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Bakar v Talib [2010] FJHC 8; HBA022.2008L (21 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Appeal No: HBA 22 of 2008L
[On Appeal from the Ba Magistrates Court Civil Action 56 of 2005]

BETWEEN:

ABU BAKAR
as executor and trustee of the estate of HABIB KHAN
and in propria personam
Appellant/ Plaintiff Below

AND:

ABU TALIB
Respondent/Defendant Below

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Dr. M. S. Sahu Khan for the Appellant/Plaintiff
Mr. Ashneel Sudhaka for the Respondent/Defendant

Solicitors: Sahu Khan & Sahu Khan for the Appellant/Plaintiff
K. Lawyers for the Respondent/Defendant

Date of Hearing: 7 December 2009
Date of Judgment: 21 January 2010

INTRODUCTION

[1] This is an appeal from the Ba Magistrates Court. The main point on appeal is the application of s 13 of the Crown Lands Act [Cap 132]. It concerns a Crown lease of agricultural land.

THE BACKGROUND

[2] The parties are brothers. The Plaintiff is the elder brother. The Judgment of the Magistrates Court dated 28 July 2008, which is the subject of this appeal, sets out the facts as follows. Their late father, Habib Khan, owned two pieces of agricultural land, a Native land and Crown land lease number 5752 which is the subject of this litigation. The Plaintiff and the Defendant were living with their parents on the Native land until 1973 when the Defendant by way of a family arrangement moved to the Crown lease. His father allocated him 5 acres of land to plant sugarcane and sugarcane was harvested and sent to the Fiji Sugar Corporation on his father’s cane contract. He was paid his share of the proceeds until about 1996. The Defendant then stopped planting sugarcane due to certain disputes between him and the Plaintiff. When the Defendant moved on to the Crown lease he built a lean-to house which was burnt down in 1987. He then built a substantial building which has 6 bedrooms and worth $40,000.

[3] On 28 September 1992, his father’s solicitors sent a notice to the Defendant which read:

Our client says that you had been allowed to remain on his land in farm 323 as a family member. However, you are becoming a nuisance of our client.

Accordingly, we have been instructed to demand which her hereby do that you are entitled to remain in our clients property and occupy the residential house but you are not to become a nuisance nor that you trespass on the cane field of our client and you are not to work on our client’s land at all. In the past you have been left to enjoy the family’s property but from now onwards you are only to occupy the residential house.

If you are not to comply with the instructions and demand of our client, our client shall nave no option but to take legal proceedings against you.

[4] This notice was probably the catalyst for the series of arbitration, Agricultural Tribunal and Court hearings that followed.

[5] The Defendant filed two actions in the Agricultural Tribunal in 1990 and 1992 for declarations of tenancy which were struck out for want of prosecution but the third in 2002 eventually came to be heard. The Tribunal delivered its decision on 25 October 2004 which was to the effect that the Defendant was not a tenant "because the arrangement where the (Defendant’s) father allowed him to occupy and cultivate a portion of (the Crown lease) was a family arrangement common amongst Indian families where there was no intention to create legal relations." The Defendant was a licensee. He then appealed to the Central Agricultural Tribunal which delivered its decision on 12 November 2007 affirming decision of the Agricultural Tribunal.

[6] The Defendant also filed an action in this Court in December 1992 (HC 308) against his father for a declaration that he was a tenant under the Agricultural Landlord and Tenant Act ("ALTA") of one half of the Crown lease. It is not clear from the record what the outcome of that case was.

[7] In an effort to resolve the family dispute, a solicitor was appointed as an arbitrator who gave an award on 31 July 1996, part of which was for payment of $15,569 to the Defendant for the balance of his share of unpaid sugarcane proceeds to May 1996. That part of the award was accepted by the Agricultural Tribunal in its decision of 25 October 2004. The other part of the arbitrator’s award, which granted the Defendant a tenancy over 4 acres of the Crown lease, was rejected by the Tribunal and upheld on appeal.

[8] Mr Habib Khan died on 12 June 1998. Probate was granted to the Plaintiff on 23 September 1998.

[9] On 17 August 2005, the Plaintiff filed the Magistrates Court action which is the subject of this appeal for compensation for loss of income arising from the Defendant’s unlawful occupation of the Crown lease for the previous 15 years and for his eviction. The Defendant raised the defence of promissory estoppel and counter-claimed for an injunction restraining eviction and damages for his losses. The case was heard over two days in March and April 2008 and the Magistrate delivered his decision on 28 July 2008.

THE MAGISTRATE COURT DECISION

[10] The trial Magistrate considered the issue for his consideration was "whether he should grant an order for vacant possession or whether the Defendant should be allowed to continue to occupy the dwelling house."

[11] Clause 2 of the Crown lease provided:

The lessee shall not transfer, sublet, mortgage, assign or part with the possession of the whole or any part of the demised land nor shall he enter into a partnership agreement to work the land or any part thereof or a share farming agreement or any other arrangement of a like nature for the working of the demised land or any part thereof, without the written consent of the lessor first had and obtained.

[12] His Worship held that clause 2 had not been infringed and therefore s 13 of the Crown Lands Act did not apply. His Worship based his finding on the findings of fact of the Agricultural Tribunal that:

The evidence clearly shows that the (Defendant) was given a part of his father’s lease to farm and keep the proceeds to support his family. There is no evidence to suggest that he and his father were not on good terms when the agreement was entered into; no evidence of a written agreement; no evidence that the (Defendant) had foregone a benefit to come to his father’s farm; and no evidence that the presumption that the (Defendant) and his father did not intend to create legal relations by their agreement has not been rebutted.

[13] His Worship also considered the Privy Council decision in Maharaj v Chand [1986] 3 All E R 107 in respect of promissory estoppel and s 12 of the Native Land Trust Act and concluded that:

The plaintiff and his late father by their conducts gave the defendant reason to believe that he, his wife and children had a licence to remain in their dwelling house permanently and as a result the defendant has mad a substantial improvement and has acted to this detriment. The defendant has acquired a personal right against his late father and the plaintiff and therefore the defendant, his wife and children are entitled to remain in their dwelling house permanently and I do so order. The plaintiff’s claim is therefore dismissed.

[14] In respect of the Defendant’s counter-claim, His Worship held that because there was no breach of clause 2 of the lease and hence of s 13 of the Crown Lands Act, consent of the Director of Lands was not required for the Defendant to bring his counter-claim. However, His Worship did not make any further order for compensation because of the Tribunal award of compensation.

THE GROUNDS OF APPEAL

[15] The Plaintiff filed his Notice of Intention to Appeal on 4 August 2008. The Grounds of Appeal are:

1. That the learned trial Magistrate erred in law and in fact in not applying the fundamental and basic principles relating to consequences relating to the application of s 13 of the Crown Lands Act in spite of full written submissions with relevant authorities presented to the Court by the Counsel for the Plaintiff/Appellant.
   
2. The learned trial Magistrate erred in law and in fact in holding after referring to clause 2 of the relevant Crown lease document "In my view Clause 2 of the lease document had not been infringed and therefore s 13 of the Crown Lands Act does not apply" when it was so patently clear and the law is well established and is so basic that in determining the issue of breach of s 13 one looks at the actions of the parties to see whether s13 has been breached and not to the terms of the lease document.
   
3. The learned trial Magistrate erred in law and in fact in holding that promissory estoppel applied in view of the clear illegality and breach of s 13 of the Crown Lands Act in as much as it is basic and fundamental law that no estoppel arises when there is illegality and in particular where it will result in the breach of a statute.
   

CONSIDERATION OF THE APPEAL

[16] Section 13 of the Crown Lands Act provides:

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.

[17] The lease in this case is a "protected lease". The lessor is the Director of Lands on behalf of the Crown, now the State.

[18] I am of the view that the trial Magistrate was wrong in holding that clause 2 of the lease was not infringed. I think the arrangement entered into could fall within any of the categories of activities requiring the Director’s prior consent, namely, "sublet, assign or part with possession of part of the demised land... enter into a partnership agreement to work the land or any part thereof or a share farming agreement or any other arrangement of a like nature for the working of the demised land or any part thereof".

[19] I also think that the trial Magistrate was wrong in considering that because the arrangement was a "family" arrangement and hence not a "commercial" arrangement, it was not a dealing in land within the meaning of s 13 of the Crown Lands Act. I agree with Dr Sahu Khan that one must look at the "activity" involved. See, for example, per Henry JA in Phalad v Sukhraj [1974] 24 FLR 170, 175[1]:

The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12 (of the Native Land Trust Act). It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the subsequent acts of appellant, done inn pursuance of the agreement, "alienate or deal with the land, whether by sale, transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts.

[20] The same words and phrases in s 12 of the Native Land Trust Act are used in s 13 of the Crown Lands Act. The fact that the activity did not arise out of a commercial relationship therefore does not, in my view, by itself, take the activity out of the purview of s 13.

[21] His Worship’s error also led him to apply Maharaj v Chand (supra) which does not apply to this case. That case concerned s 12 of the Native Land Trust Act, which is a similar provision to s 13 of the Crown Lands Act. The facts of Maharaj v Chand can be distinguished from the present case. It is clear from the following passage in the judgment[2] that promissory estoppel applied because of the nature of the defendant’s claim:

Before their Lordships two points arise, namely the effect of the section and estoppel apart from the section. The points are linked inasmuch as the estoppel had to be defined to enable a decision to be reached on whether the section excludes it. There is some advantage, however, in considering the statutory point first, as it is of some general significance in Fiji and other countries where similar provisions are in force and on it alone the courts below have differed. For this purpose it is enough to note that the effect of the trial judge’s decision and the express contention advanced for the defendant before their Lordships is not that she has (or should be awarded) any legal or equitable interest in the land on which the house stands. It is simply that the plaintiff is estopped against her from denying that she has his permission or licence to live permanently in the house. The right is not put forward as one of exclusive possession as against the plaintiff himself; nor is it claimed that the rights of third parties, such as the plaintiff’s lessor and mortgagee, are affected.

[22] The facts in this case are completely different from the facts in that case. Here, the Defendant in his three applications in the Agricultural Tribunal and the Central Agricultural Tribunal claimed a right to be declared a tenant of part of the Crown lease. The Defendant in his evidence in the Magistrates Court under cross examination said:[3]

The 5 acres land belonged to me and no one including Abu Bakar had right to come on 5 acres as my father gave me the 5 acres. May father gave me 5 acres permanently so Abu Bakar has no right to evict me as it is my land.

[23] There is no clearer claim for exclusive possession or a legal right by the Defendant, in my view, than as evidenced in the above proceedings. That being the case, he is claiming what amounts to an "alienation" or a "dealing" within the meaning of s 13 of the Crown Lands Act and therefore null and void for lack of consent by the Director of Lands: Phalad v Sukhraj [1974] 24 FLR 170 [FJCA]; Sai v Atchson [1960] 7 FLR 71 [FJHC]; Chalmers v Pardoe [1963] 3 All E R 552.

[24] Further, for this Court to allow the "arrangement" to stand, which would in my view allow the lessor to "sublet, assign or part with the possession of ... part of the demised land", in breach of clause 2 of the Crown lease.

[25] In Kulamma v Manadan [1968] AC 1062, the Privy Council on an appeal from the Fiji Court of Appeal held that entering into a share farming agreement did not amount to an alienation of native land under s 12 of the Native Land Trust Ordinance. Whether the section applies or not is a question of construction and effect of the agreement in question.[4] In that case, under the terms of the agreement, the respondent had the right to enter upon the land; he had complete control of the farming operations, and was beneficially entitled to one half of the net value of produce, and was to become entitled to one-half interest in the farm itself. The Court held that even if this did not amount to an alienation, consideration of the Ordinance as a whole showed that licences affecting native land were considered as dealing, and at the least the respondent was a licensee.[5] Clearly, what the parties agreed and did in the present case went further than what the parties did in Kulamma v Manadan. The Defendant here is at the least a licensee and according to the above dicta in Kulamma v Manadan, the arrangement required the prior consent of the Director of Lands.

THE FINAL OUTCOME

[26] I therefore am of the opinion that the trial Magistrate was wrong in fact and law in holding that s 13 of the Crown Lands Act did not apply. This appeal therefore succeeds and the decision of the Magistrates Court of 28 July 2008 is set aside.

[27] In the Magistrates Court, the Plaintiff sought orders that the Defendant vacate that part of the Crown lease occupied by him and he be restrained from entering the said land. The result flowing from my decision is therefore the Plaintiff’s claim in the Magistrates Court succeeds. However, the Defendant and his family should be given time to vacate so I will stay this order for 2 months.

[28] The Plaintiff also claimed damages which the Magistrate dealt with but is not the subject of this appeal so I make no orders in that regard.

COSTS

[29] The Defendant shall pay the costs of this appeal and the costs in the Magistrates Court which I summarily assess at $2,000.

ORDERS

[30] The Orders are therefore as follows:

1. The appeal is allowed.
   
2. The Judgment of the Ba Magistrates Court of 28 July 1008 is set aside.
   
3. The Respondent/Defendant shall vacate the land comprised in Crown Lease No 5752 within 2 months and thereafter be restrained from entering the said land.
   
4. The Respondent/Defendant shall pay the costs of the Appellant/Plaintiff of this appeal and in the Magistrates Court of $2,000 within 21 days.
   

Sosefo Inoke
Judge

^[1] With whom Gould VP and Spring JA agreed.
^[2] At p109b
^[3] At p 39 of the Magistrates Court Record
^[4] Per Ld Wilberforce at p 1068D-E
^[5] At p 1070A