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Hughes v Sabui [2011] FJHC 759; HBC267.2006L (22 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 267 of 2006L

BETWEEN:

ANARE NASOQIRI HUGHES
Plaintiff

AND:

JOSAIA SABUI, OPETI NAIO & MATAQALI NAVUNIREWA
First Defendants

AND:

iTAUKEI LAND TRUST BOARD
Second Defendant

JUDGMENT AFTER TRIAL

Judgment of: Inoke J.

Counsel Appearing: Mr S Nacolawa (Plaintiff)
No Appearance (1st Defendants)
Mr I Lutumailagi (2nd Defendant)

Solicitors: Nacolawa & Co (Plaintiff)
No representation (1st Defendants)
In-house solicitors (2nd Defendant)

Dates of Hearing: 28 June, 23 August and 2 September 2011; plaintiff's written submissions filed on 12 October 2011.

Date of Judgment: 22 November 2011

INTRODUCTION

[1] The plaintiff was the lessee of a sugar cane farm of iTaukei land administered by the second defendant. The first defendants are the beneficial owners of the land. The plaintiff claims that after his lease expired the second defendant granted him a residential lease of part of the land for a further thirty years. However, the second defendant reneged on their agreement and under threat and intimidation by the second defendants he was evicted instead. He had to dismantle the substantial house and other improvements which he had built on the land and move somewhere else. This is his claim for damages against the defendants.

CASE HISTORY

[2] The Writ of Summons and Statement of Claim was filed on 4 September 2006. The second defendant filed its defence on 15 January 2007. The summons for directions was filed on 8 February 2007 and the order on the summons was granted on 28 February 2007. The matter did not progress any further so on 15 December 2008 the deputy registrar issued a "show cause" notice under O 25 r 9 of the HCR why the action should not be struck out for want of prosecution. The matter came before Master Udit on 12 February 2009 who gave further directions and adjourned it to 15 April 2009. Because of the closure of the Courts in April 2009, the matter did not come to be called again until 10 September 2009 before Master Tuilevuka. It was mentioned on three more occasions without real progress until the plaintiff entered default judgment against the first defendants on 23 November 2009 for not having filed a defence. On 18 March 2010, the second defendant filed an application to strike out the claim against it for want of prosecution. The Master set the application down for hearing on 7 June 2010. It is not clear from the file what transpired but it appears that the parties agreed to a timetable to complete the pre-trial steps. The Pre-trial Conference took place on 16 August 2010 before the Master who gave further directions and adjourned the matter to 20 August 2010. Nine further attendances later, on 3 February 2011 I set the matter down for hearing on 28 June 2011. The hearing started on 28 June 2011 and adjourned to 23 August 2011 for continuation but could not continue on that day because a particular witness was not available so it was further adjourned and the hearing concluded on 2 September 2011. Counsels were given 21 days to file written submissions but as at the time of writing this judgment, only counsel for the plaintiff filed his submissions.

THE STATEMENT OF CLAIM

[3] The plaintiff's statement of claim states that he was the tenant of land known as Delaivalewasenivau Lease No 18046 S/D Lot 1 NLTB Ref No 4/1/7159 – OLD REF 4/1/1799 containing an area of about 6 hectares in Vatulaulau in Ba. The land was a sugar cane farm. The initial lease expired on 1 July 1984 and extended for a further 20 years to 30 June 2004. The initial lessee was Asaeli Nasoqiri Hughes (plaintiff's father) who died in 1993 and his estate was passed on to his wife (plaintiff's mother). In about August 2004 the plaintiff approached the first defendant landowners and asked in the traditional way for them to issue him a residential lease of the land for 30 years. His requested was accepted by the first defendants. He was then approached by the second defendant to pay $5,000 as goodwill for the issue of the new lease. The plaintiff then paid $950 with the balance to be paid later. The officers of the second defendant and representatives of the second defendants then visited the land and marked out the boundaries. In about May 2005, the plaintiff lodged his application with the second defendant which was accepted with certain conditions. Despite their binding agreement, the first and second defendant foreclosed and the plaintiff had to dismantle his house and move out of the land. The house was worth $80,000. The plaintiff has suffered loss and claims the sum of $80,000 as special damages, general damages including punitive and exemplary damages, interest at 13.5% and costs.

[4] Although the basis of claim was not precisely pleaded, I take the claim as one based on breach of an agreement to lease or alternatively estoppel by representation.

THE DEFENCE

[5] The second defendant admitted that it issued part of the land as an agricultural lease to a member of the first defendant landowners but refused to issue a residential lease to the plaintiff. But it says that there was no binding lease because none had been issued and the defendant could withdraw acceptance of a request for a lease at any time before a lease is issued. It admits that one of its officers inspected the land on 15 August 2005 for the purposes of making a recommendation. The second defendant further says that the plaintiff applied for a lease on 9 August 2004 and 18 members of the landowners wrote a letter in support on 11 May 2005 but denies that it accepted the plaintiff's application. It did not offer a lease to the plaintiff because it considered that it was for the benefit of the landowners that the lease should not be issued to the plaintiff. The second defendant also pleaded that the plaintiff and his son assaulted members of the landowners in February 2006 so on 27 February 2006 the head of the landowners instructed the second defendant not to grant a lease to the plaintiff. By notice dated 6 July 2006, the second defendant gave notice to the plaintiff to vacate the land and remove any buildings he may have erected thereon. The second defendant denies making any representation to the plaintiff that he would be issued a lease.

THE ADMITTED FACTS

[6] Apart from the facts admitted in the pleadings as referred to above, the parties agreed that the plaintiff was a tenant of the second defendant over Native Lease 18046, which lease expired on 30 June 2004. He was given a one year grace period after that to remain on the land.

THE AGREED BUNDLE OF DOCUMENTS

[7] The parties filed an agreed bundle of documents (ABD) as well as individual bundles and supplementary bundles which in most cases were of documents already compiled in the ABD.

[8] As is the practice, these documents were tendered under the hearsay provisions of the Civil Evidence Act 2002 and were subject to the parties' right to challenge their authenticity and to the Judge's discretion as to what weight he was to attach to their contents.

THE EVIDENCE AT THE HEARING

[9] The first defendants took no part in these proceedings right from the beginning. Consequently, the plaintiff entered judgment in default of defence against them on 23 November 2009.

The evidence for the plaintiff

[10] The plaintiff, Anare Nasoqiri Hughes, gave evidence first. The initial lease was NL 18046[1] which expired on 30 June 1984 and then extended by NL 210234[2] for a further 20 years from 1 July 1984. The lease was in the name of Asaeli Nasoqiri. He said he spoke to the first named first defendant who was the "Turaga ni mataqali" and members of the landowners before the lease expired. They told him that they would give him a residential lease if he paid $5,000 and gave them a "tabua". He accepted the offer and made a payment of $950 and gave them the "tabua". Then an officer of the second defendant came to him with a letter. The letter was dated 1 October 2004[3]. In that letter, the second defendant gave him a grace period of 1 year from the date of expiry of his lease. He said the officer came and worked with his son to mark the boundaries.

[11] He then received a letter from the second defendant dated 6 July 2006[4] giving him notice to vacate the land by 7 August 2006 and remove any buildings erected thereon. He then went to seek advice from Mary Chapman who was the secretary general for parliament at the time. She wrote a letter to the Minister for Fijian Affairs on 20 July 2006[5] on his behalf seeking the Minister's intervention. He had also sent the particulars[6] of his file held at the second defendant's office to Mrs Chapman.

[12] He was sent a second notice from the second defendant dated 7 August 2006[7] giving him to 21 August 2006 to vacate the land and remove the buildings erected thereon, otherwise legal action would follow. He then started dismantling his house. It was a four bedroom house with two sitting rooms, two toilets and one bathroom with an estimated value of $85,000. He took the dismantled house and moved out of the land.

[13] In cross examination he said he did not receive an offer of a lease from the second defendant.

[14] The second witness for the plaintiff was a registered property valuer. She gave evidence on the value of the improvements on the land as at 2005/6. She assessed the market value of the house and other improvements on the land as at June 2006 to be $60,000. It was not seriously challenged in cross examination so I accept the report as accurate.

The evidence for the defendant

[15] Estate officer, Etuate Mataitini, gave evidence for the second defendant. He said when this lease expired, the plaintiff was given a grace period of one year which expired on 31 December 2005. The landowners wanted the land back for their own use. Initially, they had intended to offer a residential lease to the plaintiff but they changed their minds following reports of threats and assault on one of the landowners by the plaintiff. Following that the second defendant issued a 30 day notice. That was the notice dated 6 July 2006[8]. The plaintiff dismantled his house over the week before the expiry of the notice and removed all his belongings.

[16] In cross examination he acknowledged that the second defendant issued a receipt[9] dated 9 July 2004 for an application for a lease by the plaintiff. He admitted that at the time he was responsible for the area in question and he would have consulted the landowners but he did not recall consulting the plaintiff. Normally both landowners and tenant were consulted. But he was aware that the second defendant was processing the plaintiff's application and the lease was assigned to the plaintiff. All that was left was the formalisation of the lease. The notice of 6 July 2006 was issued because of two things: (1) reports by landowners of animosity because of threats and intimidation and assault by the plaintiff, and (2) non-clearance of the lease offer payments. When it was put to him that they decided to breach the allocation of the land to the plaintiff, the witness answered that they saw it fit at the time because of the tense situation. They did not consult the police but consulted the provincial office instead. He also said that it was part of the second defendant's responsibility to protect their tenants. It was in the best interests of the plaintiff and his family because of the fear of being attacked by the landowners. He had been through the second defendant's file on the morning of the hearing but could not find an offer for lease in the file. But he said a lease could have been offered. He was not aware of a written withdrawal of the landowners' consent. He also said there was a report on the file about the allegations of threats but the documents had not been discovered.

[17] In re-examination, the witness said that following consultations with the landowners, they signed a letter of consent[10] to lease to the plaintiff. The particulars of the second defendant's file[11] indicated that a lease had been offered but the witness could not confirm that a lease had been issued.

ANALYSIS OF THE EVIDENCE AND FINDINGS

[18] The discovery of documents by the second defendant is quite unsatisfactory. It was incomplete and selective discovery. It seems to me that someone had removed documents from the file. The estate officer that gave evidence was very unsure of what took place and his evidence was essentially an interpretation of what was on the file.

[19] It is not in dispute that the plaintiff applied for a lease on 9 July 2004. On 11 May 2005, the first defendants gave their consent to lease. I accept the plaintiff's evidence that he paid $950 as "goodwill" and gave a tabua to the first defendants to secure their consent. The lease particulars[12] in the second defendant's file confirm the issue of a residential lease to the plaintiff with a term of 30 years commencing from 29 September 2004 at a rental of $350 pa. The plaintiff had paid part of the consideration but was prevented by both the defendants from paying the balance and completing the lease when the plaintiff was given notice to vacate. There was therefore a binding agreement for the second defendant to issue to the plaintiff a residential lease of part of the land. I also find as a fact that a lease had been issued to the plaintiff. The second defendant was in breach of the agreement to issue a lease by withdrawing the lease and giving notice requiring the plaintiff to vacate the land and remove the improvements on it.

[20] I also find that there was a binding agreement between the first defendants and the plaintiff to give their consent for the plaintiff to have a residential lease of part of the land. There may have been some animosity between some of the members of the first defendants and the plaintiff but that was not a good reason for the second defendant to withdraw the plaintiff's residential lease. The consent was not withdrawn in fact, and in any event, there was no evidence that the majority of the defendant landowners did not consent or wanted to withdraw their consent to the issue of residential lease to the plaintiff. Further, the two reasons given by the estate officer for the refusal to issue the lease was not stated in any of the documents discovered by the second defendant.

[21] Having found on the facts that there was a binding agreement to lease it is unnecessary to consider equitable estoppel and promissory estoppel as discussed in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 (19 February 1988).

LIABILITY

[22] I find that both the first and the second defendants were in breach of their agreements to give consent to lease and to issue a lease to the plaintiff by giving notice to the plaintiff to vacate and remove the improvements on the land.

[23] I accept the evidence of the valuer that the value of the improvements were $60,000. There was no evidence as to how much of the materials were reusable but I make no allowance for that because what the plaintiff lost was more than just building materials. He lost a 30 year residential lease which would be worth substantially more.

[24] I therefore find the first and second defendants jointly and severally liable to the plaintiff for the sum of $60,000.

COSTS

[25] The plaintiff is entitled to his costs which I summarily assess as $2,500.

ORDERS

[26] I therefore make the following orders:

• (a) The first and second defendants, jointly and severally, shall pay to the plaintiff the sum of $60,000.
  
• (b) The first and second defendants shall pay the plaintiff's costs of this action of $2,500 within 21 days.
  

Sosefo Inoke
Judge

^[1] ABD 8
^[2] ABD 9
^[3] ABD 10
^[4] ABD 11
^[5] ABD 4
^[6] ABD 3
^[7] ABD 6
^[8] ABD 11
^[9] ABD 1
^[10] ABD 2
^[11] ABD 3
^[12] ABD 3