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Nair v Devi [2013] FJHC 45; Civil Action 02.2012 (6 February 2013)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 2/12

BETWEEN:

MICHAEL GERRARD KRISHNA NAIR of Colonial
Liquor Centre, York Street, Russell Bay of Islands, New Zealand, Businessman.
PLAINTIFF

AND:

SANGEETA DEVI of Naqara, Taveuni, Businesswoman.
DEFENDANT

Before: Master Robinson Esq.

Appearances: Mr. Ram of Gibson & Co for the Plaintiff
Mr. Sharma of Samusamuvodre Sharma Law for the Defendant.

RULING

Introduction

This is an application by the Plaintiff pursuant to section 169 of the Land Transfer Act, for the Defendant to give up vacant possession of the Plaintiff’s property. The property is described in Native Lease No: 25604 as the land known as “Weni No: 4 in the District of Cakaudrove” and comprising an area of .4123ha. Upon this land is erected a dwelling house. The Plaintiff who now resides at the Bay of Islands in New Zealand, initially agreed that the Defendant rent the premises on a monthly basis. This agreement was oral. By letter dated 23 May 2011 the Plaintiff gave the Defendant notice that the agreement of tenancy would be terminated by the 30 June 2011 and that the Defendant was to vacate the premises and pay any outstanding rent by the said time. The notice to vacate was given because the Defendant had not paid any rent for some time. The non payment of rent by the Defendant appears to be the result of an advice given her by the Plaintiff’s lessor, the iTLTB, that the property could not be rented or sub-leased without its consent and therefore she ought not to pay any rent. The application before the Court arose from the above set of circumstances.

The Affidavit Evidence

The Plaintiff in support of his application filed an affidavit sworn by him on the 13 January 2012 which states that he is the registered proprietor of Native Lease No. 25604 known as Weni No. 4 in the District of Cakaudrove comprising an area of 0.4123 ha. Upon this land is built a house. In support of this statement he attached to his affidavit a copy of the registered native lease of the subject land bearing his name and the date of registration.

That the said dwelling house was rented on a monthly tenancy to the Defendant. That on the Defendant’s failure to pay rent she was then requested to vacate the premises. That on the 26th of May the Defendant was served with a written “Notice to Quit” which terminated any right of tenancy or of occupation from 30th day of June 2011. That despite the service of the Notice to Quit the Defendant has failed to give up vacant possession of the said property.

The Defendant opposes the application and filed an extensive affidavit in opposition which states briefly that she denies that she had no right to remain on the premises. That the Plaintiff offered her to stay on the said premises and operate her business. That there were terms or conditions attached to this agreement, although it was made orally, and that after agreeing to those conditions she took possession of the property. She was also informed that she could stay on the premises for as long as she wishes and that she will be given the first opportunity to purchase the said premises should the Plaintiff intend to sell. That she was further told that if she wish to develop and/or make improvements to the said premises to her liking then she can do so on a temporary basis. That she was also told that if anyone enquires about her occupation of the premises that she should tell them that she is the caretaker and not to tell anyone that she was paying for the lease. She was then requested to pay the Plaintiff $3,500.00 [Three Thousand Five Hundred Dollars] in advance which she did. That the house was very old and needed repairs and that she repaired the house at her own expanse and after assurances given to her by the Plaintiff developed and maintained the premises. That she spent around $8,000.00 [Eight Thousand Dollars] in repairing, developing and maintaining the premises.

That several months after her occupation the iTaukei Land Trust Board [iTLTB] officers came on the said premises and placed a notice which stated that the rental were in arrears. She was later informed, sometimes in 2010 by the iTLTB officers that they were not aware that she was residing in the said premises as the Plaintiff had not informed them nor obtained their consent for her to occupy the said premises and was advised not to pay any more monies to the Plaintiff. That given the amount of money she has spent in maintaining and developing the premises she believes that she has an interest in the said land.

The Plaintiff then replied to the affidavit in opposition and stated that the Plaintiff has acknowledged that no consent of the iTaukei Land Trust Board was ever obtained for the subletting of the premises to the Defendant. Therefore the Defendant has no right or title to occupation of or to remain in possession of the said land. That the Defendant has taken advantage of the goodwill and sympathy of the Plaintiff and abused his generosity by failing to pay the agreed rent and that she approached the iTaukei Land Trust Board with a view to bringing about the termination of the Plaintiff’s lease for breach of its condition and thereafter sought a fresh lease of the land and buildings for herself. That she has acted dishonestly with the Plaintiff. The Plaintiff further states that any improvements on the premises were without his authority was temporary only and for the benefit of the Defendant which could be removed when she vacates the premises.

Consideration of the Application

Both Counsels provided lengthy submissions in support of their applications the Plaintiff in particular referred to the absence of consent by the lessor as one of the basis upon which an order to vacate should be made and further that the agreement between the parties was null and void. The defendant however used the lack of consent as denying the Plaintiff the right to institute proceedings in court. And that further by virtue of the “agreement” entered into between the parties she has cause to remain on the premises.

It is clear from the affidavit evidence provided by the Plaintiff that the land in question is Native Land and the Plaintiff is the lessee and the iTaukei Land Trust Board, the lessor. The lease granted to the Plaintiff was registered on the 9 February 2001. The effect of registration of a native lease with the Registrar of Titles is that upon registration it becomes subject to the Land Transfer Act. Section 10(2) of the Native Land Trust Act, Cap 134 states:-

(2) When a lease made under the provisions of this Act has been registered it shall be subject to the provisions of the Land Transfer Act, so far as the same are not inconsistent with this Act, in the same manner as if such lease has been made under that Act, and shall be dealt with in a like manner as a lease so made.(Cap. 131.)

Section 169 of the Land Transfer Act under which this application is made states:-

“The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

The first question then is under which ambit of section 169 is the application being made? The application could not be made under the second or third limb of the section since the applicant is the lessee and not the lessor as is required under these provisions. But is the applicant a registered proprietor? A proprietor under the Land Transfer Act means the registered proprietor of any land, or of an estate or interest therein”. The registration of the lease under a statutory authority, the iTLTB Act Cap 134, creates a legal interest on the land making the applicant the registered proprietor of the land for the purposes of the Land Transfer Act. He can therefore make an application under section 169 of the Land Transfer Act.

The onus is now on the Defendant to show cause why she should not give up vacant possession and in this regard the Defendant must show on affidavit evidence why the Court should not make an order for vacant possession. This is what section 172 requires. This section provides “that if the person summoned appears he may show cause why he/she refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled”

She does not have to prove a conclusive right to remain in possession only some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited –v Liaquat Ali (Action No: 153/87)

The phrase tangible evidence has often been used as a general criteria establishing a right or cause why the Court should not make an order for vacant possession under section 169. For the evidence to be tangible it must be real and capable to be established not a vague or an elusive perception of a right of possession.

The question therefore is whether the Defendant has a right to the possession of the land or at least has some evidence supporting an argument for such a right. The Defendant offers in her affidavit evidence that the basis upon which she took possession of the property was by an oral agreement for her to take possession upon payment of rent determined initially to be three thousand five hundred dollars ($3,500:00). She then paid the Plaintiff the amount required and took possession of the property. She stated that there were other terms and conditions of the agreement which included the following:-

1. To make good of all damages to the said premises and upkeep the said premises at my own expense;

2. To clean and maintain the plaintiff’s family graveyard at the back of the house;

She further stated that she spent around $8,000.00 [Eight Thousand Dollars] in repairing, developing and maintaining the said premises;

It is clear from her affidavit evidence that she does have more than enough tangible evidence which could establish a perception of a right of possession. The Plaintiff admits that there was an agreement for her to rent the premises although there are some matters regarding the oral agreement as stated by the Defendant that he disagreed with. It is therefore common ground that there was an agreement for her to rent the premises.

The question now is whether the agreement to rent the premises legal and binding on both the parties irrespective of what the precise terms were.

Both the parties in their submissions addressed the point that the agreement was illegal because the consent of the lessor, the iTLTB was not obtained before entering into the agreement. This is a pre-condition to any agreement to sub-lease all native leases. The relevant section is section12 of the Native Land Trust Act, this provision states:-

“Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer of sublease without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void.”

It is clear from the above provision that the lessee cannot sub-lease the land or alienate the land or part of it without the consent of the iTLTB first had and obtained and any such dealing or alienation is null and void.

The Defendant in her defence used the non granting of consent as justification for her to remain on the property. In her view the Plaintiff cannot institute legal proceedings without first obtaining the lessor’s consent to do so. She was of the view that the said lease has a similar requirement as a protected crown lease, this unfortunately is not correct.

The Plaintiff on the other hand used the absence of consent by the lessor, iTLTB as nullifying the very same arrangement of tenancy he created. Whether the Plaintiff knew of this requirement before he entered into the agreement is unclear what is clear though is that he benefited from the arrangement.

The question now is whether the arrangement or agreement for the Defendant to take possession of the land and pay the rent due to the lessor an attempt to alienate or deal with the land for the purposes of section 12 above. The answer to this question could be found in the Privy Council decision in Chalmers v Pardoe [1963] 3 All E R 552.

Mr Chalmers and Mr. Pardoe were friends. Mr. Pardoe who owned a Native Lease allowed Mr. Charmers to occupy and build a house on his land. When the friendship turned sour the validity of this friendly arrangement or agreement became an issue for the court to determine. Mr. Pardoe claimed that his friendly arrangement with Mr. Charmers for Mr. Charmers to build on his land was a dealing in native land and therefore in the absence of the lessor’s (iTLB’s) consent the arrangement was null and void. Mr. Charmers on the other hand claimed that he had a right in equity in the land and that equity should prevent Mr. Pardoe from taking the building for nothing.

Sir Terence Donovan in delivering the decision of the Privy Council in the matter stated:-

Repeating this term, but without necessarily adopting it, the Court of Appeal held, as their lordships have already indicated, that the least effect which could be given to the "friendly arrangement" was that of a licence to occupy coupled with possession. Their lordships think the matter might have been put higher. "I gave him the land for nothing" said Mr Pardoe. Again, "He could get anything – a sublease or a surrender, which was perfectly correct..." And so on. In their lordships view an agreement for a lease or sublease in Mr Chalmers’ favour could reasonably be inferred from Pardoe’s evidence.

Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as Mr Chalmers and Mr Pardoe well knew, of erecting a dwelling-house and necessary buildings, it seems to their lordships that, when this purpose was carried into effect, a "dealing" with the land took place. On this point their lordships are in accord with the Court of Appeal: and since the prior consent of the Board was not obtained, it follows that under the terms of s. 12 of the ordinance, cap 104, this dealing with the land was unlawful. It is true that in Harman Singh and Backshish Singh v Bawa Singh [1958-59] FLR 31, the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s. 12, for there must necessarily be some prior agreement in all such cases. Otherwise there would be nothing for which to seek the Board's consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the land without having the opportunity of considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s. 12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from Mr Pardoe: but whatever effect this might have on the remedies the Board would otherwise have against Mr Pardoe under the lease, it cannot make lawful that which the ordinance declares to be unlawful.

There was no claim by the Defendant for an equitable charge or lien over the land and therefore there was no need for this court to make any other orders in that regard notwithstanding that there was conflicting affidavit evidence on whether the Defendant was allowed to build or renovate the premises.

Conclusion

The Court is satisfied that the Plaintiff is entitled to institute this proceeding as the registered proprietor of the subject land under section 169 of the Land Transfer Act. That the parties had entered into an oral agreement for the Defendant to rent the premises.

That the above arrangement was a dealing pursuant to section 12 of the iTaukei Land Trust Act. That there was no consent to deal with the land. The result is that any agreement or arrangement entered into by the parties to deal with this land in the way they did is null and void, illegal and unenforceable. Further any claims against the Plaintiff which may be made by the Defendant in equity should also be left as the subject of another proceedings if necessary.

Orders

The Orders are therefore as follows:-

1. That the Plaintiff's application by Summons dated 25 January for vacant possession is granted;

2. That the above order be stayed for two months from the date hereof to allow the Defendant to find alternative arrangements;

3. That in view of the circumstances of the matter from which this application arose there will be no order as to costs.

Dated this 6th day of February 2013.

H A ROBINSON
Master, High Court Labasa