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Kumar v Reddy [2011] FJHC 48; HBC118.1996 (16 February 2011)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA

HBC No. 118 of 1996

BETWEEN:

RAJEND KUMAR
son of Suruj Kumar of Navo, Nadi, Farmer
PLAINTIFF

AND:

KANIAPPA REDDY
deceased substituted by his executrix
CHANDRA KANTA of Surrey, Canada, Hospital Assistant.
1ST DEFENDANT

AND:

SUBARMANI REDDY
son of Kaniappa Reddy of Surrey, Canada, Despatch Officer.
2ND DEFENDANT

Appearances;
Counsel for the Plaintiff: Mr. R. P. Singh (Patel & Sharma)
Counsel for the Defendants: Ms. V. Patel (Vasantika Patel)

Date of Trial: 3rd May 2010.
(Final written submissions filed on 15th December 2010)
Date of Judgment: 16th February 2011.

JUDGMENT

1. This matter was referred to this court on 4th December 2009 as ready to fix for trial, and as such fixed for the 3rd May 2010 by this court.

2. However, a summons had issued to substitute one Chandra Kanta for the deceased 1st defendant as far back as 1st September 2004, and there is no sealed order or order in the record of such substitution being done.

3. As Ms. V Patel appears on instructions for the said Chandra Kanta and there is no objection to the substitution, this Court made order substituting the said Chandra Kanta in place of the deceased 1st defendant on the 3rd of May 2010 applying the maxim nunc pro tunc ("an act done retrospectively so as not to prejudice a party- what should have been done then could be done now by court") and proceeded to trial. (Caption amended accordingly by court).

4. This action has been instituted in 1996, 14 years ago. The plaintiff is seeking specific performance and other reliefs on the alleged failure on the part of the defendant to perform his obligations under a written "LAND SALES AND PURCHASE AGREEMENT" said to have been entered in to 18 years ago in 1992.

5. The said "Agreement" is the document no.3 dated 11th May 1992, in the Agreed Bundle of Documents. Though there is much to be desired in the said "Agreement" and it appears to be a layman's document, there is no dispute that such an Agreement was entered in to by the parties as set out in the 1st agreed fact in the Pre Trial Conference Minutes. There is no dispute as to the purchase price under the said Agreement being a sum of $3000/=, and that it has been paid by the plaintiff to the 1st defendant, as per the agreed facts of the PTC Minutes. It is also admitted by the parties that it is a ¼ acre of land that the 1st defendant agreed to sell to the plaintiff by the relevant Agreement.

6. Further, the parties agree in the PTC minutes that the subject land forms part of a Crown lease (no.10919) and more importantly that it is a "protected lease" under the provisions of the Crown Lands Act (Cap.132). Therefore what the "Agreement" seeks to "sell" is the leasehold rights for ¼ acre out of that land.

7. The description of the ¼ acre land in the written Agreement is "¼ acre which has been surveyed by the parties showing on lot 3, Plan Ref SO 126 known as Nacaqara and Navo in the Tikina of Nadi, in the Province of Ba". Lot 3 is a much larger land than ¼ acre.

8. It is for this court to judge whether the parties contracted to transfer an undivided ¼ acre share of the land or whether there was consensus ad idem (agreement of the minds on the essential) as to the corpus of the contract.

9. The Plaintiff after obtaining judgment by default entered in to part of the land of the defendant that the plaintiff alleges the defendant agreed to convey to him. The said default judgment was subsequently vacated.

10. Mr.R .P. Singh Counsel for the Plaintiff at the very outset in the best traditions of the bar submitted to court, to the effect that the Plaintiff his client, may not be in compliance with a statutory pre-condition, before filing this action, being the absence of the consent of the Director of Lands for the purpose of these proceedings in terms of section 13(1) of the Crown Lands Act (Cap. 132 Laws of Fiji). Mr. Singh further submitted that as per the Judgment in Mohamed Rasul Vs. Jeet Singh (Fiji Law Reports Vol.10 page 16) such consent could be obtained any time before the court "deals" with the "property", which he submitted would be before judgment.

In Mohamed Rasul Vs. Jeet Singh, Fiji Law Reports Vol.10 page 16 at page 17(para G&h); His Lordship Hammett Ag.C.J stated;

"There is nothing in the express wording of section 15(1) which makes it necessary to obtain the consent of the Director of Land before an action concerning a protected lease is initiated. All section 15(1) provides, in this connection, is that no Court of Law may deal with any such lease without the consent of the Director of Lands. It appears to me that the consent of the Director can therefore be obtained up to any time before the land is actually "dealt with" by the Court, which in my view is certainly not the case any time before an order has been made by the Court or a Judgment of the Court has been delivered. I can also see no reason why a Judgment of the Court dealing with the land could not properly be made "subject to the consent of the Director of Lands, with liberty to apply for further orders should that consent not be granted"...." (His Lordship refers to section 15(1) of the Crown Lands Ordinance, which is now section 13(1) of the Crown Lands Act.(Cap.132)

11. (i) This action instituted 14 years ago has finally touched trial. To adjourn this case to obtain the consent of the Director of Lands under section 13(1) of the Crown Lands Act, would further delay this case. This court had a hearing fixed for almost every working day in a week in its diary (2010), and the trial diary was full for that year. An adjournment would take the next trial date beyond that year. It is for that same reason the Court substituted the 1st Defendant without an adjournment on the consent of the parties. As such in view of the dicta in the aforesaid Mohamed Rasul case, and on the parties agreeing, this court ruled to proceed to trial subject to the condition that the judgment shall be deferred for a period of one month for the Plaintiff to obtain the consent of the Director of Lands as above for these proceedings, failing to obtain same the Plaintiffs action to be dismissed on the basis that the Court is statute barred from dealing with the matter as per section 13(1) of the Crown Lands Act.

11. (ii) The evidence of two witnesses was led for the plaintiff at the trial with the Agreed Bundle of Documents (Doc. 1-18), and the Judgment differed for the consent or otherwise of the Director of Lands. After receiving the consent of the Director of Lands the parties were given time to file written submissions, the final such submissions were filed on the 15th December 2010, and Judgment reserved to be delivered on notice.

12. The trial having commenced on the above premise, both counsel submitted that document 10 in the agreed bundle of documents, which appears to be a deposited plan, is not relevant to these proceedings and as such this court noted same on the said document.

13. The plaintiff in his evidence stated that there were two agreements entered into between himself and the deceased 1st defendant (original defendant). One agreement was in respect of farmland of 5 ¾ acre at a price of $24000/= and the other is in respect of ¼ acre of land at a price of $3000/=. It is the second agreement to transfer the ¼ acre of land at the price of $3000/= that is the subject of his action. It was submitted the 5 ¾ acre land has already been transferred with the consent of the Director of Lands to the Plaintiff.

14. It was the plaintiffs position that he bought the 5 ¾ acre land on the expectation of subsequently being transferred the ¼ acre land for the purpose of building a house, as the rest of the land is prone to flooding. It is the specific performance of the agreement in respect of this ¼ acre of land that the Plaintiff seeks.

15. One "Dass Travel Agencies" has acted as the estate agent in this transaction between parties.

16. Under skillful cross examination by Ms. V. Patel the plaintiff stated that the land he entered in to pursuant to a court order (default judgment) was not the piece of land (1/4 acre) that the deceased 1st defendant pointed out to him. Under re-examination the plaintiff corrected his evidence and stated that the said 1st defendant changed his mind and showed a different part of the land to the south of what he entered in to, only after he filed this action. The Plaintiff gave evidence of events that took place 18 years ago, and it is not unusual to make such corrections. It would have been unusual had he made no such errors. His evidence was credible, convincing and gave this Court no reason to doubt it. This Court is convinced that the part of the land that was subdivided (with the approval of the Director of Town & Country Planning) and set out in document 8 (Doc 8) tendered in evidence and confirmed by the witness from the Director of Lands is the parcel of ¼ acre land the plaintiff and the 1st defendant Agreed to transfer, and as such there was an identifiable corpus at the time of the Agreement and as such consensus ad idem.

17. Apart from the provisions of the Subdivision of Lands Act, in clause 19 of the Crown Lease (no. 10919) the 1st defendant as lessee is covenanted not to subdivide the land without the written consent of the lessor (Director of Lands) first had and obtained. It is also covenanted that the "lessee shall not transfer, mortgage, sublet, assign or part with the possession of the whole or any part of the demised land......without the written consent of the lessor (Director of Lands) first had and obtained", as set out in clause 2 of the said Crown Lease. Therefore even if the 1st defendant was not aware of section 13(1) of the Crown Lands Act, he obviously knew the covenants of the Crown Lease, a copy of which he had.

The Defence under Section 13(1) of the Crown Lands Act;

18. The defendants contend that the Agreement is unlawful, null and void due to absence of the consent of the Director of Lands per section 13(1) of the Crown Lands Act (Cap 132). Said sec.13 reads as follows;

"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"(hereinaftered a proteprotected 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, tra or sublease or in any othe 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, authorized 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.
(Inserted by 21 of 1959, s. 2)

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

19. It is abundantly clear that it is the 1st defendant who had to obtain the consent of the Director of Lands before he effected the contract with the plaintiff or dealt with the Land. It is the 1st defendant who would be in contravention of section 13 of the Crown Lands Act as well as the covenants of the Crown Lease which could even lead to the termination of that lease had he not applied for such consent. The plaintiff contracted subject to 1st defendant obtaining the consent of the Director of Lands. (Page 3, clause 5 of the Agreement, being document 3 in the Agreed Bundle of Documents.)

20. The plaintiff had the option to rescind the contract and seek the return of his money, on the 1st defendant failing to obtain the consent of the Director of Lands. The plaintiff stated in his evidence that he sought the return of the $3000/= from the 1st defendant which the 1st defendant did not return. He may well have bought another land for the $3000= had the 1st defendant returned that money to him at that time.
RAJEND KUMAR VS. KANIAPPA REDDY AND SUBARMANI REDDY- HBC NO. 118 0F 1996 IN THE HIGH COURT OF FIJI AT LAUTOKA.
JUDGMENT OF THE HON. JUSTICE YOHAN FERNANDO.

21. It was admitted by the 2nd Witness (for the Plaintiff) from the Land Department that a survey had been done and an approved division made by the Director of Town and country Planning and it is in his file and it was the document introduced as Doc 8, through the previous witness, to replace the earlier document 8 in the agreed bundle of documents.

22. The said witness from the Land department admitted that an application seeking consent of the Director of Lands for the transfer of the ¼ acre of land had been lodged on 13 May 1992 and the application is still there in the file. The witness further admitted that the said application had not been rejected or refused. The witness could not give any reason why it could have been rejected. The Director of Lands had consented to the transfer of the other 5 ¾ acre of land to the plaintiff.

23. After the witness from the Land Department gave evidence, that the application for the consent of the Director of Lands is still available in the file and has not been rejected and that he cannot give any reason for rejecting it, and after the conclusion of evidence of the said witness (from the Director of Lands) the Director of Lands gave its consent in writing for this action to proceed by its letter of 25th May 2010.

24.Therefore if the Director of Lands intended to deny its consent, to the transfer of the ¼ acre land under section 13 then it would have so communicated to court and denied consent to proceed with this action as well. The Director of Lands was well aware of the particular ¼ acre of land to which it gave its consent as it had been subdivided with the approval of the Director of Town and Country Planning in Doc 8 of the Agreed bundle of Documents, as it transpired through its own file according to its witness, at the trial.

25. The prohibition to dealing with the land by the lessee (1st Defendant) as well as this court in its proceedings, without the written consent of the Director of Lands, is imposed in one sentence in section 13(1).

26. When the Director of lands gave its consent by its letter of 25th May 2010, the Director of Lands had obviously considered all aspects that ought to have been considered before consent is given under section 13(1) of the Crown Lands Act. The consent for the transfer as well as the consent for Court to proceed is dealt with in one breath in one sentence in section 13(1), strongly suggesting the considerations for such consent to be the same.

27. Even the Defendants Counsel accepted the letter of 25th May 2010 as a due letter of consent under section 13 (1) of the Crown Lands Act.

28. It is a primary need of any nation to monitor and keep watch over its land wealth, and in an Island nation this need is paramount. As such section 13(1) of the Crown Lands Act, though it may curtail the freedom of contract between citizens, needs to be implemented in the national interest, which overrides personal individual interest.
It is the Director of Lands who has been given the authority by statute to control that freedom in respect of Crown land.

29. As such when the Director of Lands grants its consent in writing under section 13(1), it is not for this court to limit its application.

30. The Parties did not contract against the prohibition in section 13(1) but subject to it.

31. The words used in section 13(1) are: .. "it shall not be lawful for the lessee thereof to alienate or deal with the land".... Therefore it follows that dealing on the part of the lessee (1st defendant) only would invite illegality. The plaintiff is not the lessee, as such the plaintiff entering the land (on the default judgment) is not a "dealing" by the lessee, and as such per se does not attract illegality under section 13(1) of the Crown Lands Act.

32. Even if the lessee (1st defendant) dealt with the land without an application for consent, it follows that such a lessee should not be permitted to benefit by such an illegal act to the detriment of an innocent party.

33. The purpose of section 13(1) it appears is not to create a category of contracts as illegal or null and void per se but to compel lessee-transferors to keep the Director of Lands informed of the intended change and to give the Director of Lands the opportunity to intervene before parties proceed beyond a point of no return.

34. It is no doubt to give the Director of Lands control over the general use and occpation of Leased Crown land and in particular those that are termed as "a protected lease". Otherwise every transfer for which consent is sought would be illegal and null and void before the application is even made, which no doubt is a contradiction in terms.

35. Unless there is an Agreement between transferor (lessee) and transferee there would be no cause or matter for the Director of Lands to give consent to. If section 13(1) is interpreted to mean that any Agreement to transfer, without the prior consent of the Director of Lands first had and obtained, is illegal, null and void then the Director of Lands too would be bound not to give consent to an Agreement that is illegal, null and void. In effect the Director of Lands would not be able to give consent in respect of any Agreements to transfer! The Director of Land cannot be expected to make the contract for the parties.

36. The witness from the office of the Director of Lands admitted and stated that the application for consent lodged on 13th May 1992 was not refused and still stands in the file. It has stood so for the last 18 years till consent was granted on 25th May 2010!

37. Regulatory provisions tend to succeed in guiding the freedom of contract than rigid prohibitory provisions which curtails such freedom. The law cannot provide for all situations though it ought to and endeavors to do so. Efficient utilization of leased Crown land no doubt will not be improved by curtailing or obstructing the freedom of its use or its transfer, it is regulation and interpretation in that direction that will provide for efficient utilization. A lessee who is unable to improve or make productive the land, ought to be able to transfer the lease to a person who can do so, to the benefit of the Crown as well as to himself with the consent of the lessor the Crown (represented by the Director of Lands), or the negative option would be to surrender the lease or neglect the land.

38. Under section 13(3) of the Crown Lands Act; "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."

39. Therefore refusal should follow by notification if consent is not given, to give meaning to section 13(3). No such notification of refusal was given for the last 18 years; instead the Director of Lands finally gave its consent on 25/May/2010.

40. Therefore this court is of the view that such a contract becomes illegal, null and void on the Director of Lands refusing the consent and after the aforesaid 14 days to appeal lapses after notification, or when the Minister refuses the consent, or when no such consent is sought. If the consent is sought then till notification of its refusal, the contract is neither illegal nor null and void.

41. A further aspect is the use of the word "effected" in the sanctioning part of section 13(1) of the Crown Lands Act thus;..... "Any sale, transfer, sublease, assignment, mortgage, or other alienation or dealing effected without such consent shall be null and void."

42. The word "effect" is defined as "to bring about: to accomplish" (Oxford dictionary 1967 edition). The transfer has not yet been accomplished or brought about. It is still to be done. The Agreement was an agreement to transfer, and not a transfer. Therefore the Agreement to transfer would not be null and void till the transfer is executed ("effected") without the consent of the Director of Lands. Now that the consent of the Director of Lands has been given, a transfer thereafter would not be null and void nor would the Agreement to transfer which preceded it.

43. (i) As in the Supreme Court Judgment in Reggiero vs. Kashiwa (1998) FJSC 8; CBV0005U.1997S, cited by the plaintiff, in this case too I find that the parties and especially the plaintiff has, to quote; "not violated the policy of section 13(1) of the State Lands Act". (Crown Lands Act).

43. (ii) As such given the circumstances above this court is compelled to conclude that the Director of Lands has given and ratified its consent in writing under section 13 (1) of the Crown Lands Act to the Defendants application to transfer the ¼ acre land, being the sole authority entitled to do so. The Director of Lands may well have applied the maxim "nunc pro tunc" referred to above.

44. The consent of the Director of Lands conveyed by its letter of 25th May 2010 relates back to the application for consent made by the 1st Defendant and makes the contract between Plaintiff and the 1st Defendant executable.

45. In CHALMERS VS. PARDOE (1963) 3 AER 552, AT 557; in concluding Sir Terence Donovan stated: "Their Lordships after full and anxious consideration of the whole matter have reached the same conclusion as the Court of Appeal, namely, that a dealing in the land took place here without the prior consent of the Board as required by s.12 of the ordinance: that the dealing was accordingly unlawful: and that in these circumstances equity cannot lend its aid to Mr. Chalmers. Their lordships will, therefore, humbly advise Her Majesty that the appeal should be dismissed." (Referring to section 12 on the Native Land Trust Ordinance) (Emphasis added)

46. In DB Waite (Overseas) Ltd v Wallath [1972] FJCA 2; [1972] 18 FLR 141 (30 October 1972) SPRING J.A. at page 151 stated;
"It is with reluctance that I have come to the above conclusion particularly as the main purpose of the Native Land Trust Ordinance was to protect Fijians in the control and administration of their lands, whereas, here, Section 12 of the Native Land Trust Ordinance is being availed of by the appellant - a European and an experienced businessman - to preclude the respondent vindicating a wrong done to him by the appellant." (Emphasis added)

47. And more recently in, Native Land Trust Board v Subramani [2010] FJCA 9; ABU0076.2006 (25 February 2010) their Lordships in conclusion stated:

"[47] It our respectful opinion that the decision in Chalmers v Paru> protects the ithe interests of the landowners because tenants who fail to notify the NLTB of dealings in the land under lease will get no assistance from the Court."