PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji

You are here:  PacLII >> Databases >> High Court of Fiji >> 2013 >> [2013] FJHC 153

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Prasad v Director of Lands and Mineral Resources [2013] FJHC 153; HBC217.2009 (3 April 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 217 of 2009


BETWEEN:


VIJAY PRASAD as the Executor and Trustee in the Estate of
BHAGWAN DIN of Samabula, Suva, Fiji.
PLAINTIFF


AND:


THE DIRECTOR OF LANDS AND MINERAL RESOURCES,
Government Buildings, Suva.
FIRST DEFENDANT


AND:


SAMUELA MATEI aka SAM MATEI of Baulevu, Nausori
SECOND DEFENDANT


AND:


THE ATTORNEY GENERAL OF FIJI,
Suvavou House, Victoria Parade, Suva, Fiji.
THIRD DEFENDANT


COUNSELS : MR MAHARAJ V for the Plaintiff
MS TUIMANU V for the 1st and 3rd Defendants


DATE OF HEARING: 15TH AUGUST, 2012
DATE OF JUDGMENT: 3RD APRIL, 2013


JUDGMENT


  1. The writ of summons filed by the Plaintiff on 23rd July 2009. As detailed in the statement of claim, Plaintiff stated:

Plaintiff's Claim


  1. An order for a Declaration that the Plaintiff entitled to a lease in respect of Lot 2 on R2076 and having reference No. LD 4/14/403.
  2. An Injunction restraining the second Defendant from obstructing or interfering with the Plaintiff's right to quite enjoyment of the said property under further Order of this Court.
  3. Statement of claim was served on the Defendants on 24th July 2009 and Affidavit of Service was filed on 3rd August 2009 and acknowledgement of service was filed by Office of the Solicitor General on behalf of the 1st and 3rd Defendants.
  4. Statement of Defence was filed by the 1st and 3rd Defendants on 27th August 2009 and stated therein:

1st and 3rd Defendants sought:


(a) An Order dismissing the Plaintiff's Claim;

(b) Costs;

(c) Any other relief this Honorable Court deems just.
  1. Plaintiff filed a Reply to the Statement of Defence and further stated:
  2. Summons for directions filed by the Plaintiff on 30th April 2010. Pre trial procedures were taken by the Plaintiff.
  3. Affidavit verifying Plaintiff's list of documents filed on 10th June 2010 and affidavit verifying Defendants list of documents filed on 30th June 2010.
  4. Minutes of the Pre-Trial conference held on 15th day of October 2010 was filed on 10th November 2010.
  5. Agreed bundle of documents, and copy of Pleadings were filed on 7th February 2011.
  6. Affidavits verifying 1st and 3rd Defendants supplementary documents were filed on 22nd March 2012.
  7. Brief of evidence of Ms Keola Wati was filed on 14th August 2012.
  8. This matter was taken up for hearing on 15th August 2012. Plaintiff's counsel stated that the Plaintiff is not pursuing 1st relief prayed in the statement of claim, i.e.

"An order for a Declaration that the Plaintiff is entitled to a lease in respect of Lot 2 on R2076 and Lot 7 on R2076 and having reference no. LD 4/14/1403".


  1. The issues raised in the Pre-Trial conference minutes are as follows:

Issues for Determination


(i) Whether the Plaintiff or his nominee is the legitimate holder of the tenancy at will agreement since 25th November 1959 or before?

(ii) Whether on the representation or otherwise of the servant and or employees of the first Defendant made to the Plaintiff to issue of a proper lease to the Plaintiff?

(iii) Whether upon representations by the first Defendant the Plaintiff occupied and built a permanent structure on the land in question and created a legitimate expectation to Plaintiff to obtain a registered lease?

(iv) Whether the Plaintiff is entitled to the issuance of a proper registered lease from the first Defendant or compensation for development in lieu thereof?

(v) Whether the second Defendant has any rights whatsoever to be on the land and cultivate the same?

(vi) Whether the first Defendant ought to have issued a registered lease under the State Lands Act in the circumstances of this case?

(vii) Whether the Plaintiff has suffered any damages in consequences of the decision of the first Defendant and what is the quantum?

(viii) What is the cost? On party to party basis or on indemnity basis?

(ix) Any other relief the Honorable Court may grant in the circumstances of the case.
  1. However, the Plaintiff having informed the court he is not pursuing the reliefs prayed under para 1 of the statement of claim, I will only deal with the issue of as to whether the Plaintiff is entitle for damages.

Analysis of Evidence Placed Before the Court


  1. Evidence by the Valuer, Mr Ramesh Behari from Fair View Valuations:

It is important to note in the valuation report, it was stated that Mr Vijay Prasad, the Plaintiff in this case instructed Mr Behari to value the property. I also considered the Valuation Report which does not give any basis of the valuation and method of valuation. Accordingly, I cannot concede to accept the valuation given in Plaintiff's exhibit P1, as it is.


  1. Evidence by Ms Keola Wati was filed prior to the hearing by way of brief of evidence which was filed on 24th August 2012 and witness Ms Keola sworn the counsel for the Plaintiff read out the evidence in brief and the Ms Wati admitted that same was signed by her at the office of M.C. Lawyers Solicitors for the Plaintiff.
  2. Ms Wati stated in her evidence in brief:
  3. Under the cross examination by the counsel the witness stated that she was not paying any rent for 40 years.
  4. In the Agreed Bundle of documents Lease document dated 25th November 1959 states:
    1. The right to occupy the land is not Transferrable;
    2. Land may be used for solely for the agricultural purposes and no building may be erected thereon after the date hereof;
    3. The Tenant should vacate the land on receipt of notice to that effect and the letter dated 25th November 1959 does not operate to create a tenancy;
    4. The letter also stated the classification:
Classification
Acres
Cane farm
10.0
House site
0.3

This document is admitted by the Parties in their Statement of Claim and Statement of Defence.


  1. On perusal of the document, I find that although the letter says land may be used solely for agricultural purpose by inserting house site as 0.3 acres and the Director of Lands was aware the lessee had the permission to build a house.
  2. The Statement of Defence paragraph 7 stated that the land was leased out solely for the agricultural purpose. No evidence adduced by the Defendants to prove this position. Only document available to the court to consider was the Crown Lease and I conclude for the reasons set out in the paragraph 19 the 1st Defendant was well aware that the Plaintiff was permitted to have a house in the site.
  3. As I stated in the preceding paragraph 14, the Plaintiff was only pursuing the claim for damages. Already I have concluded that the 1st Defendant was at the time of the issue of the Crown Lease there was a housing site and the Plaintiff's deceased father constructed the house. It is also evident that tenancy created by the First Defendant by letter dated 25th November 1959 Ref. L.D. 4/14/1403 para 5 states:

"................compensation being payable for improvement as such the Plaintiff is entitled for compensation as damages".


  1. The document marked P1 and tendered in these proceedings through the Valuer, Mr Ramesh Behari was not contested by the 1st and 3rd Defendants. As I stated earlier, I am not satisfied with the valuation report since the valuation do not give any basis only statement made therein is "improvements made thereon as at date of valuation at Twenty Seven Thousand Dollars ($27,000)":

(b) The only reason to award damages by me on this valuation is that it was not disputed by the Defendants and no evidence placed before me to the contrary. However, I use the inherent jurisdiction of this court to arrive at a figure considering depreciation of the value on improvements and conclude depreciating the value by 25% of the P1:


Valuation
$27,000.00
Less 25% for depreciation
6,750.00

(27000 x 25/100)
Value $20,250.00


(c) The Defendants should have paid for the improvements on the above value soon after the cancellation of the Tenancy created by the Crown Lease on the Plaintiff by letter dated 16/7/2007. The 1st Defendant failed to do so. I award interest to the Plaintiff at 4% per annum from the date of the cancellation up to the date of this Judgment considering loss of income on the compensation as at 3rd April 2013.


Amount payable as compensation/damages:


  1. $20,250 from 16.7.2007 to 15.7.2012 (5 years)

(20,250 x 4 x 5) = $ 4050.00

100


  1. Interest for 261 days 20250 x 4 x 261 = $ 579.20 100 365

Total compensation to be paid:


Compensation = 20,250.00


  1. Add interest for 5 years = 4,050.00
  2. Add interest for 261 days= 579.20

$24,879.20


The damages arisen due to the action of the 1st Defendant and I conclude the First Defendant should pay the compensation as Special Damages, there is no liability of damages being proven against the 2nd Defendant. 3rd Defendant is added as the legal representative of the Government of Fiji only and awarding damages does not arise.


  1. Accordingly, I order:

Delivered at Suva this 3rd Day of April, 2013.


.................................

C. Kotigalage

JUDGE


PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2013/153.html