IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 197 OF 2012

BETWEEN:

PREM KRISHNA GOUNDAR 
of Nasese, Suva in the Republic of Fiji, Self-employed.
PLAINTIFF

AND:

FIESTY LIMITED,
 a limited liability company having its registered office at Suva in the Republic of the Fiji Islands.
FIRST DEFENDANT

AND:

MINISTRY OF LANDS & MINERAL RESOURCES
SECOND DEFENDANT

AND:

THE ATTORNEY GENERAL OF FIJI
THIRD DEFENDANT

COUNSELS : Mr Vakaloloma of Vakaloloma & Associates for the Plaintiff
Mr D Sharma of R Patel Lawyers for 1st Defendant
Ms Karan N of AG's Chambers for 2nd & 3rd Defendants

Date of Hearing : 23rd August, 2012
Date of Order : 30th November, 2012

ORDER

1.	The Plaintiff filed writ of summons on 17th July 2012 against the Defendants claiming damages and costs. On the very same day Ex-parte Notice of Motion was filed, supported by the affidavit of the Plaintiff Prem Krishna Goundar.

2.	However, having read the statement of claim and the affidavit in support, I directed the Court Registry to call the motion inter-partes and to mention the case on 13th August 2012.

3.	The 1st Defendant filed its affidavit sworn by Peni Gavidi in reply on 6th August 2012 and the Statement of Defence on 7th August 2012.

4.	The 2nd and 3rd Defendants filed their joint affidavit and Statement of Defence on 20th August 2012 and the affidavit was sworn by Mr Luke Rokomokoti, Assistant Director of Lands.

5.	Reply (Reponse) to the affidavit of the 1st Defendant dated 3rd August 2012 sworn by Peni Gavidi was filed by the Plaintiff on 14th August 2012. 

6.	Reply to the affidavit of the Plaintiff filed on 14th August was filed by the 1st Defendant sworn by Peni Gavidi dated 21st August 2012.

7.	By the Ex parte Notice of Motion (later it was made interpartes) the Plaintiff sought the following orders:

(a)	FOR AN INTERIM INJUNCTION against the 1st Defendant by them self and/or through their agents and servants and/or her solicitors and/or howsoever from carrying out any further developments around Approval Notice of Lease LD Ref 60/826 and LD Ref 3/16/4105 in the residential purposes island south of Banuve Street, Nasese more or less in any way whatsoever;

(b)	WAIVER for the attainment of the Director of Lands consent in the present proceedings as the Ministry of Lands has been joined as the 2nd Defendant in the present application.

There were certain preliminary issues raised by the Defendants which will be dealt at the outset of this Order.

8.	This application was mentioned before me on 13th August 2012 and the matter was fixed for hearing on 23rd August 2012. Written submissions was filed by the Plaintiff on 22nd August 2012 and the 1st Defendant tendered its submissions to the court on 23rd August 2012, at the hearing.

9.	When the hearing was taken up on 23rd August 2012, the Plaintiff's counsel stated he is relying on the written submissions filed on 22nd August 2012, and made his oral submissions. 

10.	The counsel for the 1st Defendant and the counsel for the 2nd and 3rd Defendants made their oral submissions. 

11.	The Plaintiff's affidavit sworn by Prem Krishna Goundar states:

(a)	That the Plaintiff is a resident of Nasese who holds a registered tenancy at will for the property referred to as LD4/16/4105;

(b)	1st Defendant is a limited liability company who is the developer and is the lessee of Approval Notice LD Ref 60/826;

(c)	The 2nd Defendant is a government Ministry and is a custodian for all crown lands in the Republic of Fiji. Hence by virtue of such appointment they allocate leases, as a Head of Lessor of all Crown Leases;.

(d)	The 2nd Defendant is being sued by virtue of the Crown proceedings Act as a Legal Custodian of the 2nd Defendant;

(e)	On the 12 March 2012, the 1st Defendant issued Notice to vacate to the Plaintiff to vacate its current property as they have been offered a lease by the 2nd Defendant;

(f)	The Second Defendant whilst issuing the above lease had failed to realize that they had issue the portion of the lot that has been given to the Plaintiff and the same has resided on the property from 1967 until today;

(g)	During the entire period of their abode they have erected 2 residential house comprising a concrete 3 bedroom house with all amenities and a second home with 2 flats;

(h)	The Plaintiff had carried out substantial improvements of the buildings and other improvements in the property valued at $267,000.00;

(i)	Plaintiff pleaded he had been faithful in the payment of all land leases to the 2nd Defendants and has executed all requisite terms and conditions of its lease;

(j)	It was further pleaded that due to the development work carried out by the 1st Defendant hiring heavy equipments and machineries Plaintiffs enjoyment of property being affected, and damages caused to the Plaintiff.

(k)	The Plaintiff had stated there were causes of action arisen to him claim damages from the 1st Defendant for trespassing of his property.

(l)	It was also stated by the Plaintiff that the 2nd Defendant had acted negligence in terms of double dealings by issuing a single land lease to 2 different parties which had adversely caused emotional detriments to the Plaintiff;

(m)	In para 18, 19, 19 (19 repeated no para 20), 21, 22, 23, 24,25 had pleaded inter-alia there will be irreparable loss caused to the Plaintiff damages will not be adequate remedy and sought orders as stated in the inter parties notice of motion filed on 17th July 2012 which Orders were stated in para 7 of this Judgment.

12. It is a matter for concern of this court there were no documents filed as evidence with the affidavit in support of the Notice of Motion to substantiate the averments in the Affidavit.

13. The First Defendant Affidavit raised certain preliminary issues: 

(a)	Peni Gavidi sworn the affidavit dated 3rd August 2012 file on 6th August 2012 on behalf of the 1st Defendant company in reply to the affidavit in support filed by the Plaintiff;

(b)	Peni Gavidi was authorized to swear the affidavit by the 1st Defendant company by the written authority given on 31st July 2012 Annexure PG1 to the Affidavit. Plaintiff in reply in his affidavit dated 10th August 2012 raised preliminary issue that Peni Gavidi is not duly authorized to swear a affidavit on behalf of the 1st Defendant. This statement was made by the Plaintiff without any basis and without producing any document to the contrary. As such I hold that the document marked PG1 empowered Peni Gavidi to swear the affidavit on behalf of the 1st Defendant pursuant document annexed to the Affidavit marked PG1;

(c)	The 1st Defendant also have raised a preliminary objection in its affidavit (the same objection was raised by the 2nd and 3rd Defendants in their affidavit):

"4(a) I am advised by the First Defendant solicitors that the Plaintiff's affidavit is in breach of order 41 Rule 9(2) of the High Court Rules and had not sought any leave from the Court."

(d)	This court had to make a ruling on this issue before proceeding on the Notice of Motion.

What does Order 41 Rule 9(2) says?

9(2) – This rule applies to all practitioners in Fiji, it ways that every affidavit must be endorsed with a note showing in whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without leave of courts".

On perusal of the affidavit it's observed that the Plaintiff had failed to comply with Order 41 Rule 9(2). In such a situation what steps the Plaintiff would have taken? It is important to note what the Plaintiff's reply in his affidavit dated 20th August 2012 filed on the same day:

"4(a) – That I have been advised by my counsel that the prerogative of accepting court documentations lies with the registry pursuant to Order 41 Rule 9(1). If the affidavit were defective or fails to comply with the provisions pleaded by the 1st Defendant, then it should not have been accepted for filing in the first instance".

As submitted by the 1st Defendant's counsel, the provision in Rule 41 9(1) is not prerogative in the registry. It is encompassed upon the counsel and litigants. Rules are made by the Court for the counsels/solicitors and litigants to follow. I state that the court to note with concern a Senior Counsel in the calibre of Mr Vakaloloma advising his client to make a statement in this nature, in an Affidavit.

It is evident that Plaintiff's counsel had not sought leave from this court to rectify the error and further pleads that accepting the defective affidavit by the registry was wrong. Court registry is not there to check that whether the documents filed are in conformity with the law. As I said earlier, it is the duty of the counsel and litigants if they default, matter to be decided by the court. As such court cannot accommodate such defiance and I hold that the Plaintiff had failed and defaulted in filing affidavit in conformity with the Order 41 Rule (9) (2) of the High Court Rules. I further hold counsel for the Plaintiff had acted in disrespectful manner by advising his client to averred the said statement in his Affidavit.

I also observe that the Affidavit filed by the Plaintiff is undated and in addition to the said default, and it is a serious lache which cannot be excused by this court.

(e)	The First Defendant in para 4(b) to 4(e) of its affidavit states and raised further preliminary issues and the same issues to were raised by the second and third Defendants in their Affidavit in reply dated 20th August 2012 sworn by Luke Rokomokoti:

"4(b) – I believe that the Plaintiff had suppressed material facts and documents in this application and in particular a copy of his Tenancy at will as well as a letter from the Director of Lands dated 22nd June 2010 cancelling his Tenancy at will whereby he was given three months (3) to vacate the land and give possession". A copy of that letter is annexed hereto marked 'PG2'.

"4(c) – That the Plaintiff had failed to obtain the consent of the Director of Lands prior to instituting this action contrary to Section 13 of the State lands Act since the land in question is a protected lease.

4(d) – That the Plaintiff has not provided any relevant evidence in support of his undertaking as to damages as contained in para 22 of his affidavit;

4(e) – That the Plaintiff's action is misconceived as he is seeking to challenge the decision of a public body i.e. a statutory authority without filing a judicial review".

14.	The preliminary issues raised by the 1st Defendant and the 2nd and 3rd Defendants in their affidavits are vital to further proceedings of this matter. As such, it is now important to consider the Plaintiff's position with regard to above issues as stated in his affidavit dated 10th August 2012 sworn by Prem Krishna Goundar.

15.	The Plaintiff in reply to the para 4(b) to 4(e) of the 1st Defendant's affidavit denied the averments and stated (affidavit dated 10th August 2012):

"Para 6 4(b) is denied. The Plaintiff however reiterates that the Defendants itself suppressed the material facts by failing to disclose to the courts that the Plaintiff continues to meet all lease rentals to the 2nd Defendant. The 2nd Defendant continues to demand ground rentals from the Plaintiff and same continues to abide by terms of the Tenancy at Will;

4(c) – is denied. The urgency of the application in view of the devastating developments carried out by the 1st Defendant has caused the Plaintiff to exercise the courts inherent jurisdiction in considering a waiver of the consent in any event, the Director of Lands is a party to the proceedings and they would at any cost refused to consent to our Application for Consent to institute proceedings as it is self incriminating;

4(d) – is denied. The Plaintiff owns a residential property which is valued at $267,000, and the same is offered as security as to costs;

4(e) – is denied. The Plaintiff is challenging the development works being carried out by the 1st Defendant on its surrounding premises which has disrupted road access and water pipes. Such development is disturbing the Plaintiff quite enjoyment of its leased premises which he has enjoyed over a period of more than 20 years".

16.	In consideration of the above, the court has to decide:

(a)	As to whether the Plaintiff's Tenancy at will was cancelled by the Director of Lands by his letter dated 22nd June 2008?

(b)	If the above issue is answered in negative whether the Plaintiff's application fails?

(c)	As to whether non disclosure of the letter dated 22nd June 2010 by the Plaintiff in his Affidavit in support undated and filed on 17th July 2012 is suppression of the material facts?

(d)	If the above issue is answered in affirmative whether the Plaintiff's application fails? 

(e)	As to whether suppression of the letter dated 05/3/2008 by the Plaintiff amounts to suppression of material facts.

(f)	If the issue answered in affirmative whether the Plaintiff's application fails?

(g)	As to whether Plaintiff had to obtain the consent of the Director of Lands in pursuant to Section 13 of the State Lands Act?

(h)	If the above issue is answered in negative as to whether the Plaintiff's application fails? 

(i)	As stated in para 22 of the affidavit in support undated filed on 17th July 2012 whether the Plaintiff had provided any evidence in support of his undertaking as to damages?

(j)	If the above issue is answered in negative whether the Plaintiff's action fails?

(k)	As to whether Plaintiff's action is misconceived and challenging a decision of a public body without filing a Judicial review?

(l)	If the above issue is answered in affirmative, as to whether the Plaintiff can proceed with his Statement of Claim? 

17.	The Plaintiff failed to refer to the letter dated 22nd June 2010 and the court's attention to this letter was drawn by the Defendant annexing the said letter as 'PG2' to its affidavit dated 3rd August 2012. Contents of the letter is reproduced below:

DEPARTMENT OF LANDS & SURVEY
PO BOX 2222
GOVERNMENT BUILDINGS
SUVA, FIJI

Tel No. 3211389
Fax No. 3301720	Ref No. LD 4/16/4105
Date 22/6/10	

REGISTERED MAIL

Prem Krishna Goundar
PO Box 17621
SUVA

Dear Sir,

RE: CANCELLATION OF TENANCY AT WILL FOR RESIDENTIAL PURPOSES ISLAND SOUTH OF BANUVE SREEET AND NORTH OF LAVETI CREEK NASESE, SUVA, REWA

I wish to draw your attention to condition (d) of your Tenancy-At-Will which states as follows:

"This letter shall not operate to create a tenancy in respect of the said land and you may be required to vacate the land on receipt of notice of that effect".

The subject area over which you hold a Tenancy-At-Will is now required by the Government for residential development purposes.

By virtue of condition 4 of your tenancy the Tenancy-At-Will is hereby cancelled.

You are kindly advised to give up vacant possession within three(3) months from the date of this notice.

Your co-operation on the above will be appreciated.

Yours faithfully,

…………………………….
[ T. Nasipi ] [Mr]
for Director of Lands & Surveyor General

cc: Manager Director, Fiesty Limited, PO Box 3692, Samabula, Suva

18.	It is evident by the said letter dated 22nd June 2010, that at the time of filing Notice of Motion, Plaintiff was well aware that there was no Tenancy at Will and the Tenancy at Will was cancelled by the Director of Lands. Plaintiff whilst replying to para 4(b) of the 1st Defendant's affidavit had not answered this averment and stated only that he was meeting the rental payments and alleged that the 1st Defendant had suppressed this information. This is merely to avoid replying the non disclosure and suppression of the letter dated 22nd June 2010. 

I conclude that the 1st Defendant need not to divulge any information with regard to payment of rental if at all it is a matter to be divulged by the 2nd and 3rd Defendants or by the Plaintiff himself. Rental payments were made to the 2nd Defendant. The 1st Defendant wasn't aware of rental payments. By making this statement, Plaintiff had attempted to evade answering the averment 4(b) of the 1st Defendant's affidavit dated 3rd August 2012 which is vital factor for these proceedings. In fact it's evident that once the tenancy at will is cancelled, the Plaintiff had no basis to make the application seeking interim relief. It is my contention the Plaintiff had not only suppressed the letter dated 22/6/2010 by the Director of Lands, he had failed to answer the averment. As such I conclude:

(a)	The Plaintiff's tenancy at will was cancelled on 22/6/2010 by the Director of Lands and Plaintiff is not entitled for a interim relief as per motion;

(b)	The Plaintiff intentionally not disclosed the letter dated 22 June 2010 in his undated affidavit filed on 17th July 2012 and he had suppressed this letter in these proceedings;

(c)	I conclude suppressing and non disclosing the letter dated 22nd June 2010 by the Plaintiff was deliberate action to misrepresent the facts to the court and to obtain interim injunction. It is further evident that if this letter was tendered the Plaintiff could not have sought the Orders in the Notice of Motion;

(d)	The payment of rental was made deliberately to misrepresent the facts, and however there was no valid lease to make the rental payments and the Plaintiff's submission fails.

19.	It was also observed in addition to above, the following non disclosures and suppression of facts and documents:

(i)	It is evident by document dated 5th March 2008, the Plaintiff was authorized to occupy the land in Certificate No. 4/16/4105 (which was the identical land pleaded in para 3 of the Plaintiff's affidavit in support undated filed on 17th July 2012) as a Tenant at Will. This document was not divulged by the Plaintiff or annexed to his affidavit. The document dated 5th March 2008 was divulged by the 2nd and 3rd Defendants which was the Annexure marked LR1 to the affidavit in reply dated 20th August 2012. According to LR1, Tenancy at Will commenced on 1st January 2008 ending on 31st December 2012. On perusal the said document, I find the following conditions:

(a)	The right to occupy and to use the land is not transferable;

(b)	The land described may be used solely for Residential purposes;

(c)	In the event of failure on your part to pay the rental as aforesaid punctually this authority may be cancelled without further notice and you will be required to immediately vacate the land;

(d)	This letter shall not operate to create a tenancy in respect of the said land, and you may be required to vacate the land on receipt of notice to that effect;

(e)	Tenancy at Will issued to Lakshmi Chand is cancelled.

As such the 2nd and 3rd Defendants had proved by submitting documentary evidence annexed to the affidavit that the subject tenancy commenced from 1st January 2008 and not from 1967 as averred by the Plaintiff in para 9 of his affidavit in support undated. I hold the Plaintiff had deliberately suppressed this document without disclosing for the purpose of obtaining Orders as pleaded in the Notice of Motion. 

It is further observed in the Statement of Claim filed by the Plaintiff in paragraph 6 it was stated:

"6. The 2nd Defendant whilst issuing the above lease had failed to realize that they had issued the portion of the lot that has been given to the Plaintiff and the same has resided on the property from 1967 until today."

The same position was averred by the Plaintiff in the affidavit of support. In fact this statement is a false statement which was evident by the letter Annexure LR1 to the affidavit of the 2nd and 3rd Defendants (which letter was issued by the Acting Director of Lands on 13th March 2008). 

It is clearly stated in para (e) of the said letter that Tenancy at Will, issued to Lakshmi Chand was cancelled and effective date of the Tenancy at Will of the Plaintiff was 1st January 2008. Plaintiff had not replied the affidavit of 2nd and 3rd Defendants neither adduced any documentary evidence to establish he had been occupying the land from 1967. To add further Plaintiff had accepted the terms and conditions of the letter dated 5th March 2008. LR4 annexed to the Affidavit filed by the 2nd and 3rd Defendants clearly shows the buildings in the land were erected by the previous lessees and the Plaintiff cannot claim the buildings were erected by him.

The Plaintiff had deliberately suppressed this letter and merely stated he was residing in the land from 1967. This fraudulent and vexatious statement by the Plaintiff who suppressed the material facts to mislead the court.

The Plaintiff had not come to this court with clean hands. Non disclosures of LR1 itself is suffice to dismiss the Orders sought in the Notice of Motion.

20.	Now I address the issue as to whether the Plaintiff had to obtain the consent of the Director of Lands in pursuant to Section 13(1) of the Crown Lands Act (Cap 132):

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, 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 sub lessee.

21.	In light of the above section, the Plaintiff had to obtain consent from the Director of Lands prior to filing of these proceedings by the Plaintiff. I accept the submission made by the counsel for the 1st Defendant and the 2nd and 3rd Defendants and hold that Permanent Secretary of the Ministry of Lands did not have any authority to deal with this Land. He had no authority to send the letter dated 31st August 2010 (referred to by the Plaintiff) to occupy the land. The said letter was issued without any basis on a cancelled lease (on 22nd June 2010). As such the Plaintiff had no basis to seek relief to waiver for the attainment of the Director of Lands consent in the current proceedings and Plaintiff fails. I further conclude the Permanent Secretary before issuing this letter would have checked with Director of Lands who was in charge of the State lands transactions and the Permanent Secretary to Ministry of Lands had acted in a irresponsible manner and without any authority conferred upon him.

22.	Having concluded as above, it is not necessary to consider whether there was evidence in support of his undertaking as to damages. However, in completeness of my Order, I wish to state that the Plaintiff owns a property (subject matter) which is valued at $267,000.00. The Plaintiff was well aware that this lease was cancelled on the property and the Plaintiff offers same as security for costs. I hold Plaintiff failed to offer security for costs and he made false representations to the court.

23.	If at all the Plaintiff would have initiated judicial review on the decision made by the Director of Lands by letter dated 22nd June 2010, and I hold with the 1st Defendant's counsel argument, that this matter would have brought before the courts for judicial review.

24.	Annexure LR1 to the affidavit of the 2nd and 3rd Defendants shows Plaintiff was offered alternative land which was unaccepted by the Plaintiff. I conclude that the Defendants had been acting in very fair manner towards the Plaintiff and Plaintiff was obstructing and was attempting to delay the development of the land by the First Defendant, who has a valid lease as per Document annexed as PG3 to the Affidavit dated 3rd August 2012.

25.	The Plaintiff cited the case of American Cyanamid Co. vs Ethicon Limited (1975) A.C. 396:

(a)	Is there a serious issue to be tried?

(b)	Are damages an adequate remedy?

(c)	If not, where does the balance of convenience lies?

26.	As stated in the previous paragraphs there is no necessity to consider these principles since the Plaintiff failed to submit any material for consideration and in fact he had abused the process of court by non disclosure of the material facts, suppressed the documents and attempted to mislead the court.

27.	The Plaintiff also submitted the decision of the case of Naigulevu vs. National Bank of Fiji [2008] FJHC 141 Civil Action 598.2007 which is not relevant to issues in this case.

28.	I would also quote Lord Diplocks in American Cyanamid case (supra):

"The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial".

In the present case as stated in the preceding paragraphs, the claim is frivolous and vexatious and no serious question to be tried. As such the Plaintiff's claim fails and on the findings of the preliminary issues no case being established to deal in a Trial.

Having concluded as above, I hold that the:

(a)	Plaintiff failed to establish a case to obtain Orders sought in interpartes filed on 17th July 2012;

(b)	The Plaintiff's claim is frivolous and vexatious (paragraphs 13(e), 14, 15, 16, 17, 18 and 19 of the Order;

(c)	The Plaintiff failed to comply with Order 41 Rule 9(2) of the High Court Rules and the said Affidavit was not signed by the deponent and as such there is no legally valid affidavit for consideration by this Court. (Paragraph 13(c) and (d) of this Order;

(d)	The Plaintiff had failed to obtain the consent from the Director of Lands under Section 13(1) of the State Lands Ordinance and further the Director of Lands had not been made a party to this action initiated by Writ of Summons (para 20, 21 and 22 of this Order).

Accordingly, I make the following Orders that:

(i)	The Inter-partes Motion filed on 17th July 2012 be dismissed;

(ii)	The Writ of Summons filed on 17th July 2012 dismissed;

(iii)	The Plaintiff is ordered not to obstruct the development work carried out by the 1st Defendant on the Land described in the annexure marked PG3 to the Affidavit dated 3rd August 2012; 

(iv)	The Plaintiff should pay summarily assessed costs of $3,000 to the 1st Defendant and $1,500 to the 2nd Defendant and further $1,500 to the 3rd Defendant and the payment of the said costs should be made within 14 days from the date of this Order.

Delivered at Suva this 30th Day of November, 2012

[ C. Kotigalage ]
JUDGE