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Sankaran v Goundar [2021] FJHC 140; HBA11.2017 (25 February 2021)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBA 11 of 2017

BETWEEN:

SHIVA SANKARAN of Wairuku, Rakiraki

APPELLANT

A N D:
KAMLESH GOUNDAR of Wairuku, Rakiraki, Farmer

RESPONDENT

Appearances: Mr. Vakacakau for the Appellant/Applicant
: Ms. Anishni Chand for the Respondent/Respondent
Date of Hearing: 11 February 2021

Date of Ruling: 25 February 2021

R U L I N G

1. Before me a Notice of Motion To Reinstate filed pursuant to Order 32 Rule 5(4) of the High Court Rules 1988 and pursuant to the inherent jurisdiction of the Court.
   
2. The application was filed on 17 December 2020 by Falcon Chambers. It is supported by an affidavit sworn on 04 September 2020 by Shiva Shankaran in Auckland, New Zealand.
   
3. This matter has had a rather chequered history. It concerns an appeal from a decision of the Magistrates Court in Rakiraki.
   
4. Following the filing of the relevant appeal documents in the High Court, the matter was mentioned on several occasions spanning close to or a little over a year without any appearance by the Respondent on account of want of service.
5. There were also occasions when the applicant did not appear, I gather, because issues regarding his Practicing Certificate.
   
6. The claim at the Magistrates Court concerned a Sale and Purchase Agreement (which was tendered in evidence in the Magistrates Court) entered into between the Plaintiff and the Defendant whereby the Defendant as vendor agreed to sell to the Plaintiff his freehold property for $15, 000. 00. No regulatory consent was required for the dealing.
   
7. The Plaintiff allegedly paid the Defendant $8,200-00 (eight thousand and two hundred dollars only) as deposit in accordance with the Agreement.
   
8. As it happened, there was a falling out between the parties and the deal collapsed.
   
9. In the proceedings below, the Plaintiff was trying to recover the deposit he had paid, plus interest. The total claim was $14, 924.75.
   
10. At the trial of the case, only the plaintiff Shiva Shankar gave evidence. He said that the agreement was frustrated because of access issues. The land which was the subject-matter of the agreement was to be carved out of a larger piece of land which belonged to the estate of the defendant’s late father, Narayan Sami Gounder. The defendant is the personal representative of the estate. Under the Agreement, the defendant was to handle all the formalities regarding the partial surrender of the land in question and the sub-division. However, he could not complete that because an access proposed for the sub-division project affected the parcel of land which the defendant’s brother, who is also a beneficiary of the estate, was occupying.
    
11. The plaintiff gave evidence that he had written letters to the defendant from 2007 to either comply with the agreement or refund him the money but to no avail.
    
12. There was some cross-examination which suggested to the plaintiff that he was the party in breach and that he, accordingly, had forfeited the deposit paid to the defendant.
    
13. The relevant forfeiture clause was pointed out to the plaintiff who appeared to agree. However, the plaintiff’s claim to entitlement to the refund of the deposit stems from a subsequent agreement orchestrated by the plaintiff’s lawful attorney whereby the defendant purportedly committed himself to refund the plaintiff the deposit paid.
    
14. I note that there was no re-examination.
    
15. At the end of the plaintiff’s case, the defendant’s counsel indicated in court that he would file submissions to non-suit the plaintiff. He did file submissions raising various things including the allegation that the claim was statute barred under the Limitation Act. There were also submissions raised questioning a second agreement purportedly entered into between the plaintiff’s lawful attorney and the defendant in front of some village elders. The effect of this purported second agreement was that the defendant would acknowledge his obligation to return the deposit to the plaintiff which, under the agreement, the plaintiff had forfeited.
    
16. The Plaintiff agreed that the defendant had not raised any jurisdictional issue or objected to the jurisdiction of the court. It is interesting that the Learned Magistrate did not address any of the issues raised in his ruling. Instead he simply dismissed the claim on account of the fact that the Applicant had not stated in his Writ of Summons a clause to limit the jurisdiction of the Court to within the monetary jurisdiction of the Court.
    
17. The appellant further stated that the claim was for a liquidated sum of $14,924.75 plus solicitors costs which is quantified in the claim and which amounts to $115-00.
    
18. There is no claim for interest.
    
19. I would grant leave for the Reinstatement. For the avoidance of doubt, I am reinstating the appeal rather than the Motion to Reinstate the Appeal which itself was struck out.
    
20. After reinstatement, the same issues raised will have to be rehashed together with the merits of the appeal and also the matters raised in the submissions in the Court below which the Learned Magistrate conveniently overlooked.
    
21. I think the Respondent is entitled to some costs which I summarily assess at $500-00 (five hundred dollars only).
    

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Anare Tuilevuka

JUDGE

Lautoka

25 February 2021