IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 238 of 2008L

BETWEEN:

TARA SINGH
(f/n Shankar Singh) of Maro, Sigatoka, Farmer
Plaintiff

AND:

KRISHNA REDDY
(f/n Kanna Reddy) of Maro, Sigatoka, Farmer
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. R. Chaudhary for the Plaintiff
Dr. M. S. Sahu Khan for the Defendant

Solicitors: Messrs Gordon & Chaudhary for the Plaintiff
Messrs Sahu Khan & Sahu Khan for the Defendant

Date of Hearing: Judgment on Notice
Date of Judgment: 25 November 2009

INTRODUCTION

1. This is an application by the Plaintiff for immediate vacant possession under ss 169, 170 and 171 of the Land Transfer Act [Cap 131] of a sugar cane farm in Sigatoka from the Defendant.

THE APPLICATION

2. The Summons was filed on 6 November 2008 supported by the Plaintiffs affidavit sworn on 4 November 2008 and a further supplementary affidavit filed on 27 January 2009. He says that he is the registered lessee of Crown Lease No. 9392. The lease is for 30 years from 25 May 1984. It is a protected lease under the provisions of the Crown Lands Act. According to the Plaintiff, the parties entered into a sale and purchase agreement on 18 July 2007 and the Defendant took temporary possession of the land thereafter. By letter dated 28 April 2008, the Plaintiffs solicitors wrote to the Director of Lands seeking his consent to the agreement and proposed transfer. On 17 July 2008, the Director of Lands advised that consent was being refused for the reason that the purchaser (i.e. the Defendant) "has already got an Agricultural Lease." On 25 August 2008, the Plaintiffs solicitors wrote to the Defendant advising him that the Director had refused consent and that pursuant to clause 19 of the agreement was null and void. The solicitors gave the Plaintiff 7 days to vacate the land and in any event no later than 7 September 2008.

3. By letter dated 9 December 2008, the Defendant wrote to the Plaintiffs solicitors acknowledging having been served with the Summons for ejectment and advised that he was willing to vacate the land if the Plaintiff paid him the cane proceeds for the years 2007 and 2008 after deduction of $600 for the land rent and farm expenses for those years and $170 for the cost of preparation of the agreement.

4. The Defendant appeared in person on 30 January 2009 when this matter was called and confirmed to the Court that he stood by the proposal in his letter of 9 December 2009. Mr Gordon, Counsel for the Plaintiff, however, informed the Court that his client maintained that he was not liable for the costs claimed by the Defendant. The Court gave further time for the Defendant to defend the action and to file his affidavit in reply.

5. The Defendant filed his affidavit in reply on 16 February 2009. He says in his affidavit that the Plaintiff agreed with him that pending the transfer of the land, the Defendant would cultivate the land. He annexed to his affidavit, calculations of the expenses he had incurred on cultivating the farms. His expenses were $9,709.38 for 2007 and $3,808.21 for 2008. He also claims that he paid to the Plaintiff $12,047.99 in 2007 and $7,573.65 in 2008. He further incurred $536 in expenses since the filing of this action in November 2008. He further claims that the Plaintiff had collected directly from the Fiji Sugar Corporation cane proceeds from the farm to which he is entitled but did not specify the amount.

6. The Defendant raised in his affidavit the lack of consent by the Director of Lands for the Plaintiff to issue these eviction proceedings. I allowed the Plaintiff to file a further affidavit annexing letters from his solicitors to the Director in which the Director’s consent for these proceedings was eventually given on 1 October 2008.

7. On 26 June 2009, I gave directions for the filing of submissions and the application set for hearing on 22 September 2009. Submissions have been filed for which I am very grateful and when the matter was called on 22 September 2009, both Counsels agreed to file their respective submissions in reply within 14 days and I deliver my judgment on notice. Only the Plaintiff filed submissions in reply. The fourteen days time limit has now expired without the Defendant filing his submissions. I now proceed to deliver my judgment.

THE LAW

8. Section 169 of the Land Transfer Act provides:

169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

9. The Plaintiff is the last registered proprietor of the subject land. He is also a lessor vis a vis the Defendant having given a notice to quit to the Defendant. He can bring these proceedings under s 169(a) or (c) of the Act.

10. The land in question is a "protected lease" and s 13 of the Crown Lands Act [Cap 132] states that:

13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.

(2) On the death of the lessee of any protected lease his executors or administrators may, subject to the consent of the Director of Lands as above provided, assign such lease.

(3) Any lessee aggrieved by the refusal of the Director of Lands to give any consent required by this section may appeal to the Minister within fourteen days after being notified of such refusal. Every such appeal shall be in writing and shall be lodged with the Director of Lands.

(4) Any consent required by this section may be given in writing by any officer or officers, either solely or jointly, authorised in that behalf by the Director of Lands by notice published in the Gazette. The provisions of subsection (3) shall apply to the refusal of any such officer or officers to give any such consent.

(5) For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee.

THE ARGUMENTS

11. Counsel for the Defendant argued that the consent of the Director for the issue of these proceedings must be obtained before their issue, and that having not been done here, this Court has no jurisdiction to hear this application. He cited Regan v Verma [1965] 11 FLR 240, 242; Northern Hotels Ltd v Oliver [1980] 26 FLR 93, 107 as supporting his submission.

12. In my opinion, Counsel’s interpretation of s 13(1) in this regard is not correct. Consent need not be obtained prior to the issue of proceedings. My reading of the section is that prior consent only applies to when the lessee alienates or otherwise deals with the land under lease. When proceedings are being issued, the section only requires consent. My interpretation is not inconsistent with the two Court of Appeal decisions cited above by Counsel for the Defendant. In any event, the Director’s consent was in fact obtained prior to the issue of these proceedings so the Defendant’s submission on this ground therefore fails.

13. Counsel for the Plaintiff submitted that because no consent at all of the Director of Lands was obtained, s 13(1) made the sale and purchase agreement null and void ab initio and of no effect. That meant that the Defendant had no right at all to occupy the land.

14. The decision in Northern Hotels Limited (supra) is directly on point. In that case, the Defendant, an American citizen, took possession of the Korolevu Beach Hotel, the airport and adjoining lands pursuant to an agreement to lease. He took possession and carried out renovations. The lands involved were a protected Crown lease, freehold lands and native leases. The Defendant was not a resident so required the Minister’s consent to enter into the agreement. No consents at all of the authorities were ever obtained. The Plaintiff as registered proprietor sought immediate possession of the hotel and premises. The Supreme Court, now the High Court, held that the agreement to lease was illegal and void pursuant to s 12 of the Native Land Trust Act, s 13 of the Crown Lands Act and s 6 of the Land Sales Act.

15. The law is well settled that in cases such as this, where the prior consent of the relevant authority is required, any agreement entered into without such consent is void ab initio and unenforceable, and such illegality cannot be cured by consent subsequently given: Chalmers v Pardoe [1963] 1 WLR 677; 3 All E R 552; Phalad v Raj [1978] FJCA; 24 FLR 170; contrast Ganpati v Somasundaram [1976] FJCA; 22 FLR 194.

16. On the case authorities referred to above, the Defendant has no rights under the sale and purchase agreement of 18 July 2007 and therefore cannot show cause why he should not give up possession of the land to the Plaintiff.

17. I have discretion to stay execution of the order for vacant possession. It is fast approaching Christmas and I think the Plaintiff and this Court should extend the hand of goodwill to the Defendant and his family by allowing them to spend the festive season in the home that they have occupied for the last two years. I therefore stay execution until 31 January 2010.

COSTS

19. Neither party can benefit from the illegal contract so I make no order as to costs.

ORDERS

19. The Orders are therefore as follows:

1. The Defendant shall give vacant possession of Crown Lease No. 9392 to the Plaintiff stayed till 31 January 2010.

2. There is no order as to costs.

Sosefo Inoke
Judge