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Ali's Engineering Ltd v Mala [2014] FJHC 579; HBC81.2014 (8 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 81 of 2014

BETWEEN:

ALI'S CIVIL ENGINEERING LIMITED
a limited liability company duly incorporated under the laws of Fiji having its registered office in Labasa in the Republic of Fiji
PLAINTIFF

AND:

SUNANDA DEVI MALA
trading as Nita's Car Care, businesswomen and every other person in illegal occupation of part of all that piece of land contained and described in and as Approval Notice of Lease dated 3 April 2000 being Lot SO 4379 StateForeshore in the District and Province of Naitasiri comprised of an estimated area of 2.2938 ha.
DEFENDANT

BEFORE: Master Thushara Rajasinghe

COUNSEL: Mr. Prasad V. for the Plaintiff
Mr. Bukanivere. for the Defendant

Date of Hearing: 17th June, 2014
Date of Ruling: 08th August, 2014

RULING

1. INTRODUCTION
   

1. The Plaintiff instituted this action by way of an Originating Summons,seeking an order to recover immediate possession of part of all that piece of land contained and described in as Approval Notice of Lease dated 3rd April 2000 being Lot 1 So 4379, State foreshore in the District and Province of Naitasiri pursuant to Order 113 of the High Court Rules.
   
2. This Summons was called before me on the 8th of April 2014, where the parties were given directions to file their respective affidavits, which they filed accordingly. Upon filing of the respective affidavits, this Summons was set down for hearing on 17th of June 2014. The learned counsel for the Plaintiff and the Defendant made their respective oral arguments and submissions during the cause of the hearing and also tendered their respective written submissions. Having carefully considered the respective affidavits and submissions of the parties, I now proceed to pronounce my judgment as follows.
   

2. BACKGROUND
   

3. The Plaintiff claims that they are the lawful lessee of the land as described in the Summons and the Defendant has been occupying the land without the consent and licence of them. The Plaintiff tendered a copy of an approval notice of lease as an annexure to their affidavit in support.
   

100. THE LAW
     

4. Order 113 of the High Court Rules provides a summary procedure for possession of land, where it states that;
   

"Where a person claims possession of land which he alleges is occupied solely by a person or persons ( not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order".

5. In view of Order 113, a person who has a legal right to claim the possession of a land could institute an action, claiming the possession of said land against a person who has entered into or remains in occupation without his licence or consent or that of any predecessor in title.
   
6. The main purpose of Order 113 is to provide a speedy and effective procedure for the owners of the lands to evict persons who have entered into and taken the occupation of the land without the owner's licence or consent. They can be defined as trespassers or illegal occupants. These trespassers or illegal occupants have sometimes been referred to as squatters. In Mcphail v Persons unknown, Lord Denning has observed "the squatter" as a person who without any colour of right, enters into an unoccupied house or land and occupies it. His Lordship found that in such instances, the owner is not obliged to go to court to regain his possession and could take the remedy into his own hands, which indeed, recommended as an unsubstantial option. Therefore, Order 113 has provided a speedy and effective procedure to provide a remedy to the owners instead of encouraging them to take a remedy of self-help.
   
7. The proceedings under Order 113 encompass two main limbs. The first is the onus of the plaintiff. The Plaintiff is first required to satisfy that he has a legal right to claim the possession of the land. Once the plaintiff satisfies the first limb, the onus will shift towards the defendant, where the Defendant has burdened with to satisfy the court that he has a licence or consent of the owner to occupy the land.
   

4. ANAYLSIS
   

8. I now, turn to discuss the first limb that is whether the Plaintiff has satisfied the court that they have a right to claim the possession of this land. The Plaintiff claims that they are the lawful lessee of this property, and tendered a copy of an approval notice of lease dated 3rd of April 2000. The learned counsel for the Plaintiff vigorously and forcefully submitted that this approval notice of lease constitute a proper lease under the Crown Lands Act. He relied mainly on three case authorities in order to substantiate his contention, which I will review later in this judgment.
   
9. Part IV of the Crown Lands Act deals with leases and licences of crown land. Section 10 of the Act has given the Director of Lands authority to grant leases or licenses of portions of crown land for the purposes specified or prescribed under the Act. Section 12 deals with the form of lease and registration of them. Every lease of crown lands are required to be in the form as prescribed by the Act and shall be registered in the "Register of Crown Lease" at the Registrar of Title. The provisions of the Land Transfer Act shall apply as far as the same are not inconsistent with the Crown Lands Act in respect of registration and its subsequent consequences.
   
10. Regulations 25 and 26 of the Crown Lands (Leases and Licences) Regulations have dealt with the forms of leases and the procedure to execute the lease upon the grant of approval notice of lease.
    
11. Having briefly considered the relevant provisions under the Crown Lands Act and the Crown Lands (Leases and Licences) Regulations, I now proceed to determine whether the Approval Notice of Lease dated 3rd of April 2000 given to the Plaintiff constitute a valid lease.
    
12. The learned counsel for the Defendant having cited Pachamma v Logessa ( 1979) FJSC 99, Civil Action 88 of 1978 ( 14 September 1979), Logessa v Pachamma ( 1980) FJCA 2, Civil Appeal No 59 of 1979 (11 June 1980) and Lal v Nand ( 1994) FJHC 204; ( 1994) 40 FLR 94 ( 27 June 1994), submitted that the Fiji Court of Appeal and the High Court have recognised and accepted that the approval notice of lease constitutes a valid lease under the Crown Lands Act or under the law of equity.
    
13. Indeed, I concur with the learned counsel for the Defendant that Justice Williams in Pachamma v Logessa (supra) has outlined that the holder of an approval notice in relation to crown land is a lessee on the terms of that particular notice of approval. However, it appears that Justice Williams's observation need to be considered with the relevant circumstances of the respective instances. Justice Williams observed in Pachamma ( supra) that;
    

"I referred to the decision of the F.C.A.in Ganpati's case ( supra) in my judgment in Chandrika Prasad v Gulzara Singh Civ. Action 76/1976 reported at p. 935, Vol 2 of the 1977 cyclo-styled reports. It is a Labasa case decided on 8.2.77 in which I held that a person occupying native land under an approval notice issued by the Native Land Trust Board was, in equity, a lessee on the terms of that particular notice of approval. I expressed the view in that judgment that the holder of an approval notice in relation to crown land could be in a similar position depending on the circumstances".

14. In fact, Justice Williams in Pachamma (supra) having extensively considered the principles enunciated in Ganapathi v Somasundaram ( App. 26/76,F.C.A) and Damodoran v Raghwan ( Civil Action 3.1972) has found that if the holder of an Approval Notice" is in possession and has paid required amount and complied with the relevant regulations and provisions under the notice, he then could be treated as a holder of a lease on the terms of the approval notice, if the Director of Land fails in his duty under the regulations and the provisions of the Act to execute a lease.
    
15. The decision of Pachamma in the High Court was affirmed in the Fiji Court of Appeal in Lagessa v Pachamma ( supra), however, the Fiji Court of Appeal has expressed its concern over the contention of accepting the approval notice of lease as a lease, where it held that;
    

"The prescribed form for leases is clearly intended for registrable leases and there are the prime concerns of the regulations. The transaction initiated by the Approval Notice would be intended to be completed in such a form. The argument is indicative of what the Ordinance means by a " lease" but is not decisive of whether a provision intended for insertion in such a lease can be operative prior to the transaction reaching that stage...........

it is plain that the wording of the section of the Ordinance which have been under discussion, has been lacking in clarity on the subject of the precise status of an intended lessee after approval had been given but before the execution of the formal lease. We think this is a matter which should receive the attention of the legislature".

16. Having expressed their concern of the lack of clarity on the subject matter under review, the Fiji Court of Appeal in Lagessa v Pachamma (supra) has scrupulously examined the nature of the approval notice and its contain before it upheld the decision of the High Court. In view of these judicial precedents, I find that the court is required to consider the circumstances of the dispute with the nature and the contains of the approval notice of the lease, in order to construct such approval notice as a proper lease.
    
17. Moving back to this instance case, the approval notice of lease contains with the description of the land, amount of the rent, period of the lease and commencement of the lease. It further stated that the lease is subject to the condition set out in the Crown Lands ( Leases and Licences) regulations and is a protected lease under the provisions of the Crown Lands Act. Moreover, the Plaintiff were required to pay the rent assessed for first period of the lease together with the estimated balance of survey fee without delay. If the Plaintiff fails to pay the rent and execute this lease within 6 months from the date of this approval notice, the approval of the lease will be cancelled without further notice.
    
18. It is interesting to note, that though the approval notice of lease has described the land with its estimated area, the land is needed to be survey. If it found that the estimated area of the land forms with any other land subject to any existing freeholds or leasehold title, this approval of the lease will be cancelled. The Plaintiff has signed the approval notice of lease by declaring that they accepted the terms and conditions of the approval of lease, but not the terms and conditions of the lease as signed by the lessee in Lagessa v Pachamma (supra) . For the purpose of clarity I reproduce the observation of the Fiji Court of Appeal in Lagessa v Pachamma (supra), where it found that; " There is a signed acceptance at the foot – " I do hereby accept the lease on the terms and conditions as set out in this approval notice". Accordingly, it appears that the nature and the conditions set out in the approval notice of the lease are different from the approval notice considered by the Fiji Court of Appeal in Lagessa v Pachamma (supra).
    
19. I now draw my attention in line with the Justice Williams observation in Pachamma( supra) to consider whether the Plaintiff has fully complied with the conditions set out in the Approval notice and by the regulations. If then, whether the Director of Land has failed to execute the lease pursuant to the provisions of the Crown Lands Act and to the relevant regulations.
    
20. There is no any evidence to prove that the Plaintiff has complied with the conditions set out in the approval notice or by the regulations, apart from a statement of payment tendered as an annexure with the reply affidavit. In fact, this annexed document contains only two pages and does not provide any credible evidence to satisfy that the figures of payment as indicated in the document are relevant to this propose lease. The lease No AN 15047 as mentioned at the top of this annexure has not referred or mentioned in the approval notice. Accordingly it could not be considered that the lease No of AN 15047 as mentioned in the annexure is actually referring the approval notice of lease dated 3rd of April 2000. In the absence of any credible evidence to satisfy the court, that the Plaintiff has complied with the conditions in the approval notice and the Director of Land has failed to execute the lease, I hold that this approval notice of lease dated 3rd of April 2000 could not be constructed as a valid lease either under the provisions of the Crown Lands Act or under the laws of equity.
    
21. In conclusion, I hold that the Plaintiff has failed to satisfy that they have a right to claim possession of this land under the Crown Lands Act, thus failed to satisfy the first limb of this proceedings under Order 113 of the High Court Rules. I accordingly make following orders that;
    
    1. The Origination Summons for Summary Possession of Land filed by the Plaintiff on 17th of March 2014 is hereby refused and dismissed,
       
    2. The Defendant is awarded cost of $ 1000 assessed summarily,
       

Dated at Suva this 08th day of August, 2014.

R.D.R. Thushara Rajasinghe
Master of High Court, Suva