IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 4 OF 1987

BETWEEN:

STATE

v.

CENTRAL AGRICULTURAL TRIBUNAL AND
VELIAMMA, VELIAMMA AND PON SAMI

EX-PARTE:

DHARAM LINGAM REDDY
s/o MUTTAP REDDY
of Tagi Tagi, Tavua, Cultivator

Mr. V.M. Mishra for the Applicant
Dr. M.S. Sahu Khan for the Respondents

Dates of Hearing: 23rd June, 1993, 2nd and 17th June 1994
Date of Interlocutory Judgment: 9th November 1994

INTERLOCUTORY JUDGMENT

The facts and history of this case are set out in the judgments of the Agricultural Tribunal of 3rd September 1985, the judgment of the Central Agricultural Tribunal of 13th November 1986, the judgment of Scott J. of 14th April 1992 and the judgment of the Court of Appeal dated 21st May 1993 and I shall not repeat them here in any detail.

That history indicates at least one thing very clearly that this case has not proceeded with any reckless celerity over the years since the matter was first taken to the Agricultural Tribunal in 1985.

Presently before the Court is a Summons by the Applicant seeking leave to amend his Motion dated 20th of January 1987 for Judicial Review by adding six further grounds on which certiorari and other relief are sought. I do not intend to set out here the proposed amendments and other relief sought. It suffices to say that the Applicant wishes to allege that the Central Agricultural Tribunal made various errors of law and exceeded his jurisdiction in declaring the tenancy declared by the Agricultural Tribunal null and void and making an order for compensation under Section 18(2) of the Act and holding that Exemption 5 of the Agricultural Landlord and Tenant Regulations applied.

The matter comes before me as a result of the decision of the Court of Appeal of 21st May 1993 which upheld the Applicant's appeal from a decision of Scott J. of 14th April 1992 not to grant the Applicant Judicial Review on the ground that in view of the delays that had occurred the Court should not proceed to hear the Application at all.

In addition Scott J. had taken into account the fact that the land in question was transferred to third parties on the 4th of April 1987 so that the Respondents were no longer the registered owners of the land at the time of the hearing of the application.

The Applicant appealed against this decision on the principal ground that the trial judge had erred in law in not allowing the application to proceed to trial on the merits of the case. The Court of Appeal upheld this argument.

The Motion presently before me seeks not only to add further grounds on which Judicial Review is sought but also to amend the title of the action and to allow certain affidavits to be used in the hearing of the Judicial Review and leave to file a further affidavit.

The application is opposed by the Second Respondents but it would appear not seriously in respect of the application to amend the title of the proceedings.

I have no hesitation in allowing the amendment to the title which is a minor matter and does not make the proceedings defective.

Next the Second Respondents submit that there are no valid proceedings before the Court as the leave granted by Rooney J. on 11th February 1987 has lapsed.

I do not accept this submission. The order of Mr. Justice Rooney giving leave to review the decision of the Central Agricultural Tribunal was made on the same day as the Originating Motion pursuant to Order 53 Rule 5 of the High Court Rules was issued. Rule 5 allows a period of fourteen days in which to issue a motion for Judicial Review once leave has been granted.

All the Respondents were served and the Second Respondents entered an unconditional Appearance through the same solicitors who represent them now Messrs Sahu Khan and Sahu Khan.

In these circumstances the Respondents cannot be heard to argue now that the proceedings have not been legitimately commenced nor they have been prejudiced in any way. The only omission by the Applicant was that his former solicitors did not name the Respondents as Respondents.

The present amendment sought by the Applicant is to correct the formal heading of the action and nothing more.

Here it is relevant to note that Mr. Justice Rooney in granting leave ordered to be stayed 'all further actions or proceedings' to implement the order or decision of the Central Agricultural Tribunal. In fact the Second Respondents have transferred the property the subject of the proceedings to third parties.

This appears to be contrary to the decision of the Court of Appeal in Soma Raju v. Bhajan Lal [1976] 22 FLR 163 in which the Court held that an Agricultural Tenancy will prevail against the registered title and the indefeasibility provisions of the Land Transfer Act.

The Respondents submit that my brother Scott at the original hearing rightly took into account the delay in prosecuting this application and the hardship it would create on third parties. However the Court of Appeal held that Scott J. was wrong in so ruling and found that Order 53 Rule 4 on which Scott J. relied did not apply to the present proceedings. The Court of Appeal said that Rule 4 only applied where there was undue delay in making an application for Judicial Review whereas in the present case the application had been made within the three months period for leave and the substantive application was filed on the same day as the grant of leave.

It therefore follows that the Respondents now cannot canvass the decision of Scott J. on this point.

Likewise the argument of the Respondents that the Court must give effect to the spirit of Order 53 Rule 4(1) and refuse leave to amend the grounds as this would be 'detrimental to good administration' again appears to be an attempt to avoid the decision of the Court of Appeal and I consider it would be improper for me now to express any opinion on it.

The Respondents next argue that the proposed amendments should not be allowed as to do so would deprive the Respondents of a defence available to them under the Limitation Act. It is true that where a party may be deprived of a defence available to him under the Limitation Act the Court may in its discretion refuse to allow amendments to the pleadings which would deprive one party of the benefit of a defence based on the Limitation Act. In Steward v. North Metropolitan Tramways Company (1886) 16 QBD 556 the Court refused to allow the Defendants to amend their defence, because the Plaintiff could not be placed in the same position as if the Defendants had pleaded correctly in the first instance.

Lindley, L.J. said this at p.559:

"I think an amendment ought always to be allowed, except when the other party cannot be placed in the same position, but an injury would be occasioned to him by the amendment which could not be compensated by costs."

In the present case however in my view the Respondents will not suffer any prejudice if the amendments are allowed. As I see it the proposed amendments merely seek to add further grounds on which Judicial Review should be granted; in effect, to bring the issues into sharper focus so that the Court on the substantive hearing will be able to have the issues more clearly before it.

The Applicant does not deny that there have been substantial delays but the material does not satisfy me that these were wholly the fault of the Applicant. There is evidence in correspondence between the Applicant's solicitors and the Chief Registrar of this Court requesting an early hearing of the case. The main reason for the delay appears to have been the long time the Central Agricultural Tribunal took to prepare a record of the proceedings, and this clearly was no fault of the Applicant.

Whilst one can sympathise with the argument of the Respondents, as Scott J. did, nevertheless the fact is that the Court of Appeal has held that the trial judge erred in law in not allowing the application to proceed to trial on the merits of the case.

This seems to me to be the paramount consideration in deciding whether or not I should allow the proposed amendments and the filing of the further affidavits. As Jenkins, L.J. put it in G.L. Baker Ltd. v. Medway Building & Supplies Ltd. (1958) 1 W.L.R. 1216 at p.1231:

"It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made 'for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings'."

In my judgment therefore the proposed amendments should be allowed but before concluding this judgment I note the almost cri de coeur of the Court of Appeal at p.8 of its judgment when the Court said:

"We only hope that instead of pursuing a course which seems to have an endless vista of litigation as an outlook we hope that the parties will be able to reach some compromise that will obliterate this ghastly prospect."

With respect I would add my own voice to that of the Court of Appeal and earnestly ask the parties to seriously consider the problems involved in this case and try sincerely to effect some compromise. Failure to do so will only result in even further delays and inconvenience the prospect of which as the Court of Appeal said can be only described as "ghastly".

The order of the Court is therefore that the amendments to the application for Judicial Review namely the further grounds on which certiorari and other relief are sought as set out in the Applicant's Summons of 23rd June 1993 are allowed.

The Applicant is also given leave to use the affidavits of Armogam Achari sworn on the 7th of November 1990 and 27th of March 1992 in support of the application. Costs will be in the cause.

JOHN E. BYRNE
JUDGE

Cases referred to in judgment:

(1) G.L. Baker Ltd. v. Medway Building Supplies Ltd (1958) 1 W.L.R. 1216.
(2) Soma Raju v. Bhajan Lal [1976] 22 FLR 163
(3) Steward v. North Metropolitan Tramways Company (1886) 16 QBD 556.

The following additional cases were referred to in argument:

(1) Baldeo v. Nur Mohammed [1960] 7 FLR 105
(2) Carpenters v. Ram Jeet F.C.A. No. 19 of 1991.
(3) Castro v. Murray (1875) 10 Ex.213.
(4) Clarapede v. Commercial Union Association (1883) 32 W.R. 262.
(5) District Administrator v. Sadiq 8 F.L.R. 217.
(6) Green v. Kursaar (1937) 1 All E.R. 732.
(7) Hadkinson v. Hadkinson (1952) 2 All E.R. 567.
(8) Haggard v. Pelicer (1892) A.C. 68.
(9) Hipgrave v. Care (1885) 28 Ch.D. 356
(10) Hilton v. Sutton (1945) 2 All E.R. 425.
(11) James v. Smith (1891) 1 Ch.384.
(12) K.R. Latchan Bros. Ltd. v. Sunbeam Transport Ltd. F.C.A. 45, 51, 57 and 61 of 1983.
(13) Laucaster v. Moss 15 T.L.R. 476.
(14) Lausa v. Heaven (1889) 41 Ch.D. 248.
(15) Moss v. Mailings (1886 33 Ch.D.603.
(16) O'Reilly v. Mackman (1982) 3 All E.R. 1124.
(17) Re Racal Communication (1980) 2 All E.R. 638.
(18) Reichel v. Magrath 14 App. Cas 665.
(19) R. v. Registrar of Companies (1985) 2 All E.R. 79.
(20) R. v. Panel on Take-Over (1987) 1 All E.R. 564.
(21) Supreme Court Practice (1967) P.275.
(22) Tildesley v. Harper (1876) 10 Ch.D. 393
(23) Weldon v. Neal 19 Q.B.D. 394.
(24) Wilkinson Ancliff Ltd. (1986) 3 All E.R. 427.
HBJ0004D.87S