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Singh v Native Land Trust Board [2009] FJHC 265; HBC159.2009L (27 November 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 159 of 2009L

BETWEEN:

PREM SHILA SINGH
Plaintiff

AND:

NATIVE LAND TRUST BOARD
1st Defendant

AND:

ROVEENA FARJANA KHAN
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr R Singh for the Plaintiff
Rt A Mataitini the First Defendant
Dr M Sahu Khan for the Second Defendant

Solicitors: Messrs Patel & Sharma for the Plaintiff
NLTB Legal Dept. for the First Defendant
Messrs Sahu Khan & Sahu Khan for the Second Defendant

Date of Hearing: 26 October 2009
Date of Judgment: 27 November 2009

INTRODUCTION

[1] On 3 September 2009 I granted an interim injunction in favour of the Plaintiff restraining the Second Defendant from entering the land in dispute and carrying out any form of works on it. The matter is now before me for hearing inter-parte as to whether the interim injunction should continue until the final determination of this action.

[2] The dispute is over sugarcane farm land that was previously leased to the Plaintiff but subsequently leased to the Second Defendant by the First Defendant ("NLTB"). The Plaintiff claims that the NLTB unlawfully leased her land to the Second Defendant whilst her lease was still current.

THE CLAIM

[3] The Writ of Summons and Statement of Claim was filed on 3 September 2009. The main relief sought by the Plaintiff is to restrain the Second Defendant from coming onto and carrying out earthworks on the land which she claims as hers. The other relief sought is damages for loss caused by the Defendants actions.

THE FACTS

[4] The brief facts as appear from the Statement of Claim and the affidavits are as follows. The 71 year old Plaintiff claims that she is the owner of 23 hectares of sugar cane farm land in the Varoka Sector in Ba together with the benefit of a cane contract (the "land"). The land was Crown land[1] previously held by the Fiji Pine Commission. Pursuant to an agreement to exchange lands between the Fiji Pine Commission, Vagadra Cattle Farming Co Ltd[2] (the "Company"), the First Defendant ("NLTB") and the Director of Lands (the "Director"), entered into on 22 January 1985 (the "exchange agreement"), the land was transferred to the Company. The exchange agreement stated that "the Director will issue to the Company a new agricultural lease for 23 hectares for a period of at least 30 years from the 1st of January 1985."

[5] Subsequently, the land was transferred for valuable consideration by the Company to the Plaintiff by a deed dated 25 February 1989 although the Plaintiff says in her affidavit that she has been in possession since the lease was assigned to her on 25 September 1989. The Director of Lands gave his consent to the transfer to the Plaintiff so there is no issue as to the legality of that transfer.

[6] The Plaintiff says in her affidavit that despite having her lease and being in occupation since 25 September 1989, the NLTB issued another lease of her land to the Second Defendant. The Second Defendant has entered the land without her knowledge and approval and is now carrying out earthworks using bulldozers and other heavy machinery. When the Plaintiff’s farm manager asked the Second Defendant to stop, he was shown a copy of the NLTB lease.

[7] The Second Defendant filed an affidavit in which she denies that the Plaintiff is the registered proprietor of the land. She annexes to her affidavit an application by the NLTB dated 5 March 2009 to the Registrar of Titles for registration of cancellation of the Plaintiff’s lease upon re-entry for non payment of rent and deserting the land and leaving it unoccupied since 15 September 2007. The application was supported by an affidavit of an NLTB employee that he attached a Notice of Re-entry to a tree on the land on 18 September 2008. Also annexed to the affidavit is an inspection report by the same employee stating that the lessee had migrated overseas, the land was vacant with no sign of cultivation and rental arrears owing to 30 June 2008. It appears from the NLTB Defence that the re-entry was registered on 15 April 2009.

[8] Subsequently, the NLTB issued an instrument of tenancy under the Agricultural Landlord and Tenant Act ("ALTA") to the Second Defendant registered on 27 August 2009 for a term of 30 years commencing on 1 July 2009.

[9] The Second Defendant says that she has been informed by neighbours that the Plaintiff has not been on the land or cultivated it since 2006.

[10] The Plaintiff in her affidavit in reply denies that she has migrated and annexed a copy of her Fiji passport with details of her visits overseas to members of her family. She also denies that proper notice of re-entry was served on her. She notes the postal address on the notice as being different from hers. She also explained why the land is not being farmed in recent times and alleged that the Second Defendant’s husband knew that the land was hers but he, with the help of a member of the landowning unit, had convinced the landowners and the NLTB to issue a new lease to his wife, the Second Defendant.

THE LAW ON INTERIM INJUNCTIONS

[11] The law in this area is well settled since the decision in the American Cyanamid[3] case and the adoption of those principles in Fiji. See, for example, the Court of Appeal decision in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004) where the Court of Appeal said:

"...the three principal questions which fell to be answered (were) as follows:

(i) Is there a serious question to be tried?

(ii) Are damages an adequate remedy? and

(iii) If the answer to (ii) is in the negative then where does the balance of convenience lie?

SERIOUS QUESTION?

[12] It is clear from this brief summary of the facts that there are many factual issues that can only be resolved at the trial.

[13] There are also serious questions of law which can only be resolved after the facts are determined. For example, was the transformation of the land from Crown leasehold to native lease lawful? If so, was it subject to the Plaintiff’s interest? was the re-entry proper according to law? and, was the issue of the instrument of tenancy under the ALTA by the NLTB lawful?

DAMAGES AN ADEQUATE REMEDY?

[14] This is a case involving title to land so prima facie, land being "special" property, damages is taken to be not an adequate remedy.

BALANCE OF CONVENIENCE?

[15] I think the Plaintiff has an arguable case. The Second Defendant and her husband have just started clearing the land. Before they continue to expend money on the land I think it is in their interests that they stop because if the Plaintiff succeeds in her claim then their expenditure may not be recovered. I think the status quo, that is the position before the cancellation of the Plaintiff’s lease, should be maintained.

[16] Any outstanding lease moneys that will be owed to NLTB together with interest is recoverable from the party lawfully entitled to a lease of the land. NLTB’s present entitlements have been paid by the Second Defendant so neither it nor the landowners can complain that they are out of pocket.

[17] The Plaintiff has given an undertaking as to damages. What loss is the Second Defendant likely to suffer by the grant of this interim injunction pending trial? If the Plaintiff succeeds at trial the Second Defendant’s recourse is to the NLTB or some other person other than the Plaintiff. If the Plaintiff loses then the Second Defendant will get the land and compensation, if proven, from the Plaintiff. In this respect the Second Defendant is no different to any other litigant and I do not think that the Plaintiff should be put to the task of proving her worth before she is entitled to an injunction. As I have said, I think the Plaintiff has an arguable case, and taking all the above matters into consideration, the balance of convenience, in my view, lies in favour of the grant of an interim injunction pending trial.

COSTS

[18] The parties’ entitlement to costs will depend on the outcome of the trial so I think the costs of this application should be costs in the cause.

ORDERS

[19] The Orders are therefore as follows:

1. The interim injunctions granted on 3 September 2009 shall continue until final determination of this action.
   
2. The costs of this application shall be costs in the cause.
   

Sosefo Inoke
Judge

^[1] Approval Notice LD 4/7/1442 dated 20 February 1984.
^[2] The Company is described as “trading as farmers”.
^[3] [1975] UKHL 1; [1975] AC 396