that on 8 October 2013, Plaintiff and Defendant as Executor/Trustee of the Estate of Ram Deo and Administrator of the Estate of Padma Wati Deo, entered into SP Agreement for sale and purchase of the property.
  2. Basic terms of the SP Agreement (Exhibit P3) and relevant to this proceedings are:-
  3. Before proceeding any further, this Court notes Sarju Prasad, Esquire for obvious reasons did not pay much attention to Clauses in SP Agreement for the following reasons:-

40. The main contention about sale of the property are:-


(i) Whether sale was conditional upon Defendant and/or Solicitor Sarju Prasad, Esquire obtaining consent of beneficiaries of the Estate of Ram Deo and Estate of Padma Wati for sale of the property?;
(ii) Whether TLTB consent was not obtained prior to expiry of the SP Agreement on 7 October 2014?;
(iii) Was 12 months term in the SP Agreement extended?
  1. At this point, this Court has no hesitation in holding that Sarju Prasad, Esquire acted as Solicitor for both the parties in respect to the sale transaction. This is evident from the evidence of the Plaintiff, Defendant and Sarju Prasad, Esquire.
  2. There is no express provision in the SP Agreement stating that sale is subject to Defendant as Vendor obtaining consent of beneficiaries of the Estate of Ram Deo and Estate of Padma Wati who were his siblings (one brother and three sisters).
  3. Evidence that is unchallenged is that except for one sister all other beneficiaries gave consent for sale of the property.
  4. Question that needs to be answered is, can terms which state that sale is subject to beneficiaries consent be implied in the SP Agreement.
  5. Plaintiff in his submissions referred to section 11(3) of Succession Probate and Administration Act 1970 which provides as follows:-

“An executor to whom probate has been granted, or administrator, may, for the purposes of administration, sell or lease such real estate, or mortgage the same, with or without a power of sale, and assure the same to a purchaser or mortgagee in as full and effectual a manner as the deceased could have done in his or her lifetime.”


  1. In Singh v. Devi [2015] FJHC 88B; HBC319.2014 (10 November 2015) this Court stated as follows:-

“3.67 Upon grant of Probate or Letters of Administration the real and personal property of the Deceased vests on the Executor and Trustee or the Administrator.

3.68 In this instant Deceased’s properties vested on the First Defendant as Administratrix and as such she has the power to sell or mortgage the Estate property in same manner as Deceased could have done.

3.69 Obviously, if Deceased would have sold his property during his lifetime there was no requirement for him to obtain consent from anyone.

3.70 This does not mean the Executor and Trustees or Administratrix is not bound by his/her fiduciary duty owed to the beneficiaries of the Estate.

3.71 Since, the power of sale of Deceased’s property is derived from s11(3) of SPAA not s23(1) of Trustees Act then there is no need for the Trustees or Administrator of Deceased’s estate to comply with s23(4) of the Trustees Act.

3.72 Section 23(4) of Trustees Act makes it clear that this provision is only applicable if Trustee exercises power of sale under section 23(1) of Trustees Act.

3.73 I hold that Executor/Trustee and Administrator appointed under a Will and Law of Intestacy of a Deceased’s estate exercise his/her power of Sale of Estate property pursuant to section 11(3) of SPAA the specific legislation dealing with Deceased estate and not section 23 of Trustee Act.

3.74 It therefore follows that First Defendant in selling property comprised in Certificate of Title No. 31190 and impending sale of Certificate of Title No. 40858 did not/does not require the consent of the Plaintiff as a beneficiary.

3.75 This view has support in what was said by her Ladyship Madam Justice Shameem (as she then was) in Singh v. Registrar of Titles (supra) when Her Ladyship ruled against requirement by Registrar of Titles for Trustee to provide for Deed of Family Agreement (which is akin to beneficiaries consent) and discharged Caveat lodged by Registrar of Titles.”


  1. Even though Executor of an Estate is not required to obtain consent of beneficiaries to deal with the Estate property, there is nothing stopping the Executor from entering into conditional SP Agreement which makes “consent of beneficiaries” a pre-condition for sale of Estate’s property.
  2. Since, there is no express condition in relation to consent of beneficiaries in the SP Agreement this Court will have to determine if such condition was an implied term of the SP Agreement.
  3. It is well established that a term may be implied in a contract via statute, for business efficiency, or common intention/knowledge of the parties.
  4. In this instance the evidence that points to a common intention/knowledge of the parties, that for sale of the Property to proceed, beneficiaries consent was to be obtained are:-
  5. This Court therefore finds that the term sale of the Property was subject to consent of beneficiaries of Estate of Ram Deo and Estate of Padma Wati is implied in the SP Agreement.
  6. Administration of Property has been vested in iTaukei Land Trust Board prior to parties entering SP Agreement and as such TLTB consent was to be obtained pursuant to Section 12 of iTaukei Land Trust Act 1940 which provides as follows:-

“s12(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his or her lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing affected without such consent shall be null and void, provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease.

(2) For the purposes of this section “lease” includes a sublease and “lessee” includes a sublessee.”


  1. Sale of Property has not been consented to by TLTB prior to expiry of SP Agreement on 7 October 2014.
  2. Plaintiff in his evidence stated that he obtained TLTB consent prior to expiry of SP Agreement but such evidence has not been produced in the form of Application for Consent Form stamped by TLTB or any receipt evidencing payment of consent fee.
  3. Plaintiff withdrew action against TLTB as Second Defendant, but there was nothing stopping him from calling an Estate Officer from TLTB to produce the relevant file and give evidence.
  4. This Court finds that failure to obtain TLTB consent prior to expiry of the SP Agreement made the SP Agreement and Transfer null and void.
  5. Plaintiff alleged and submitted that Defendant entered into an Agreement to extend 12 month period stated in SP Agreement.
  6. Plaintiff out of the blue attempted to introduce the Extension of Agreement document during examination in chief which was rightly objected to by Counsel for the Defendant.
  7. It was quite mischievous on the part of Plaintiff to introduce the purported Extension Agreement when he did not:-
  8. In fact, Defendant in his evidence stated that he did not come to Fiji in 2014, and denied signing any Extension Agreement. This Court accepts Defendant’s evidence that he did not come to Fiji or sign document to extend 12 month period in the SP Agreement.
  9. Plaintiff and Defendant gave evidence that they signed Transfer Document on 8 October 2013, being the date they signed SP Agreement.
  10. On or about 20 October 2014, Sarju Prasad, Esquire sent a fresh Transfer to Defendant in Canberra for signing by him which was signed by Defendant in Canberra.
  11. This Court accepts Defendant’s evidence that he signed the Transfer in erroneous belief that SP Agreement had not expired and Sarju Prasad, Esquire will get all beneficiaries consent.
  12. Mere fact that Defendant signed Transfer does not amount to extension of SP Agreement or save the SP Agreement and Transfer becoming void ab initio for lack of TLTB’s consent.
  13. Plaintiff gave evidence that he obtained TLTB’s consent for the Transfer on 17 October 2014 (Exhibit P5).
  14. Defendant denied signing the Application for Consent to Transfer on 16 October 2014, as he was not in Fiji at that time or at anytime in 2014.
  15. This Court has no hesitation in holding that Defendant was not present in Fiji and he did not sign the Application for Consent to Transfer (Exhibit P5) for the simple reason that, if he was present in Fiji on 16 October 2014, then why was the Transfer sent to him in Canberra for his signature as appears from Exhibit P4 (Transfer signed by Defendant on 31 October 2014, in Canberra).

Power of Attorney


  1. This Court accepts Defendant’s evidence that he did not give Plaintiff any Power of Attorney and he did not sign Power of Attorney which he revoked as soon as he became aware about the Power of Attorney.

Tenancy Agreement


  1. Plaintiff and Defendant gave evidence that they entered into Tenancy Agreement for Plaintiff to occupy the property.
  2. No Tenancy Agreement was produced in evidence.
  3. Also, no evidence was produced to show that TLTB granted consent to the Tenancy Agreement as required under section 12 iTaukei Land Trust Act 1940, which makes any Tenancy Agreement between the Plaintiff and Defendant null and void.
  4. Therefore Plaintiff’s claim for loss of rental paid to Defendant is to be refused.

Damages Claimed by Plaintiff


  1. Plaintiff’s claims for cost of repairs to Defendant’s building which he was occupying.
  2. No evidence has been led, either documentary or otherwise to show what repairs were carried out or value of repairs carried out.
  3. Even if Plaintiff did carry out repairs he had been using the property for his own use and benefit.
  4. Hence, Plaintiff’s claim for repairs is refused.
  5. No evidence has been led on loss from Sale of his outboard engine and twin cab or payment of insurance and as such this claim is refused.
  6. All costs paid by Plaintiff in respect to the transaction was to be paid by him under the SP Agreement and because of the joint SP Agreement has been held as null and void his claim for legal fees, consent fees, valuation cost, cost of preparation of documents, stamp duty and search cost is refused.

Defendant’s Counterclaim


  1. Defendant’s counter-claim for rent under Rental Agreement is refused on the ground that Agreement is void for lack of TLTB consent.
  2. No evidence has been led to prove to Court that Plaintiff has used the property for repairing works and storage.
  3. No evidence has been led to prove the extent of damage to the fence and cost of repairing the fence or the concrete wall.

Conclusion


  1. This Court finds that:-
  2. This Court holds that:-

Costs


  1. This Court takes into consideration that trial listed for two (2) days, both parties filed Submissions and both Statement of Claim and Counter-claim is not successful.

Orders


  1. I make following Orders:-

K. Kumar

Acting Chief Justice


At Labasa

11 June 2020


Tadrau Legal for Plaintiff

Maqbool & Co. for Defendant


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