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Wati v Naicker [2005] FJHC 287; HBC0184.2005 (4 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0184 OF 2005

BETWEEN:

BHAGYA WATI
daughter of Jiu Lal formerly of Rarawai, Ba but now of
3 Tummul Place, St Andrews, N.S.W 2566, Sydney, Australia, Domestic Duties.
PLAINTIFF

AND:

RANGANNA NAICKER
son of Rataiya of Rarawai, Ba, Cultivator.
DEFENDANT

Mr S.K. Ram for the Plaintiff
Mr M A Sahu Khan for the Defendant

Date of Hearing: 29 July 2005
Dates for Affidavit and Submissions: 5 August, 26 August, 9 September and 16 September 2005
Date of Ruling: 04 November 2005

RULING OF FINNIGAN J

This is an application for vacant possession of a cane farm and residential property under Section 169 of the Land Transfer Act Cap 131.

The hearing was by affidavit and written submissions. The timetable was met by Counsel and the matter has been awaiting ruling since 16 September 2005. I have reached a clear conclusion in the matter and because of the number of other cases waiting I shall deliver this ruling in short form.

The Facts:

The Plaintiff is registered proprietor of the property in question. The Defendant occupied it under the terms of a written agreement which expired on 25 March 2004. The agreement, which is in writing signed by both parties is termed an Employment Contract. It provides for the Defendant to occupy the houses on the farm. He was to cultivate the farm and in return would be paid 45% of the cane proceeds received by the Plaintiff from the Fiji Sugar Corporation. These were said to be his wages.

At the end of the term the Plaintiff gave notice to the Defendant that the contract would not be renewed and she required him to vacate the property. He has refused. On 7 April 2004 two weeks after expiry of the contract, he filed with the Agricultural Tribunal an application to be declared a tenant on the property. He is still in possession. He claims both that the property is neglected and that he is cultivating it. Another person claims in an affidavit that he is cultivating it. The Plaintiff herself lives in Australia.

Counsel for the Defendant submits that the Agreement is null and void because the lease is a protected lease and the agreement does not have consent. There may be an arguable point but for present purposes I do not have to consider that argument. Counsel also submits, with affidavit claims in support by the Defendant, that a lawyer now deceased said the Employment Agreement was really to be construed as a Share Farming Agreement. Construed by whom/ was the Plaintiff made aware of that? I reserve any decision about that.

The Defendant’s application in the Agricultural Tribunal was set down for hearing on 14 October 2004. That was adjourned. It was set down for hearing again on 25 January 2005 and the Defendant says the Plaintiff’s solicitor sought an adjournment because he was absent from Fiji and the Defendant’s lawyers consented. The Defendant says the application has since been adjourned several times. Counsel’s submissions show that it still has not been heard.

Decision:

There would have been a ring of truth in the Defendant’s claims had he filed his application for tenancy during the time he was legally in possession. Since he did nothing until after expiry of the Agreement his tenancy application can be nothing more then an attempt to get a new legal right to possession. At present he has no legal right.

I am however in no position to dictate to the Agricultural Tribunal how it conducts its business. The Defendant is in that tribunal seeking a right. Defendant’s Counsel has cited authorities which I accept and I am loath to order the Defendant off the property while that application is before the Tribunal.

It should clear however that his remaining on the property must not be construed as a factor which strengthens his application.

I find expressly that the Defendant has not shown cause under Section 172 of Cap 131. I hold that the Plaintiff is entitled to possession. I will however defer operation of my order so that the status quo is reserved while the Defendant takes his case to the tribunal. By the same token I will encourage him to press for a hearing without further delay. My order will take effect at 4.00pm on Friday 10 February 2006 unless he has earlier obtained a determination in the tribunal and/or has applied to this Court for deferment of my order, and shown good cause for deferment.

Orders:

Pursuant to Section 169 of the Land Transfer Act Cap 131 I order that the Defendant do give immediate vacant possession to the Plaintiff of the premises and land situated on Crown lease No 7451 being Lot 2 Plan BA 2338 & Lot 8 Plan BA 2339, Part of Vunisamoloa, Rarawai & Vunivesi Formerly CT 7822 & CT X1/05/19 (Farm 1568), on the Island of Viti Levu, in the District of Ba containing an area of 5.1042 ha.

Costs are in the Plaintiff’s favour, summarily assessed against the Defendant at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
4 November 2005