IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 230 of 2005

BETWEEN:

ATISH VISHNU PRASAD 
of Oru, Nausori, Tailevu, Driver.
PLAINTIFF

AND:

VIRENDRA RAJ 
of Nadali, Nausori, Salesperson.
DEFENDANT

Counsel : Ms Prem Narayan for the plaintiff
Ms. L. Macedru for the third party,
Defendant absent and unrepresented

Judgment

1.	In these proceedings filed by way of originating summons, the plaintiff seeks a declaration that the Sale and Purchase Agreement entered into between him and the defendant in respect of the property comprised in Native Lease Contract No NLTB/500334418 is void; and that the defendant has not been a tenant of the property.

The supporting affidavit provides that the plaintiff was a tenant at will of the property and rented a house he built therein to the defendant. Subsequently, he had entered into a Sale and Purchase Agreement dated 5th September,2002, to sell the property to the defendant.
Thereafter, by an "AGREEMENT FOR LEASE", he had obtained leasehold rights from the Native Land Trust Board (NLTB)with effect from 1 January,2005.

The central reason adduced by the plaintiff to declare the Sale and Purchase Agreement void was that he had not obtain the required consent from the NLTB or the landowners, to enter into the agreement. The other reasons are incidental: that stipulations as to installment payments are inconsistent and the property is not described thereto.

The defendant, in his affidavit in reply, states he entered into the agreement in the belief that the property belonged to the plaintiff. It was asserted the plaintiff obtained the "AGREEMENT FOR LEASE", from the NLTB, after the defendant had approached the mataqali land owners to acquire the property.

Upon application by the defendant, Justice Mr Jitoko had granted the defendant leave to add NLTB as a third party.

The affidavit in support, filed on behalf of NLTB, provides that consequent to being enlightened of the breach on the part of the plaintiff, the Board had obtained legal advice. It had been suggested to give the plaintiff 1 month to remedy his breach, failing which the property would be forfeited. Alternatively, the Sale and Purchase Agreement would be formalized, subject to the payment of 20 % of the sale proceeds to the third party.

The matter had been argued before Justice Mr Jitoko and judgment was on notice.

2.	Section 12 of the Native Land Trust Act (cap 134) prohibits the plaintiff from alienating or dealing with the land whether by way of sale, transfer, sub-lease or license without the consent of the lessor and is incorporated in Clause 2 k) of the "AGREEMENT FOR LEASE".

The plaintiff seeks a declaration from this court that his act, intrinsically unlawful from its inception, is void. 

He is met by the principle stated by Lord Mansfield in Holman v Johnson (1775 1 Cowp 341,343, as cited in Chitty on Contracts, Volume 1,General Principles,(29th Ed),pgs 941 -942 as follows:

" The principle of public policy," said Lord Mansfield, "is this: ex dolo malo non oritur action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff."(emphasis added)

Chitty on Contracts(op.cit.) states further:

"The "ex turpi causa defence," as was stated by Kerr L J in Euro-Diam Ltd v Bathurst,{1990]QB 1 "rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts". (emphasis added)

In my judgment, the plaintiff is not entitled to relief .The plaintiff's action is dismissed with costs summarily assessed in a sum of $ 1500 payable by the plaintiff to the defendant.

A.L.B Brito-Mutunayagam
Judge
19th January, 2012