IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

LABASA CIVIL CASE NUMBER:
HBC 9 OF 2005

BETWEEN:

SINGHS SHOPPING LIMITED
PLAINTIFF

AND:

LABASA TOWN COUNCIL
1st DEFENDANT

AND:

CHARAN JIT SINGH
2nd DEFENDANT

Appearances: Mr. Amrit Sen for the plaintiff.
Mr. Adrian Ram for the 1st defendant.
Mr. Sarju Prasad O/I from Sherani & Company for the 2nd defendant

Date / Place of Judgment: Tuesday, 04th October, 2011 at Labasa.

Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

ORDER 18 RULE 18 – HIGH COURT RULES, 1988 – STRIKING OUT – no basis to strike out on the given pleadings. 

Legislation
High Court Rules 1988 ("The HCR")
The Crown Lands Act, Cap. 132.
The Indemnity, Guarantee and Bailment Act, Cap. 232.

The Application

1.	The 2nd defendant has filed an application under Order 18 Rule 18 of the HCR to strike out the plaintiff's statement of claim on the grounds it discloses no reasonable cause of action; it is an abuse of the Court process; it is frivolous and vexatious; and it is based on an illegality.

2.	The application is supported by the 1st defendant and opposed by the plaintiff.

Affidavit in Support

3.	The 2nd defendant deposed an affidavit and stated that the plaintiff's occupation of the market area was illegal in that prior consent of the Director of Lands was never obtained and no action can be based on an illegal occupation of the land. 

Affidavit in Opposition

4.	The plaintiff contends that the action in the Court is for trespass and malicious damages inflicted upon the plaintiff by the defendants when the plaintiff was lawfully occupying a portion of the market. The plaintiff further stated that the 1st defendant had been empowered by the Director of Lands to install kiosks, shops and booths for selling produce. Based on that consent, the 1st defendant gave the plaintiff licence to occupy the premises. Even if there was any illegality in the occupation, for want of compliance with the law, the defendants did not obtain any licence by such illegality, to raid and destroy the plaintiff's chattels and goods at night.

The Claim

5.	The gist of the plaintiff's claim is that he had been a tenant of the 1st defendant at the Labasa municipal market since 1996. The plaintiff had a merchandise business and traded in sale of varieties of root crop, sea food and other foodstuff. The plaintiff claims that on 29th May 2001, by a letter, the 1st defendant granted and/or confirmed the plaintiff's tenancy for a term of 3 years from 1st January 2002 at a rental of $1100 per month. The plaintiff says that it accepted the tenancy or lease for 3 years and acted and relied on it. It developed and expanded the business. It was an implied term of the tenancy that the plaintiff will enjoy peaceful use and occupation of the rental premise without any hindrance, molestation, interruption, interference or disturbance by the 1st defendant, its servants or agents. The 1st defendant, it is alleged, breached this term of the tenancy agreement by itself and by its servants and agents when it unlawfully, in the night of the 30 day of April, 2003, entered the plaintiff's premises without permission, and caused loss to the plaintiff's stock of goods inside and outside the shop. The 1st defendant by its agents, including the 2nd defendant, broke and entered into the shop and removed all stock and threw the same outside the premises. As a result, the goods were either damaged or stolen. The 2nd defendant, as a mayor, authorised the people to cause such interference, for his personal gain, as the plaintiff's premises was close and adjacent to the business premises of the 2nd defendant. This exercise was undertaken by the 2nd defendant to grow his own business as the plaintiff's business was in competition with the 2nd defendant's business. The 2nd defendant further wanted the plaintiff's premises to be removed in order for the market place to be moved so that the movement of the market was going to create parking space near the 2nd defendants business. 

The Submissions

6.	The 2nd defendants counsel Mr. Sarju Prasad argued that there is no cause of action against the 2nd defendant. If there is any claim, it is against the 1st defendant. The 1st defendant was alleged to be the plaintiff's landlord and any interference to any right of quiet enjoyment lies only against the 1st defendant. The law requires that the principal be sued when it is known. In this case, the 2nd defendant was the mayor of the 1st defendant so the principal must be sued. There is no privity of contract with the 2nd defendant and thus any claim against the 2nd defendant should fail. It is clear that s.13 of the Crown Lands Act had been breached, in that, the consent of the Director of Lands to occupy the portion of the municipal market had not been obtained and thus the occupation of the premises was illegal and no action can be based arising out of the lease. It was also argued that under s. 59(e) of the indemnity, Guarantee and Bailment Act, the plaintiff has failed to produce any lease agreement. Mr. Prasad further stated that section 18 of the Local Government Act prohibits any action being taken against the councillors and thus this claim cannot be maintained. The action is an abuse of the process of the Court and is frivolous and vexatious as well, as the 2nd defendant has statutory defences which will invariably be applied. There is an ulterior movie in filing an action against the 2nd defendant.

7.	Mr A. Ram, counsel for the 1st defendant stated that the 1st defendant was also supporting the application. Mr. Ram submitted that s. 59(e) of the indemnity, Guarantee and Bailment Act states that "no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised". Mr. Ram submitted that Mr. Sen had an opportunity to disclose the tenancy agreement upon which it relied to sue, but no evidence had been attached to the affidavit and as such there is nothing in writing to bring an action. Mr. Ram further argued that s.13 of the Crown Lands Act had been surpassed, in that, no consent was given for the plaintiff's occupation by the Director of Lands. Section 13 binds the Director of Lands and the Director of Lands cannot waive the requirement. There was no lawful occupation for the court to recognise the plaintiff's claim for unlawful interference.

8.	Mr. Sen, counsel for the plaintiff submitted that his claim lies in trespass and unlawful interference. He further stated that the 2nd defendant acted in bad faith to further his business interest and as such the plaint is against him personally too. There is a lease annexed to the affidavit of the 2nd defendant. That lease is from the Director of Lands to the Labasa Township Board. The Director has leased the property in question to the Labasa Township Board. Part of the property was given to the plaintiff on rent. The lease contains a clause being clause 4 which permits the 1st defendant to grant licence for shops and kiosks without the consent of the Director of Lands. No consent thus was required for the plaintiffs use and occupation of the market area. In any event, even if consent was required, the defendants did not have any mandate to act in the way they did by unlawfully entering and interfering with the plaintiff's premises and goods.

9.	In reply to Mr. Sen's opposition, Mr. S. Prasad submitted that his client was only operating on instructions of the 1st defendant as its mayor and no action can be brought against him personally.

10.	Mr. A. Ram responded and stated that the Director of Lands had acted ultra vires in drafting clause 4 of the lease to the 1st defendant. The test of trespass also requires the plaintiff to show that it rightfully and lawfully occupied the property. Both s.13 of the Crown Lands Act and s.59 of the Indemnity, Guarantee and Bailment Act, stand against the plaintiff's assertion that it had a lawful right to occupy the property. 

The Law and the Determination

11.	The law on striking out is voluminous. It is impossible to refer to the exhaustive law in this area. I will therefore refer to the same as and when necessary.

12.	A reading of the statement of claim indicates that the plaintiff has pleaded a contractual claim for breach of contract being the tenancy agreement, and a tortuous claim for trespass to goods and property.

13.	On the contractual claim, both the defendants are contending that the contract is illegal for breach of a mandatory statutory requirement. It is stated that the plaintiff's occupation of the property was without the consent of the Director of Lands, and as such the plaintiff's occupation of the market area was illegal. It thus cannot sue the defendants arising out of an unlawful occupation of the property. The 2nd defendant is further contending that he is not personally liable for breach of any contract against the 2nd defendant, as the agreement was between the plaintiff and the 1st defendant. 

14.	Let me examine s. 13 of the Crown Lands Act, Cap. 32. It reads:-

"s.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..."

15.	S. 13 has to be dealt with against the lease. It is undisputed and clear that the property in question was leased to the 1st defendant by the Director of Lands and the property is a protected leased under s. 13 of the Crown Lands Act.

16.	Clauses 3 and 4 of the said lease is very essential is determining the aspect of consent. It reads as follows:-

"3. 	The lessee shall use the demised land solely for the purposes of market, car park and a motor omnibus station: provided that the lessee may in addition to or as part of any building or other structure erected in connection with those purposes construct or provide on the demised land such kiosks, shops office stalls, or booths and space for the installation and use of automatic dispensing machines as in the opinion of the lessor shall not prejudicially affect the use of the demised land for the general purposes of a market, car park and motor omnibus station.

4. 	The lessee shall not without the consent in writing of the lessor transfer sublet assign or part with possession of the demised land or any part thereof provided however that lessee shall be entitled without such consent to sublet or licence the use of any part of any building or structure on the demised land for advertising purposes or any kiosks, shops, offices, stalls, booths or space for automatic dispensing machines constructed or provided by the lessee on the demised land in conformity with the provisions or condition (3) hereof to such persons and at such rents or fees and upon such other terms and conditions as the lessee may think fit".

17.	By Clause 3 of the lease, the Director of Lands has given the 1st defendant consent to use the land for market, car park and a motor omnibus station for general purpose and also given consent to construct or provide on the land kiosks, shops, office, stalls, booths, and space for installation and use of automatic dispensing machines for the fulfilment of the general purpose.

18.	By clause 4 of the lease, the Director of Lands has given permission to sublet or licence the use of any building or structure in the land for any kiosks, shops, advertisements, offices, stalls, booths or space for automatic dispensing machines, without obtaining consent of the Director of Lands. This permission in itself, is a blanket consent from the Director of Lands to the 1st defendant to sublet or give licence for the said purposes. There is a purpose for giving such blanket consent, and, that is, that the 1st defendant will definitely sublet or give licence to many people to occupy the market place and the marketeers change every often. It basically is an impossible task for the 1st defendant to successfully run the market without this blanket consent in lieu of which the Director will have to give separate individual consent every time. One can easily speculate the administrative hassle the lessor and the lessee will have to undergo if such a blanket consent was not provided. So by saying that no consent is needed for subletting for kiosks and shops, the Director has given its consent for such purposes and I hold that such blanket consent is given in good faith and motive.

19.	The plaintiff contends that it used part of the market area and had his shop for sale of consumables and others items which are sold in the market place. If that is the business that the plaintiff was operating, then his business operation was fully consented to by the Director of Lands via clauses 3 and 4 of the lease. I fail to fathom how the defendants have blatantly chosen to overlook these clauses of the lease and make an unintelligible issue out of a clear and precise consent. The argument on consent holds no merits. 

20.	The next is the issue of tenancy agreement to be in writing. The plaintiff has pleaded that he was a tenant of the 1st defendant since 1996 and the tenancy agreement was extended by a letter. Mr. Ram's concern is that Mr. Sen should have produced something in writing to establish that fact of tenancy and that he has failed to do so. The issue of tenancy is a question of fact that has to be established upon evidence. Oral and written evidence will both be essential in establishing the plaintiff's claim. It is only at trial that extensive oral and written evidence will clarify the aspect of tenancy, thus a trial is necessary. The defendants want this aspect to be clarified without a trial. That is naivety. 

21.	The next aspect is the 2nd defendant's issue that he is not the landlord, so the claim cannot be against him for breach of tenancy agreement. Perhaps the 2nd defendant has failed to read the claim in the manner it is pleaded. The claim is also for trespass to goods and land. The plaintiff has pleaded that the 2nd defendant had a bad intention towards the plaintiff and his business which caused the interference with the plaintiff's goods and property. This claim is pleaded against the defendant in his personal capacity too and that could only be established upon evidence given by the parties. 

22.	The claim is based on tort of trespass and at least the claim for trespass to goods can be tried independently of the issue of s. 13 consent. 

23.	I see no basis for the striking out application. This is yet again one of the matters in which striking out was filed without any assessment of the pleadings. The plaintiff has been put to preparing and filing an affidavit to respond to the application, to prepare for the hearing of the application and to argue the same in Court. I am of the judgment that if the defendants did care to carefully look at the plaintiff's claim and the existing lease, this application for striking out would not have been filed or even contemplated. The plaintiff is entitled to costs which I intend to summarily assess. The 1st defendant too, must pay costs, although it did not bring the application. However the bulk of the cost must be paid by the 2nd defendant as the application emanated from him.

24.	The matter, in my assessment is ready for trial and should be given a trial date by the Master of the Court.

Orders 

25.	For the above reasons, the application for striking out is refused and dismissed.
26.	I order costs against the defendants in the sum of $1000, to be apportioned between the 1st and the 2nd defendant in the sum of $350 and $650 respectively.
27.	The defendants must pay the costs within 21 days.
28.	The Master must now proceed to fix a trial date.
29.	Orders accordingly.

____________________
Anjala Wati
Judge
04.10.2011
At Labasa

To:

1.	Mr. A. Sen for the plaintiff;
2.	Mr A. Ram for the 1st defendant; 
3.	Mr. S. Prasad for the 2nd defendant; and
4.	File: HBC 9 of 2005.