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Wynward v Trustees for the Colony of Fiji of the Methodist Church in Fiji [2014] FJHC 589; HBC405.2008 (8 August 2014)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 405 of 2008


BETWEEN:


TOM WYNWARD
1ST PLAINTIFF


AND:


GULF PACIFIC (FIJI) LIMITED
2ND PLAINTIFF


AND:


THE TRUSTEES FOR THE COLONY OF FIJI OF THE METHODIST CHURCH IN FIJI
1ST DEFENDANT


AND:


MCF HOLDING TRUST
2ND DEFENDANT


Counsel : Mr. P. Knight for the Plaintiffs
Ms. P.M. Salele for the 1st Defendant
Mr. S. Valenitabua for the 2nd Defendant
Dates of Hearing : 23rd July, 2014
Date of Decision : 8th August, 2014


DECISION


INTRODUCTION

  1. The Plaintiffs had instituted this action against the defendants seeking inter alia for specific performance of alleged option agreement for a lease of land and or for damages. This matter proceeded partly for hearing before a judge, but now it is allocated to me for de novo trial. Before the de novo hearing, the 2nd Defendant filed summons seeking an order to challenge the validity of the Option Agreement. The 2nd Defendant sought a determination regarding the validity of the option agreement entered between the parties as a preliminary issue and or for a split trial for the determination it as a preliminary issue. The Plaintiff objects to the summons and stated split trial would increase their costs as the witnesses were residing overseas. At the hearing consented to determination of the validity of the option contract at the hearing of the summons on admitted facts before the court.

ANALYSIS

  1. It should noted at the outset that 2nd Defendant's challenge base on the illegality was two prone. The first contention was that the alleged Option Agreement entered on 20th May, 2005 was illegal ab initio as it violates the Section 6 of the Land Sales Act (Cap 137). The facts surrounding this issue are not in dispute and can be determine in this summons. As an alternate contention the 2nd Defendant also alleges illegality of the manner in which the option exercised in paragraph 3.11 of the written submissions, that deals with the disputed facts and I am unable to decide that contention in this hearing. So the decision would only confine to alleged illegality ab initio of the Option Agreement executed by the parties.
  2. Since all the parties consented the issues for determination of this summons are
    1. Can the Defendant raise the issue of illegality without pleading it in the statement of defence.
    2. Whether the alleged Option Agreement entered between the parties on 20th May, 2005 was illegal ab initio considering the Section 6 of the Land Sales Act (Cap 137).
    1. Whether a split trial should be ordered for the determination of the said issue.
  3. It is trite law that a party was not precluded from raising a legal issue not specifically pleaded, unless it was mandatory to do so. The High Court Rules of 1988 deals with said issue. A party may raise a point of law in pleadings (O18 r.10). There are certain matters that needs specifically pleaded. A party is not precluded from raising an issue of law merely because it was not pleaded.[1] The court should allow an amendment if it is mandatory to plead such an issue and such application for leave to amend is made. If not, under O.33 r.3 the court may allow a preliminary issue without pleadings[2]. Since the Defendant had utilized Order 33 the said objection is overruled and I proceed for the determination of remaining issues (b) and (c) above.
  4. The Plaintiff entered into an 'Option Agreement' annexed LT 1 to the affidavit in support of this summons. The said agreement was entered in to between the 1st Plaintiff and Methodist Church In Fiji on 20th May, 2005.(see paragraph 4 of affidavit in support )
  5. In the alleged Option Agreement (OA) the Methodist Church In Fiji granted the 1st Plaintiff an option to lease a land for a term of 5 years from the date of exercise of the option subject to the satisfactory completion of and approvals including the approvals of the feasibility study for a development, and consent of the Minister of Lands for the purposes of Land Sales Act (Cap137). (see paragraph 6 of the affidavit in support)
  6. The OA also granted the 1st Plaintiff and his agents, servants to enter said land for the purpose of conducting feasibility study and for obtaining consents and approvals necessary contained more specifically in the clause 3 of the OA.
  7. Clause 3 of the said OA stated as follows

'3. This Option shall remain open for period of one (1) year from the date hereof provided that, if the feasibility study has not been completed or if all necessary consents and approvals, including the consent of the Minister of Lands under the Land Sales Act, the consent of Fiji Islands Trade and Investment Bureau and the requisite planning approvals have not been obtained by the expiry of the said period of 1 year, the Developer (i.e Plaintiffs) may by notice in writing to the Owner extend the option period for a further 6 months on payment of the further Option Price of $25,000.00 to the Owner. The Owner agrees to provide all necessary assistance to obtain the consents and approvals referred to in this clause.'(Emphasis added)


  1. The title as well as the contents of the contract entered in to on 20th May, 2005 was for an Option Agreement between the 1st plaintiff as the Developer and the Methodist Church in Fiji as the owner in terms of the OA. The time period for the option is initially one year and this could be extended in terms of the above clause 3 for another 6 months on payment of an additional amount to the Option Price. So the maximum time period for the exercise of the option was 18 months from the execution of the OA. The clause 1 of the said OA dealt with the Option Price and it stated as follows

'1. In consideration of the Option Price of F$50,000(Fifty Thousand Fiji Dollars) to be paid on execution of this agreement by the Developer the Owner GRANTS THE DEVELOPER AN OPTION to lease ........... for a term of 5 years from the date of the exercise of the OPTION(hereinafter called "the Development Lease") on the terms and conditions referred to herein subject however to the satisfactory completion of and approval of the feasibility study for development generally in accordance with the intent of clause2 hereof.'


  1. The law relating to non residents in terms of the Land Sales Act(Cap137) for purchase of land as well as lease are identical and dealt in Section 6 of the said Act. There is no definition of Option to Lease in the Halsbury's Laws, but the definition given for Option to purchase can be applied mutatis mutandis.
  2. In Halsbury's Laws of England/CONVEYANCING (VOLUME 23 (2013) 5TH EDITION)/7. THE CONTRACT/(1) IN GENERAL/159. The Options to purchase is described as;

'An option to purchase is, in effect, an offer to sell which is irrevocable for a stated period or until a stated event, made by the grantor of the option to the grantee. The grantee is entitled to convert the offer into a concluded contract to buy on giving the prescribed notice and complying with the conditions on which the option is made exercisable in any particular case. There must be a binding contract to keep the offer open which requires either a deed or valuable consideration. .....'(Footnotes deleted and emphasis added)


  1. The OA allowed the Plaintiff to exercise the option for a period of time as stipulated in the clause 3 of the OA.(i.e irrevocability) The said OA was subject to a consideration of option price F$50,000 for one year and if it is to be extended for a further period of 6 months an additional sum needed to be paid.(i.e consideration) It should be noted these sums were paid, for allowing the option open for the time periods and they were admitted facts. The Plaintiff was required to obtain necessary approvals during the stipulated time period and if desired to exercise the option to lease the land for a term of 5 years by entering in to a separate lease agreement (i.e stated period and event). The OA in issue can be considered as an Option Agreement in terms of the definition quoted above.
  2. The proposed terms for the intended lease were contained in the 'Form of Development Lease' as an annexed marked 'A' to the OA. This lease was never executed and for execution of that consent to the minister was needed, there is no dispute over that fact and that was expressly stated in the executed OA. It is pertinent that 'owner' was required to provide all necessary assistance to Plaintiff in order to obtain approvals and ministerial consent (see Clause 3 of OA).
  3. The said annexed 'A' of the OA, was the 'form of' proposed development lease. It is to be noted that this was only a 'form' of the prospective development lease and this remained unexecuted, and even its conditions were subject to reasonable variation. Clause 10 of the OA states that upon the receipt of the notice to exercise the option within the stipulated time period, the parties would enter in to a formal contract subject to any reasonable amendments to the said 'form of development lease' which is annexed as 'A' to the OA. There is no doubt that execution of the lease required concurrence of the Minister of Lands. The purpose of the OA was to facilitate the compliance of that with a time period, so that the Plaintiff does not have to renegotiate or start from the scratch and some assurance was given by way of keeping the option open for a maximum period of 18 months in terms of the said OA.
  4. From the outset it is evident that OA allowed the Plaintiff, some space in order for him to obtain necessary approvals including consent of the Minister of Lands for the intended lease for a period of 5 years. Though the parties had proceeded with OA, they had not in any way entered in to a contract to lease or to purchase the land in violation of Section 6 of the Land Sales Act (Cap 137). In my judgment Clauses 8, 9 & 10 cannot be separately interpreted as intentions of the parties are clear and unambiguous.
  5. The annexed 'A' to the OA does not change the status of OA. According to the clause 3 of the said OA quoted earlier there was specific mention of the approval of Minister of Lands among other consents needed, and the option to remain open for initially one year with further an extension of another 6 months allowed subject to payment of additional amount. So, what was agreed between the parties in OA, was to allow the Plaintiff a period not exceeding 18 months from the execution of OA, to obtain necessary approvals and to execute the lease. In my judgment this type of agreement was not prohibited under the Land Sales Act (Cap 137).
  6. The Section 6 of Land Sales (Cap 137) states as follows

Purchase of land by non-resident


"6.-(1) No non-resident or any person acting as his agent shall without the prior consent in writing of the Minister responsible for land matters make any contract to purchase or to take on lease any land:


Provided that nothing contained in this subsection shall operate to require such consent or prevent a non-resident from making any such contract if the land together with any other land in Fiji of such non-resident does not exceed in the aggregate an area of one acre.


(2) The Minister responsible for land matters may require any application for his consent mentioned in subsection (1) to be in the appropriate form and may refuse his consent without assigning any reason, or may specify terms whether by way of imposition of bond or otherwise upon which such consent is conditional.


(3) No appeal shall lie against a decision by the Minister responsible for land matters made under this section.


(4) The provisions of this section shall not apply to dealings in native land, as defined by the Native Land Trust Act, or to the original grant of any lease or licence by the Native Land Trust Board."(emphasis added)

(Cap. 134.)


  1. The long title of the Land Sales Ac (Cap 137) states 'AN ACT TO PROVIDE FOR THE REGULATION OF CERTAINSPECULATIVE AND OTHER DEALINGS IN LAND AND THE TAXATION OF PROFITS THEREON'. From the long title it may be deduced the primary objectives of the said legislation were

a. Regulation of dealings relating to land including some speculative dealings.


  1. The taxation of the profits from the dealings.
  1. From the long title of the Land Sales Act (Cap137), one of the objectives was to regulate some of the speculative dealings. The OA had in fact facilitated the parties to negotiate and arrive at reasonable price, while understanding the realities of bureaucratic red tape in the process of obtaining the necessary approvals including the consent of the Minister of Lands for the proposed lease. If the OA is found illegal, then there is more room for speculative dealing discouraging a genuine investor. Investor confidence is vital for modern day commercial activities. This is not to overlook the main objectives of the Land Sales Act.(Cap 137). The courts are often asked to do a balancing act, and Fiji Court of Appeal in Port Denerau Marina Ltd v Tokomaru Ltd [2006] FJCA 27; ABU0026U.2005S (decided on 6 December 2006)(unreported) successfully did that. This judgment was applied in Fiji High Court, in Resort in Park and Garden Ltd v Naidu [2012] FJHC 883; HBC164.2009 ( decided on 24 February 2012) .
  2. In Resort in Park and Garden (supra) it was held that even in one contract the parties may bind for ministerial consent for a proposed sale if the consent is obtained. Calanchini J (as his lordship then was) held

'As the Court of Appeal said in the Port Denarau decision (supra) it is sufficient if there is an appropriately worded agreement that binds the parties (1) to try to obtain Ministerial consent to a proposed sale and (2) if obtained to purchase on predefined contractual terms. The appropriately worded document may achieve two objectives. First, it binds the parties to try to obtain Ministerial consent to a proposed sale. Secondly, if that consent is obtained, the same appropriately worded document then also binds the parties to a sale and purchase contract on predefined terms.'(emphasis is mine)


  1. Fiji Court of Appeal in Port Denerau Marina Ltd v Tokomaru Ltd [2006] FJCA 27; ABU0026U.2005S (decided on 6 December 2006)(unreported) in paragraph 38 it was held that legislative intent should be ascribed from the clear language contained in the statute and in the absence of any clear restrictions for an option agreement it should not be considered as illegal. The said paragraph also contained some vital findings and stated;

'[38] S6(1) does not prohibit the making of a contract to seek the Minister's consent to a specified transaction. Otherwise, to what is the Minister to consent? And it cannot make any difference whether the proposed transaction is described in general terms, or whether it is specified in the form of a proposed agreement of sale and purchase, or lease, annexed to the contract . Is it fatal that in a single document, the agreement goes on to provide that in the event the Minister consents, the parties are bound to enter into a transaction in that form? This seems a critical feature. It would not be conducive to business development or investment if the only way to obtain the Minister's consent was for the parties to agree to seek consent in a form that allowed either party to withdraw even if consent was obtained. One only has to consider the elaborate agreement in issue here, clearly the product of many hours of professional time, to see that any such approach would be unproductive and unrealistic. In the absence of clearer language courts should not ascribe such a legislative intent to a statute.'(emphasis added)


  1. The said judgment of the Court of Appeal was applied in the High Court in Resort in Park and Garden Ltd v Naidu [2012] FJHC 883; HBC164.2009 ( decided on 24 February 2012) (unreported) . The above quoted passage put the issue raised in this court as to the illegality of the option agreement beyond doubt. I have already added emphasis to vital findings that relate to the issue before me. The fact that OA annexed 'A' the 'form of development lease' unexecuted form does not attach any illegality to the OA. It only makes the meeting of the minds in back and white so there were fewer issues to be dealt once the consent was granted to enter in to the lease. The objective of the Land sales Act (Cap137) was no way hampered by the OA, instead it reinforce the objective of uncontrolled purchase and leases of land to the non-residents as stipulated in Section 6(1) of the Land Sales Act (Cap137). OA also oblige the 'owner' to provide 'all necessary assistance' in order to obtain prerequisites for a lease.
  2. If the OA is declared null and void under Section 6(1) of the Land Sales Act (Cap 137) that would leave the prospective lessor with no assurance that the owner of the land would not deal with third parties while the necessary approvals are obtained. The 'owner' was also required to act in good faith by providing 'all necessary assistance' in order to obtain ministerial consent. It was common knowledge that ministerial consent under Land Sales Act as well as other approvals as contained in clause 3 of OA as well as feasibility study takes time and during that time some expenditure will incur to the prospective lessor and third parties may try to speculate dealings during this time for ulterior motives. If the legislature indented curtailing all activities relating to land when one party is non resident it could have done so in clear language, but this was not done. In my judgment the legislation had expressly left parties to enter in to agreements similar to OA so that will be a discourage for speculative dealers as opposed to genuine investor.
  3. In Port Denerau Marina Ltd v Tokomaru Ltd [2006] FJCA 27; ABU0026U.2005S (decided on 6 December 2006)(unreported) it was further held

'We have referred previously to the exposition of the purpose and object of section 6(1) in Hunter v Apgar. Similarly in Sakashita (at 18) Fatiaki J referred to the Act's "discernible protective or public policy purpose, namely the prevention in the public interest, of the uncontrolled alienation of land in Fiji, to and by non-residents". Finally there is the Supreme Court's affirmation of the result in Hunter v Agpar in Gonzalez, coupled with the citation, with implicit approval, of the passages from the judgment of the Court of Appeal extracted above. Together these various sources show a continued determination on the part of the Courts, notwithstanding the limited content of section 6(1) regarding the consequences of breach, to "make the Act work" in accordance with "the general intention of Parliament as embodied in the Act – that is to say, the spirit of the Act" (Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530, 537; judgment of the NZCA delivered by Cooke P).'


  1. In order to achieve its stated objectives the Land Sales Act (Cap 137) introduced certain terms which were literally similar in meaning but not so under the application in terms of the said Act. In the Section 6 (1) of the said Act, what was prohibited was to make contracts for purchase and lease of land, but if the total area including any existing rights did not exceed one acre, then the consent of the Minister was not required.
  2. It is noteworthy that Section 6(4) of the Act, also excludes certain other types of dealings in native land as defined by Native Land Trust Act, original grants of any lease or licence by the Native Land Trust Board. The word used here was 'dealing' as opposed to 'contract' in Section 6(1). Accordingly, the restrictions were only for contracts to purchase or lease and no more. The restriction cannot expand to option contract which allows time to obtain necessary approvals. The selection of the words in Section 6(1) of the Land Sales Act (Cap 137) were done with a purpose and in the interpretation the clear meaning of the words should not be expanded so that it would defeat the objective of the Land Sales Act .
  3. The word 'dealing' is defined in the Section 2 of the Land Sales Act (cap 137) as;

'dealing" means any transaction of whatsoever nature, including an option to purchase, by which land is affected under the provisions of the Land Transfer Act and shall include an agreement to enter into any such transaction, but shall not include the original grant of any lease or licence by the Native Land Trust Board'(emphasis is mine)


  1. The above definition amply show that the dealing expressly included option to purchase. The ministerial consent under Section 6(1) was not required for any dealing, but only for any contract to purchase or lease. The words utilized in Section 6(1) of the Land Sales Act (Cap 137) are 'contract to purchase or to take on lease any land'. The word 'dealing' gives wider application. So it was not any 'dealing' for lease or purchase, that needed minister's consent, but only contract to lease or purchase. The different words are used to denote different meaning in the legislation.
  2. It is noteworthy that in terms of section 7 of the Land Sales Act which relate with dispositions of land by non-residents the word any contract disposition land required ministerial consent. This section applies to sales of land belonging to non-resident. In this case the said provision has no application, but used here to indicate different terms utilized. This was clearly distinguishable from the language contained in Section 6(1) of the Act which confined to contracts to purchase and lease. The legislation makes a distinction between a non-resident purchaser and seller and two different provisions in the same statute uses two different words to describe the type of transactions that needed ministerial consent. This reinforces that the meaning given in Section 6(1) of the Land Sales Act (Cap 137) should not be expanded.
  3. The word 'sale' in terms of the Land Sales Act (Cap 137) also includes 'dealing' according to the interpretation of the word sale, as I have stated earlier dealing included option to purchase, and words were selectively utilized for specific reason and wider interpretation under the circumstances not warranted. The word sale is defined Section 2 of the Land Sales Act (Cap 137) as follows;

"sale" includes-


(a) the granting or surrender of a lease other than a lease of native land;


(b) any dealing for which the consideration is-


(i) money or money's worth;


(ii) any sum received in return for forfeiture or surrender of rights or for refraining from exercising rights;


(iii) any sum received as consideration for use or exploitation of land.


  1. The words 'make any contract to purchase or to take on lease any land' should be distinguished from any 'dealings' and or 'any disposition' and or for 'sale' under the Land Sales Act (Ca0 137). Different words in a legislation are used to give different meanings to them if not same word could be used. From that, it can be deduced that execution of OA does not require ministerial consent in terms of Section 6(1) of the Land Sales Act (Cap 137) at the time of execution of it, but this cannot be utilized to circumvent the law when the contract for purchase or lease is made while exercising the option given. When exercising the option the 'development lease' needs to be executed and for that the consent of the Minister was a sine qua non.
  2. The subsequent act of exercising of the option was not the issue that I am dealing, and if the initial execution of the OA on 20th May, 2005 did not require the ministerial consent in terms of the Section 6(1) of the Land Sales Act, the preliminary issue of alleged illegality of the said contract ab initio, needs to be answered in favour of the Plaintiff.
  3. This was held in the case of Dhanapal Mudaliar& Another Vs Investment Corporation Of Fiji Ltd [1993] 39 FLR 175 (27 July 1993) Fiji High Court held that the option to purchase was not a contract that needed ministerial consent under the Land Sales Act (Cap137) . In the abovementioned case the court examined the option to purchase and held that it was not contract to purchase.(see p176 paragraph c). By the same token the OA annexed to the affidavit in support of the summons, was not a contract to lease. The form of the proposed lease was annexed to the OA as 'A' and remained unexecuted even today.
  4. In Resort in Park and Garden Ltd v Naidu [2012] FJHC 883; HBC164.2009 (24 February 2012) again Calanchini J (as his lordship then was) held

'In the same decision the Court of Appeal stated that it cannot make any difference whether the predefined terms are described in general terms or whether they are specified in the form of a proposed contract of sale and purchase annexed to the contract. The point that is made by the Court of Appeal is that it is permissible for the parties, in the one document, to bind themselves to obtaining the consent of the Minister and upon that consent being obtained to set out the binding terms and conditions of the proposed sale and purchase contract. If that can be effected by stating general terms or by an annexed copy of the proposed formal contract, I see no reason why the predefined detailed terms and conditions cannot be included in the body of the one document. Surely the issue does not depend upon the number of documents but rather whether on a true construction of the one document the Minister's consent is a condition precedent to the formation or making of a contract to purchase land'.


  1. What can be deduced from the above passage was that there was no prohibition or illegality in terms of the Section 6(1) of a contract or agreement that stipulate the road map of the parties for a purchase or lease a land without the consent of the Minister of Land, as long as such a contract or agreement was not a contract to purchase or lease land to non resident. The intended purchase or lease can be attached to the option agreement (as in this case) or proposed terms can be included in the contract, but importantly execution of such a contract would not be a purchase or lease of land to a non resident. What is more important is the interpretation that can be given to the contract rather than the term used for description of it. The OA in issue in this case had stated that the Plaintiff needed to obtain necessary consents and the requirement of consent of the Minister of Land is expressly stated, hence there cannot be any ambiguity as to the nature of the OA which only granted the Plaintiff a maximum of 18 months to exercise the option of lease after obtaining necessary approvals. The consideration for said period was stipulated in the OA. The extension of option period from 12 months to 18 months was to obtain all the approvals of consents including requirement in terms of Section 6(1) of Land Sales Act (Cap 137) (see Clause 3 of OA).
  2. In Fiji Court of Appeal, Narayan v Narayan [2011] FJCA 22; ABU0037.2010 (decided 10 March 2011) it was held that if the ministerial consent was a condition precedent to the contract such contracts does not contravene the provisions of the Land Sales Act (Cap 137). Khan J discussed the condition precedent and condition subsequent in the said case as follows;

'17. A condition to which the contract is subject could either be a condition precedent or a condition subsequent. Generally, if a contract is subject to the happening of some event and such a condition is regarded as a condition precedent to the formation of the contract, no contract will arise until the condition precedent has been fulfilled. An example is George v. Roche [1942] HCA 22; (1942) 67 CLR 253 which involved an agreement for the sale of a business. The agreement provided that a newspaper agency was required to be purchased at the value placed on it by a named Valuer. The named Valuer refused to value the agency and a majority of the High Court held that valuation by the person named was a "condition" precedent to the formation of a contract and that the refusal by the valuer to value had the result that there was no contract: see at paragraph[741] of Carter and Harland – Contract Law in Australia 3rd Edition.


18. Similarly, if a foreign entity entered into a contract to buy land in Fiji without the Minister's consent there could be a clause in the contract which clearly stipulated that the obtaining of the Minister's consent was a pre-condition for the contract to arise. In that situation, as there was no contract until the Minister's consent was obtained, no breach of Section 6(1) or 7(1) of the Land Sales Act Cap.137 would have been committed.


19. Conditions subsequent are conditions which are required to be fulfilled after the contract has been entered into. Thus a contract may have a stipulation that the consent of the local authority for the erection of a building on the subject land shall be obtained within six months of the date of the contract. In that event, the contract would have arisen but was voidable at the option of either party if the condition was not fulfilled within the stipulated time. Alternatively a condition which was capable of being waived could be waived by the person for whose benefit it was drafted and the contract could be made unconditional.


20. Where the contract is subject to say finance approval, it is usually a condition subsequent. Where negotiations were "subject to contract", this is a condition precedent to the formation of a contract. See Masters v. Cameron [1954] HCA 72; (1954) 91 CLR 353.


21. The difference between a condition precedent and a condition subsequent as it relates to the present issue is that in a condition precedent no contract arises until the Minister's consent is obtained and therefore there is no breach of Section 6(1) of the Land Sales Act Cap.137. In contradistinction, a contract does arise when a condition is subsequent and therefore if the contract has been made without the consent of the Minister the conditions subsequent would not save it from illegality under Section 6(1) of the Land Sales Act Cap.137.'(emphasis added)


  1. The OA has an annexed document 'A' which was the form of unexecuted development lease agreement that will be executed between the parties subject to consent of the Minister of Lands and fulfillment of other statutory prerequisites, expressly stated in the clause 3 of the OA.
  2. In the circumstances it is abundantly clear that OA which annexed form of proposed lease was not an illegal contract in terms of Section 6(1) of the Land Sales Act.
  3. The 2nd Defendant in its written submissions also deals with the illegality of the contract at the time of exercise of the option. There are disputed facts and I cannot see how a split trial can be beneficial on that as I have already held that the OA was not illegal at the time of the execution of it. So the circumstance of the time of the exercise of the option would need oral evidence. This is not a long and protracted trial and there is no purpose served in having a split trial. So the request for split trial is denied.

CONCLUSION

  1. I can find nothing in Section 6(1) of Land Sales Act (Cap137) to justify me tampering with its language or straining to give its actual language other than it s natural meaning. The ministerial consent was required only for contract of lease not for agreement that grants an option to lease. OA taken in its entirely allowed Plaintiff to obtain necessary approvals of consents within a maximum time period of 18 months. It also obliged the 'owner' to keep the option open for the period, and also gives 'all necessary assistance' in order to obtain such approvals and consent. Whether these obligations were met by the respective parties cannot be dealt in this summons as those invariably deals with disputed facts, but OA executed on 20th May 2005 was not an illegal contract ab initio.

FINAL ORDERS

  1. The execution of the Option Agreement entered on 20th May, 2005 does not require the consent of the Minister of Lands in terms of Section 6(1) of the Land Sales Act (Cap137). (i.e it is not an illegal contract)
  2. The request for split trial is refused.
  1. The cost of this application is summarily assessed at $1,500 to be paid within 21 days.
  1. The summons (undated) filed on 20th May, 2014 is struck off subject to above orders.

Dated at Suva this 8th day of August, 2014.


Justice Deepthi Amaratunga
High Court, Suva

[1] Independent Automatic Sales Ltd v.Knowles & Foster[1962] 3 All ER 27
[2] The Supreme Court Practice (UK) (White Book) (1999) 18/11/1p 325

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