Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Pandey v Chandra [2002] FJHC 311; HBC100.2001L (6 September 2002)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 100 OF 2001L

BETWEEN:

CHANDRIKA PRASAD PANDEY
Plaintiff

AND

SUBHAG CHANDRA
Defendant

Mr. V.P. Mishra for the Plaintiff
Dr. M.S. Sahu Khan for the Defendant

Date of Hearing: 24 July 2001
Date of Judgment: 6 September 2002

JUDGMENT

The parties dispute the length of an agricultural lease. What was the length of the original lease, and more particularly, what was the length of the extension as provided for under the relevant legislation?

On 27th March 2001 the Plaintiff filed a writ endorsed with a statement of claim seeking an injunction restraining the Defendant from interfering with his rights of possession and occupation of the land in question, a 6 acre agricultural lot CT24339, at Nasoso, Nadi.

He also sought an injunction restraining the Defendant from uplifting monies, the proceeds of cane farming from the land, retained with the Fiji Sugar Corporation Limited. He sought judgment for the cane proceeds already uplifted, and damages for loss of profit and trespass, and for costs.

At the same time he filed an ex parte motion of the same date seeking two orders:

(i) The Defendant and/or his servants and/or his agents be restrained from uplifting any cane proceeds under Farm No. 1589 Natova Sector from the Fiji Sugar Corporation Limited or under any security from any Bank or otherwise until further order of the Court.

(ii) An injunction restraining the Defendant from in anyway interfering with the Plaintiff’s occupation, cultivation and enjoyment of the six acres previously subject of the tenancy declared by the Agricultural Tribunal Mr. Farrow until further order of the Court.

The Plaintiff himself filed an affidavit sworn on 27 March 2001.

He was granted an interim order that day for the first order (i) restraining the uplifting of cane proceeds, and the matter was to come on inter partes after the filing of affidavits in opposition and in reply. The Defendant swore an affidavit in opposition which was filed on 23 April 2001, together with his defence. Eventually the matter was listed for hearing on 24 July 2001.

The Facts

The Plaintiff exhibited to his affidavit a copy of the Agricultural Tribunal’s decision of 21 March 2001. The Tribunal [P.R. Lomaloma Esq.] dismissed the Defendant’s application wherein he sought an extension of another 20 years under ALTA. The Tribunal found that “the applicant has had his entitlement to an extension under Section 13(1) and that tenancy expired on 31 December 1998 and he has no further right to another extension”.

Apparently the Plaintiff had originally leased 10 acres of the land to the Defendant’s mother, Bansraji for a term of 10 years commencing on 1 January 1965. Bansraji died in 1977. On 16 August 1979 the Defendant and the Defendant’s father, as sole beneficiary and trustee and executor for the estate respectively, filed an application with the Agricultural Tribunal for a declaration that they were the tenants of the land. The application was eventually settled by the parties. Terms of Settlement were drawn up and formed a consent order of the Tribunal [C.R.H. Farrow Esq.] of 17 October 1979. The terms were:

(i) The applicants agree to give up possession of 4 acres out of 10 acres to the respondent so that the remaining 6 acres shall extend from the boundary between Lot 3 and Lot 4 of DP 4497 to a line parallel to such boundary.

(ii) The respondent shall extend the existing contract of tenancy subject to the variation as set down in paragraph 1 to the late tenant’s successor in title, Subhag Chandra, for a term of twenty years from 1st day of January 1979 in terms of section13 of the Agricultural Landlord and Tenant Act .........

(iii) The parties hereto agree to undertake to do all things necessary to the transferring and varying of the Cane Contract ..... standing in the name of Bansraji deceased, d/o Sukhai, to the said applicant Subhag Chandra and

shall sign and execute all documents relating to the variation of the said contract in favour of Subhag Chandra and any proposed contract for the balance 4 acres of land in favour of the respondent.

After correspondence between the parties solicitors, the instrument of tenancy was eventually executed on 27 January 1983. The subsequent Tribunal recorded in his judgment (p 2):

“Counsel for both sides conceded that the facts of the case are not in dispute and both agreed that the instrument did not create a new tenancy where none existed before. The only issue before the Tribunal was whether the 20 year extension in the settlement, which expired on 31st December 1998 was an extension under ALTO or whether it was an extension under ALTA. If it was an extension under ALTO, then Counsel for the Applicant [the Defendant] submits that his client would then be entitled to a further extension of 20 years under section 13 (1) of ALTA. The respondent [the Plaintiff] maintains however that the settlement of 17 October 1979 was an extension under section 13 (1) of ALTA and therefore the applicant is no longer entitled to a further extension.

Section 13 (1) of ALTA reads:

“Subject to the provisions of this Act relating to the termination of a contract of tenancy, a tenant holding under a contract of tenancy created before or extended pursuant to the provisions of this Act in force before the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976, [1 September 1977] shall be entitled to be granted a single extension (or a further extension, as the case may be) of his contract of tenancy for a period of twenty years, unless ...........”

The remaining provisions of section 13(1) are not relevant to this application.

The Tribunal then went on to consider the meaning and intention of the parties by clause 2 of the consent order before Mr. Farrow. He said:

“The clear meaning of clause 2 of the settlement is that whatever type of tenancy existed in 1979 between the parties should be extended by 20 years in terms of section 13 of ALTA with effect from 1ST January 1979.”

He concluded:

“There are no contradictory words or expressions in the clause and there is absolutely nothing in the settlement to give proof that the parties intended that the “existing tenancy” should be extended by 20 years under ALTO. If it was the intention of the parties that the extension should be a twenty-year extension under ALTO from 1975, they could have and should have clearly stated it in the settlement but they did not do so. Both parties were represented by counsel prior to and at the settlement. I therefore hold that the clear intention of the parties in the settlement of 17th October 1979 was that the lease be extended pursuant to section 13 (1) of ALTA for 20 years from 1st January 1979.”

Was it an ALTO or an ALTA Extension?

In the brief judgment of Mr. Farrow, the earlier Agricultural Tribunal, of 17.10.79, the application is referred to as one “for a declaration by the Tribunal that the Applicants are tenants under the provisions of the Agricultural Landlord and Tenant Act ..........” The application therefore was not specifically for an ALTA extension. Clause 2 of the consent order refers to both an extension and a variation of the Contract of Tenancy. Of course the tenant is no longer Bansraji. It was agreed her son, the present Defendant, would be given the lease. Similarly the tenancy was to be over a lesser land area, that is over 6 rather than 10 acres.

The situation was similar to that in Bal Ram Pande and Anor. v Jai Ram Singh & Anor. (unreported) Court of Appeal, Civil App. No. ABU0032 of 1996; 22 August 1997, where it was said at p 7:

“By the time the instrument was executed in 1990, this period had expired and so it was submitted by the appellant that the agreement must have been for the original term of 10 years together with an extension of 10 years.

We cannot accept this suggestion. The Central Agricultural Tribunal declared a tenancy existed and it became necessary to draw up an instrument of tenancy. Had an agreement in the same terms as the instrument of July 1990 been drawn up at the time of the Central Tribunal’s declaration, it would clearly have been a tenancy for 20 years. No implied term would have been necessary to read it as such and, at the completion of the 20 year tenancy, the right to extend for 20 years under s.13 would have been available.

It is correct, as the appellant points out, that the agreement was not executed in fact until more than 10 years had expired but what s.6 prescribes is a minimum term of 10 years. There is nothing in the Act to stop agreements for longer periods and the wording of the instrument drawn up in 1990 makes it plain the parties intended the tenancy to be for a period of 20 years commencing on 29 January 1974.”

In the instant case the declaration of tenancy followed a period of 4 limbo years and the first extension commenced not on the day after the expiry of Bansraji’s lease, 1st January 1975, but from 1st January 1979.

Section 15 of ALTA provides the following safeguard for the tenant:

“A provision in any contract of tenancy whereby the tenant purports to contract himself out of the provisions of this Act or the effect of which would be to contract the tenant out of any of such provisions shall be against public policy and void.”

If therefore the tenant had an entitlement to an extension under ALTO and to a further extension under ALTA it is unlikely he would lose such entitlements by a purported contracting out : Venkatamma & Anor. v Ferrier-Watson and 2 Others [1995] 41 Fiji L.R. 258, a Supreme Court decision, at p 264-5 where it was said:

“It is clear that by making an order by consent the Agricultural Tribunal could not endow the parties with capacity to make a contract outside the scope of s.44 and in breach of the prohibition against contracting out in s.15.”

In that sense there is a serious question to be tried. Dr. Sahu Khan maintains that the Defendant has a statutory right to insist on a further 20 year extension, which right cannot be circumvented or foregone.

The Appeal to the Central Agricultural Tribunal

On 5th April 2001 the Defendant filed a Notice and Grounds of Appeal with the Central Agricultural Tribunal. His case is one that is neither frivolous or vexatious and has a real, as opposed to a hopeless, prospect of succeeding. Damages are not always an adequate remedy in a land case such as this, particularly if the land is a litigant’s home and has been so over many years.

The Plaintiff effectively comes to the High Court seeking to enforce the fruits of his success in the Agricultural Tribunal. The High Court will always be cautious before trespassing on the jurisdiction of the Tribunal and will seek to avoid unnecessary conflict [Sections 61(1), 62(3)(4) ALTA]. Since the Defendant has filed his appeal with the Central Agricultural Tribunal, because he is aggrieved with the decision of the Agricultural Tribunal, it is open to him to seek a stay of that decision; NLTB v Thanigachola Oddyar and 2 Others (unreported) Lautoka High Court Civil Action No. HBC0289.00L; 24 November 2000. Though the Tribunal lacks express powers to stay its decisions pending appeal, sufficient powers to do so are derived via application of the Magistrates Courts Rules. In Oddyar (supra) at p 6 I had said:

“In the Agricultural Landlord and Tenant (Tribunal Procedure) Regulations Cap. 270 [at p.15] Regulation 3 provides:

“Where no provision is specified by the Act or by these Regulations for the procedure to be followed or the conduct of proceedings by the parties, their barristers or solicitors or agents before the tribunal, the provisions of the Magistrates’ Courts Rules shall be followed with such necessary alterations as may be necessary to meet the circumstances of the case: (my underlining)

Provided that the provisions of Orders V and XI of the said Rules shall always apply to proceedings before a tribunal.”

Tribunals here generally refers both to the Agricultural Tribunal as well as to the Central Agricultural Tribunal [Regulation 2(2)]. Regulation 3 therefore would seem to provide that the stay procedure of the Magistrates Court Rules would apply to Tribunal proceedings, the relevant rules of which are Order XXXVII Rules 6 and 9 which I set out:

“Rule 6. Neither notice of intention to appeal nor an appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from, except so far as the court below or the appellate court may order, and no intermediate act or proceeding shall be invalidated except so far as the court below may direct.

Rule 9. After the record of appeal has been transmitted, until the appeal is disposed of, the appellate court shall be in possession of the whole proceedings as between the parties to the appeal. Every application in the proceedings shall be made to the appellate court, and not to the court below, but any application may be made through the court below:

Provided that, in cases of urgency, the court below may make any interim order to prevent prejudice to the claims or any party pending an appeal, but every such order may be discharged or varied by the appellate court.” ”

Regulation 44 provides:

“After a reference file of a reference being appealed has been transmitted to the central agricultural tribunal, all applications in the proceedings shall be made directly to that tribunal:

Provided that in cases of urgency, a tribunal may make any interim order to prevent prejudice to the claims of any party pending an appeal, but any such order may be discharged or varied by the central agricultural tribunal.”(my underlining)

I concluded (at p 8):

“The Tribunal referred to here which may make interim orders pursuant to Regulation 2(2) is the Agricultural Tribunal. Therefore it is the Agricultural Tribunal that has jurisdiction prior to the transmittal of the reference file being appealed to the Central Agricultural Tribunal, to hear applications in cases of urgency, and to make interim orders to prevent prejudice to the claims of any party pending an appeal. The ordering of a stay of an order of compensation is within the powers of the Agricultural Tribunal pursuant to Regulations 3 and 44, and the procedure of Rules 6 and 9 of Order XXXVII of the Magistrates Court Rules applies.

The omission of an express power to stay orders pending appeal would appear to be an omission owing to the informality of the scheme of ALTA in this regard. However a review of ALTA’s sections and of the Regulations, particularly Regulations 3 and 44 leads me to the conclusion that Parliament intended that a stay should be one of the powers vested in this particular court.”

Conclusion

An application for stay should therefore be made before the Agricultural Tribunal. In the event that the record and appeal papers have already been transmitted to the Central Agricultural Tribunal, application might still be pressed before the Agricultural Tribunal since the post of Central Agricultural Tribunal has been vacant now for 4 years.

Where does that leave the injunction application of the Plaintiff? The Plaintiff gives his undertaking as to damages. For the year 2001 there was said to be a crop of over 150 tons on the land. No doubt there will be an equivalent, more or less, for the year 2002. Under the interim order for injunction of 26 March 2001 the Defendant is prevented from uplifting cane proceeds from the farm from the Fiji Sugar Corporation or under any security from any bank until further order of the court. The Defendant says he has assets of $80,000 in referring to a house. If the case drags on, the party who enjoys the crops meanwhile, may have difficulty in repaying such value to the other litigant. The tenant presently has the advantage of occupying the land.

This matter properly should be dealt with by way of a stay application before the Agricultural Tribunal. In the absence of such an application, and in order to allow for an application to be made, I order further in the interim as follows:

The Defendant and/or his servants and/or his agents be restrained from uplifting any cane proceeds from Farm No. 1589 Lega Lega Sector from Fiji Sugar Corporation Ltd or under any security from any bank or otherwise until either

(i) the Agricultural Tribunal or Central Agricultural Tribunal orders a stay on the decision of the Agricultural Tribunal of 21 March 2001 in Ref. No. WD 1/99B.

(ii) or until 8 October 2002 whichever is the earlier, or any earlier order of this court.

(iii) The parties to inform the court on 8 October 2002 on the progress of any application for stay before the Agricultural Tribunal.

(iv) If the stay application is not to be proceeded with, the High Court sitting in chambers in Suva will hear from counsel on 8 October 2002 at 11.30 a.m. as to what orders on the balance of convenience and justice are appropriate, pending the appeal, and pending the trial of this action.

(v) Costs of this application adjourned to 8 October 2002.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiff: Messrs Mishra Prakash & Associates, Lautoka
Solicitors for the Defendant: Messrs Sahu Khan & Sahu Khan, Ba