BETWEEN:
1) AUTWARI BHAGAT
(f/n Bhawani Bhik)
2) MAHENDRA KUMAR PRATAP
(both sons of Shyam Bhagat)
3) DINESH KUMAR
APPLICANTS/APPELLANTS
AND:
RAM CHANDRA
(f/n Ram Baran)
RESPONDENT
Mr V. Maharaj for the Applicants/Appellants
Mr V. Kapadia for the Respondent
Date of Hearing: 15 June 1995
Delivery of Decision: 26 June 1995
DECISION
(Chamber application for a stay order)
The Applicants are seeking a stay of execution of an Order of vacant possession made on 22 March 1995 by the Suva High Court (Scott
J.), pending the determination of an appeal to the Court of Appeal filed on 2 May 1995 against the said Order, or the determination
of the appeal to the Central Agricultural Tribunal filed on 4 January 1995.
For the purpose of this application there are now only 2 Applicants - Autwari Bhagat (1st named Applicant) and her son Dinesh Kumar
(the 3rd named Applicant). The 2nd Applicant has vacated the land and has withdrawn from this proceedings. But for ease of reference
I will continue to refer to Dinesh Kumar as the 3rd Applicant.
The 1st Applicant, Autwari Bhagat, has filed an affidavit in support of this application on behalf of herself and her two sons. A
comprehensive affidavit in opposition has also been filed by the Respondent. Both parties have made written submissions.
It is important to set out the relevant facts as well as the sequence of events in this case.
The Respondent is the registered proprietor of Crown Lease No. 192868 situate in Navua and has been so registered since 10 July 1992.
It is a protected agricultural lease containing almost 3 acres of land.
The Respondent is the son of the 1st Applicant's brother-in-law Ram Baran who died in 1966. In the intervening period the estate was
managed by the Public Trustee.
On 21 September 1992 the Respondent gave notice to the Applicants to quit and deliver vacant possession of the said property. The
notice expired on 29 September 1992 but the Applicants failed to quit.
The 1st Applicant has been living on the land in question with her children since 1965. She came onto the land with her 4 children
after she was evicted from the house she was previously occupying. This was under a family arrangement with Ram Baran. The 3rd Applicant
was born on the land in 1966.
On 25 February 1993 the Respondent filed an application in the Suva High Court under Section 169 of the Land Transfer Act seeking a summary order of possession against the Applicants on the ground that the Applicants were squatters and were illegally
occupying the land in question. By consent proceedings were stayed to await the outcome of an application by the Applicants for a
declaration of agricultural tenancy by the Agricultural Tribunal. The application to the Agricultural Tribunal was made after the
Respondent instituted proceedings in the High Court under S.169.
On 17 November 1994 the Agricultural Tribunal rejected the application and declared, inter alia, that the 1st Applicant was a squatter
and that the Applicants were not bona fide farmers who should be protected under Section 4(1) of the Agricultural Landlord &
Tenant Act.
The application under Section 169 was then heard by Scott J. on 13 March 1995 at the request of the Respondent. The Applicants asked
that the proceedings be stayed pending an appeal to the Central Agricultural Tribunal.
On 22 March 1995 Scott J. dismissed the Applicants' request for a stay and granted the order for vacant possession.
On 23 March 1995 the Applicants filed a further application to the Central Agricultural Tribunal seeking a stay of the decision of
the Agricultural Tribunal. This application was heard by Mr Justice Saunders as the Central Agricultural Tribunal, and he dismissed
the application with costs on 30 March 1995. In dismissing the application Saunders J. observed -
"I note that the Appellants did not make the original application to the Tribunal until after the Respondent had taken legal
action to have them evicted, and that they did not lodge their appeal against the finding of the Tribunal until after the High Court
had made the Sec. 169 order against them."
On 4 April 1995 the Respondent caused a writ of possession to be issued against the Applicants.
On 11 April 1995 the Applicants applied to the High Court for the execution of the vacant possession order to be stayed pending determination
of "this appeal". The application was supported by the 1st Applicant's affidavit. The Notice of Appeal was in fact not
filed until 2 May 1995.
On 25 April 1995 the Respondent filed an affidavit in opposition.
On 25 April 1995 Scott J. heard the application to stay and reserved his decision.
On 2 May 1995 the Applicants filed an appeal to the Fiji Court of Appeal against the order of possession as well as the refusal by
Scott J. to stay proceedings pending hearing of an appeal to the Central Agricultural Tribunal.
On 8 May 1995 Scott J. delivered his reserved decision. He declined to make the stay of execution order and gave his reasons for doing
so.
On 18 May 1995 the Applicants applied to a single Judge of the Court of Appeal to stay the order for vacant possession made on 22
March 1995 pending determination of their appeal to the Court of Appeal or the appeal before the Central Agricultural Tribunal.
On 2 June 1995 when the application came before me for hearing Mr V. Kapadia indicated that his clients were opposing the application
and that he was ready to file a comprehensive affidavit in opposition straightaway that morning. Mr S. Chandra for the Applicants
indicated he wished to have an opportunity to reply to the affidavit in opposition. The matter was then adjourned to 15 June 1995
to allow time for the affidavits to be filed and served.
In the case before me the Applicants are the unsuccessful Defendants in the High Court having been the unsuccessful Applicants to
the Agricultural Tribunal. The Respondent was the successful party in both instances. It has been said again and again that Courts
do not make it a practice to deprive a successful litigant of fruits of his success. On the other hand it is now recognised that
where an unsuccessful litigant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for
granting the application that the Applicant is able to satisfy that without a stay of execution he or she will be ruined or the appeal
will be rendered totally nugatory, and that he or she has some prospect of success. (See Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887.) In my view the first question that should be asked in this case is - "What are the prospects of the appeal to the Court of Appeal or the Central Agricultural Tribunal succeeding?"
Briefly the Applicants say that -
(a) issues of estoppel and equitable ownership were not considered,
(b) that they had an interest in the land capable of supporting a declaration of tenancy,
(c) that the delay that an appeal to the Central Agricultural Tribunal may cause was wrongly used to deny a stay of High Court proceedings.
Grounds (a) and (b) are inter-connected.
With regard to estoppel and equitable interest it is the Respondent's contention that these issues were never raised before Scott
J. in the S.169 proceedings. Nevertheless Scott J. referred to them when dealing with the stay application lodged on 4 April 1995.
In the course of his decision on the stay application, delivered on 8 May 1995, Scott J. stated as follows:
'....Citing Gurdial Singh v. Chandra Hans (Lautoka Supreme Court 737/83) Mr. Chandra suggested that the evidence showed that all four operational conditions for the estoppel
to apply, as set out on page 5 of the Judgment, were to be found in this case. I must, with respect disagree.
The first condition is that "the person claiming must have incurred expenditure or otherwise have prejudiced himself or acted
to his detriment" (see Greasley v. Cooke [1980] 1 WLR 1306). In this case the 1st Defendant planted a few fruit trees and shrubs which is no more than any sensible person having a garden would
do and, as can be seen from the photograph, Exhibit A, to the affidavit filed in answer to this Application on 25 April, either built
or added to a simple, rudimentary and transportable home on the land. Both the steps and the expenditure involved were clearly for
the benefit of the 1st Defendant. How it could be said that she acted to her detriment I fail to see.
The second condition requires the Defendant "to have acted in the belief either that he already owned a sufficient interest in
the property to justify the expenditure or that he would obtain such an interest". In view of the fact that this land was held
under a protected lease I cannot see how such belief could possibly be advanced. The remaining two conditions need not be considered.'
The Applicants are relying for their "tenancy" or right to remain in possession of the land on a special piece of legislation
in particular Sections 4 and 5 of the Agricultural Landlord & Tenant Act Cap. 270 (ALTA). The relevant parts of Sections 4 and
5 are as follows:
"(4).-(1) Where a person is in occupation of, and is cultivating, an agricultural holding and such occupation and cultivation
has continued before or after 29 December 1967 for a period of not less than 3 years and the landlord has taken no steps to evict
him, the onus shall be on the landlord to prove that such occupation was without his consent and, if the landlord fails to satisfy
such onus of proof, a tenancy shall be presumed to exist under the provisions of this Act:
.....
(2) Where payment in money or in kind to a landlord by a person occupying any of the land of such landlord is proved, such payment
shall, in the absence of proof to the contrary, be presumed to be rent.
(5).-(1) A person who maintains that he is a tenant and whose landlord refuses to accept him as such may apply to a tribunal for a
declaration that he is a tenant and, if the tribunal makes such a declaration, the tenancy shall be deemed to have commenced when
the tenant first occupied the land:
Provided that rent shall only be recoverable where the tribunal is satisfied that it is just and reasonable so to order. (Substituted
by 35 of 1976, s. 3.)
....."
ALTA was enacted to provide security of tenure and regulate relations between landlord and tenants of agricultural holdings. The Agricultural
Tribunal created under it takes cognisance, where relevant, of Sections 4 and 5 e.g. when dealing with an application for a declaration
of tenancy or of S.22 with regard to relief against eviction. The Agricultural Tribunal is in fact a specialist body whose findings
ought not to be lightly ignored.
Whilst it is not my function to delve into the actual merits of the appeal I have nevertheless had an opportunity to peruse the decisions
of Scott J. and the Tribunal. Prima facie the Tribunal's decision appears to be well reasoned and is essentially based on findings
of fact. Scott J. had the Tribunal's decision before him. This is what he said in the course of his judgment delivered on 22 March
1995:
"In the present case the Agricultural Tribunal rejected the Defendants' Application because it made a finding of facts. Having
heard the evidence and seen the witnesses the tribunal concluded that the 1st and 3rd Defendants were not bona fide farmers (Mr. Chandra made an attempt to convince me that the
Agricultural Tribunal only made a finding in respect of the 1st Defendant but having studied the Judgment carefully I am satisfied
that this is not the case).
As is well known an Appellate Tribunal is slow to reverse findings of fact made below and it seems to me, having seen the record of
the proceedings in the Agricultural Tribunal and having also considered the grounds of appeal filed that the Defendants' chances
of success in the Central Agricultural Tribunal are not especially high.
Weighing up the interests of both sides I am of the view that there is a greater chance of injustice if I adjourn these proceedings
again. In the circumstances of this case therefore I answer the first question in the negative."
With regard to the contention that Judge Scott ought to have further adjourned the S.169 application to await the Applicants' appeal
to the Central Agricultural Tribunal I am of the view that this ground has very little, if any, merit in it.
Again, prima facie, the learned Judge had sound reasons which he spelt out, for refusing a further stay of the S.169 proceedings,
namely -
(i) An application to either Agricultural Tribunal or indeed the Central Agricultural Tribunal should not be used as a devise to deny
or indefinitely delay legal owners from enjoying their right to possession and use of their land (Vinesh Gir v Roshni Devi (FCA 60/86)).
(ii) The Applicants' chances of success in the Central Agricultural Tribunal were not especially high.
The learned Judge then went on to discuss whether the Applicants had discharged the onus that rested on them under the Land Transfer Act.
He held that they had not demonstrated any right to their continued possession of the land claimed by the Respondent. (See Section
172 of the Land Transfer Act.)
Again prima facie Scott J. had with respect a solid basis for coming to the conclusion he did.
Having reviewed all the affidavit evidence before me and bearing in mind the arguments addressed by Counsel for the opposing parties
I am inclined to the view that the prospects of the Applicants succeeding either in the Central Agricultural Tribunal or in the Court
of Appeal are minimal. The Agricultural Tribunal findings that the Applicants are not bona fide farmers are very relevant. The 1st
Applicant is over 75 years of age and the 3rd Applicant is working full time for the Public Works Department. In coming to my view,
I have not overlooked the provisions of Sections 4 and 5 of the Agricultural Landlord & Tenant Act Cap. 270 (ALTA) which tend
to place certain onus on the registered proprietor and prescribes certain presumptions in favour of an applicant for a declaration
of tenancy. Whilst the Applicants in this case could not be characterised as squatters until the notice to quit expired they clearly
could not establish any right to remain on the land after notice insofar as the S.169 proceedings were concerned.
Over the past 3 years the Respondent has obtained 4 judgments or decisions in his favour as outlined in the chronology of events.
The next aspect to consider is the consequence to the Applicants if they are obliged to give up possession now but succeed in their
appeal(s) later.
If the Applicants were to give up possession I do not think it can be said that they will be ruined if they succeed in their appeal(s).
They certainly have somewhere to go. Nor will their appeals be rendered nugatory if they succeed in their appeal(s) bearing in mind
that the Respondent has undertaken not to dismantle the house on the land until such time as a decision is reached by the Court of
Appeal. Alternatively the Respondent has offered to allow the Applicants to remove the whole of the house for their own benefit.
In all the circumstances the Respondent as the legal owner of the land will, in my view, suffer greater injustice if he were to be
indefinitely estopped from gaining possession of his land. There is at present no indication when the appeals will be heard. The
unsuccessful party in the Central Agricultural Tribunal will be entitled to appeal to the Fiji Court of Appeal with the potential
of causing further delay.
The terms on which I intend to reject the application before me will ensure that a successful appeal will not be rendered nugatory.
The Applicants will certainly not be left in ruins, so to speak.
I, therefore, make the following orders -
(1) 2nd Applicant's request to withdraw from these proceedings granted and his application for a stay order is wholly dismissed.
(2) 1st and 3rd Applicants' application for a stay order pending appeals dismissed subject to the following terms -
(i) The Respondent not to execute the writ of possession for 60 days from the making of this order.
(ii) The Respondent shall not, without the leave of the High Court, sell Crown Lease No. 192868 before the decision of the Central
Agricultural Tribunal or the Fiji Court of Appeal whichever is the first.
(iii) If the 1st and 3rd Applicants give up possession voluntarily within 60 days from the making of this order they will be entitled
to dismantle and remove the whole of the house at their own cost.
(iv) If they do not voluntarily give up possession and remove the house within 60 days the Respondent shall not dismantle the house
but sheep it under lock and key tkey to await the decision of the Central Agricultural Tribunal or the Fiji Court of Appeal, whichever
is the first.
(v) 1st and 3rd Applicants to be at liberty to harvest and remove within 60 days any seasonal crop on the land which they may have
planted, but shall not cut down any fruit trees or other trees growing permanently on the land.
(3) Liberty reserved to either party to apply generally.
(4) The costs of this application shall be borne by all 3 Applicants.
The effect of my decision is that the Respondent will be at liberty to execute the writ of possession upon expiry of 60 days but subject
to the terms imposed.
Sir Moti Tikaram
President, Fiji Court of Appeal
Abu0030d.95s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJCA/1995/14.html
