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High Court of Fiji |
IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA
Civil Action No. HBC 014 of 2006
JAINENDRA KUMAR
(father's name Satendra Kumar) as the Executor and Trustee of
SATENDRA KUMAR the Original Plaintiff
PLAINTIFF
AND:
ITAUKEI LAND TRUST BOARD
formerly known as Native Land Trust Board a body corporate having its registered office at 431 Victoria Parade, Suva.
DEFENDANT
Counsels Appearing:
Mr Dayal A. for Plaintiff
Mr Lutumailagi I. for Defendant
JUDGMENT
1.1 By way of Writ of Summons filed on 25th January, 2006 and amended on 19th May, 2010, the Plaintiff is seeking inter alia the following orders:
- (i) Specific Performance of the letter of offer dated 15th December, 2004 by the Defendant for the lease/tenancy of land known as "Navesikiuma" and the Defendant do take all necessary steps to have the lease issued to the Plaintiff in respect of the said land;
- (ii) Special Damages $40,000.00.[Forty Thousand Dollars]
- (iii) Further or alternatively, damages for breach of the Letter of offer.
- (iv) A declaration that the Plaintiff is entitled to a lease/tenancy with respect to the land known as "Navesikiuma" of Lot 01, District of Vuda, Area 0.4047 hectares.
1.2 In response to the same by way of reply to amended statement of claim filed on 2nd August, 2010, the Defendant prays that the claim be dismissed as frivolous and vexatious with costs in favour of the Defendant on an indemnity basis.
2.1 The amended Statement of Claim recites that the Plaintiff is the son and Executor & Trustee of the estate of the Original Plaintiff, Satendra Kumar who died on 26th September, 2009 and has been substituted as the Plaintiff in place of the deceased. It states further that by a letter of offer dated 15th December, 2004, by the Defendant to the deceased Satendra Kumar, the Defendant agreed to offer the deceased a lease for a residential purpose for a term of fifty years from 1st January, 2005 for the land known as "Navesikiuma" as described in the Defendant's Reference No. 4/7/1722.
2.2 Furthermore, it is stated that it was agreed by the said offer letter that the deceased should pay certain fees and rent within six weeks from 15th December, 2004. The Plaintiff alleges that the Defendant represented and assured the deceased that it was in a position to grant the lease to the subject land upon the payment of fees demanded and in view of such assurance and representation of the Defendant the deceased paid a sum of $4,059.49 on 16th December, 2004 the amount so demanded by them. Upon the basis of such assurance, the deceased carried out renovations of the house in the sum of $15,000.00. The Plaintiff alleges that the Defendant has now neglected and refused to adhere to the said offer letter and by letter dated 22nd September, 2005, written by the deceased's Solicitor, the deceased demanded and requested that the Defendant do issue the deceased with a lease agreement on the said land.
3.1 The Defendant in its Defence to Amended Statement of Claim states as follows:
(a) The land known as "Navesikiuma" is "native reserve land" and the letter
of offer dated 15th December, 2004 is "subject to de-reservation" of the said native reserve land which belongs to the Tokatoka Nakelo of Vuda. To de-reserve the same would require the consent of member of the land-owning unit of Tokatoka Nakelo, but the members of the said Tokatoka have refused to give their consent for de-reservation of the said land and this has been advised to the Plaintiffs Solicitors by way of letter dated 3rd October, 2005.
(b) The Defendant has advised the Plaintiff by letter dated 9th November, 2005 that it was refunding the sum of $4,048.24 due to the land-owning unit not giving their consent, as required under the Native Land Trust Act. The Defendant therefore says that this action is statute barred as the Plaintiff cannot bring an action against the Defendant for specific performance of offer dated 15th December, 2004.
(c) The Plaintiff then stopped demanding to be issued with the lease agreement by the letter dated 5th January, 2005, and advised through his Solicitors that he was willing to vacate the said land by 26th February, 2006.
4.1 The minutes of the pre-trial conference was filed on 5th April, 2011 and the parties have agreed on the following issues to be determined by Court:
Defendant in view of the letter dated 15th December, 2004.
demanding to be issued with the lease agreement and by letter dated 5th January, 2005, the Plaintiff through his Solicitors, Messrs S.B. Patel & Co, advised the Defendant that it was willing to vacate the said land by 28th February, 2006.
5. The Hearing
Evidence of the Plaintiff.
5.1 Janendra Kumar the Executor and Trustee of the Original Plaintiff Satendra Kumar testified that he resided at the land in dispute since birth with his parents and that the land is reserved land. He stated that his father owned a trucking business and also used to have a garage at home to repair their vehicles.
5.2 The witness stated;
That there is house on the land, a garage and a bulk. That several iTaukei people come to his place and threatened his father to get out as the land was not his. They caused damages to the old vehicles which were parked and to the fence and to the buildings constructed on the land.
5.3 That the original Plaintiff lodged an application for lease on 6th April, 1990 with the consent forms signed by the member of the land-owning unit and the recommendation dated 13th December, 2004 was prepared by J. Vunisa the Estate Assistant of the Defendant which was endorsed by the Senior Estate Officer of the Defendant on the 18th December, 2004.
5.4 The witness identified letter from the Defendant dated 15th December 2004 and stated that it was an offer for lease by the Defendant for the area of the land for residential lease. He confirmed from the letter that a sum of $4,059.49 was to be paid by Satendra Kumar to accept the offer and that the offer was valid only for 6 weeks from 15th December, 2004.
5.5 He stated that on 3rd October, 2005, the Defendant wrote back to Plaintiffs' Solicitors stating that the Landlords have lodged written withdrawal of consent for leasing. It was also stated by him that it was after 10 months a notification was given by the Defendant that they would not lease the land to them on the grounds that it falls within a "Native Reserve".
5.6 He stated further that his father carried out renovation works more than the sum of $16,000.00 on various properties which were erected on the said land and spent $8000 - $9000 on excavation work too.
5.7 When the witness was shown documents "PEX9" to "PEX14", the Statements from the Defendant for the Plaintiffs' account and official receipts issued by the Defendant, he stated that those were deductions for the residential lease rental made from the said account.
5.8 He also stated that he lodged transfer of the application with the Defendant's in April 2011 and that he made a payment to the Defendant for the transfer of the application. The official receipt was marked as "PEX15".
5.9 When the witness was shown Tax Invoice Statements from 02/01/2012 to 01/07/2012; 01/01/2013; and 01/07/2013 to 01/01/2014 marked as "PEX 16 to PEX 18, witness stated that according to the Statement funds were being deducted from his account by the Defendant for the periods mentioned therein.
5.10 In cross-examination he stated that he paid the offer sum to the Defendant and all necessary consents were submitted to the Defendant and yet they did not issue the lease to him. He stated further that the refund of the offer sum given by the Defendant through a cheque was declined by his father on the advice of their Solicitor sometimes in 2006. Witness maintained that the Defendant credited his account with the money paid under the offer and started deducting yearly rentals from the said account.
5.11 The next witness called by the Plaintiff was Ms. Suraj Kumari the wife of original Plaintiff Satendra Kumar and the mother of the present Plaintiff.
5.12 She stated in evidence that she was brought to that piece of land by her husband when they got married. She recalls and knew persons named Buki and Emosi who used to come to their place to collect land rent from her husband. She testified that she does not have much knowledge regarding the dealings between Mataqali and her husband. She stated to Court that there were four houses and a garage on the land in dispute and that the Defendant did not issue her husband the lease despite his several attempts.
6.1 The Defendant's sole witness was Jekope Vunisa, a trainee Estate Assistant of the Defendant. He stated in evidence that he knew the land was reserved in 1979 and that it was occupied by Buki who was granted a Tenancy at will. He recalled that the Plaintiff resides at a portion of the land which was reserved.
6.2 He also admitted that there were two applications made by the Plaintiff to lease the said land and stated that he was the person who made the recommendations to the Defendant Board to lease the land to the Plaintiff. He identified the consent of the land owners enclosed with the application of the Plaintiff and stated that he believed minimum consent was given and not the majority consent required by the Board. From his report he identified that the Plaintiff was living on the said land with the arrangement of Mr Buki and paid rentals to him after reservation of the land. The witness stated that the land is reserved and occupation is only allowed to the land-owning unit. He confirmed that the land-owning unit is Tokatoka Nakelo and Mr Buki had Tenancy at will on the reserved land.
6.3 In cross-examination he stated not all members of Mataqali signed the consent for de-
reserving of the reserved land. Though he stated that consent for de-reservation of the land was 60% of Mataqali signing he did not explain how he derived at this requirement of 60% consent from.
6.4 The witness agreed that there was an offer of lease made on 15th December, 2004. It was stated by him that the lease was not given to the applicant because he did not collect 60% of the consent from Mataqali. He also stated that the land-owners later withdrew their consent which was given on 23rd February, 1985.
The letter dated 31st August, 2005 by which the land-owning unit informed the Defendant of the withdrawal of their consent was produced in evidence marked "DEX 2".
6.5 The witness was referred to the inspection, Precis and Recommendation Report attached to the application to lease marked "PEX 1". Witness was asked when he made the finding in the report that the majority consent was obtained, how it became an issue afterwards, he could not come out with an explanation and remained silent.
6.6 It was also identified by the witness that from the offer, the Defendant charged Plaintiff for illegal occupation and other administration fees and a deduction of first year rental to the Board in the sum of $300.00.
6.7 The witness was shown letter dated 3rd October, 2005 (PEX6) which the Defendant writes after almost 10 months of offer for lease stating that the landowners have lodged their written withdrawal of consent for leasing of the said land. It was posed to the witness that from this letter, it was not an issue of majority consent from the landowners which warranted such delay in issuing the lease, it was rather delay by the Defendant for issuing of the lease. Defendant did not answer and remained silent.
6.8 When he was referred to Section 17 of the Native Land Trust Act which dealt with the issue of consent for de-reserving reserve land witness agreed that the said provision did not suggest there was a need for majority consent but still maintained that there was a need for majority consent.
6.9 He admitted that deductions from the Plaintiff account were made when there was no
lease given and even after land-owners withdrawing their consent to de-reserve the land. Witness identified "PEX 10" being the receipt issued by the Defendant for payment of rent dated 22nd February, 2006 for the sum of $300.00. He accepted that this was a payment by the Plaintiff for the annual rental to the board for lease. He also accepted from "PEX 12", "PEX 13" and "PEX 14" being the Statements for years 2009, 2010 and 2011 from Plaintiffs account with the Defendant that the Statements shows deductions were made for lease administration, annual rent, etc. When he was referred to account statement, "PEX16", "PEX 17" and "PEX 18" he again accepted that there were still deductions made to the account for the annual rental and lease administration.
7.1 In analysing the evidence of the Plaintiff I find that the Plaintiff has admitted in evidence that the land he occupies is a reserved land and that they were living there for a long time. When he was questioned as to why he is in Court the witness answered "Our land was reserved. We made an application to NLTB. Then gave us letter saying they will get the land. Told me to pay $4,075.00". It is clear from his answer that he is admitting the land was "reserved". It was also revealed by the Plaintiff's evidence that the buildings sitting on the land were constructed by his father and those buildings were there when his late father received the offer letter from to NLTB.
It is evident from document "PEX6" that the NLTB informed the Plaintiff's Solicitors that it is unable to give a new lease to the Plaintiffs as the land-owners have withdrawn their consent. It is stated in the said letter that the Board will refund the money paid by the Plaintiff and that the Plaintiff should vacate the land. Withdrawal of consent by the members Tokatoka Nakelo is marked as "DEX2". This withdrawal of consent is nearly 9 months after the offer letter was issued to the Plaintiff and the Plaintiff depositing the money as per the said offer letter. The offer letter "PEX4" refers to the following amounts:
(i) Illegal Occupation fee | $2000.00 |
(ii) NLTB costs | $1000.00 |
(iii) Stamp duty | $ 49.00 |
(iv) Registration | $ 2.50 |
(v) De-reservation fee | $ 250.00 |
(vi) Water Meter fee | $ 20.00 |
(vii) FEA connection | $ 30.00 |
(viii) Lease Administration fee | $ 20.00 |
(ix) Rent from 1/1/2005 to 31/12/2005 | $ 300.00 |
It also states that the offer is valid for six weeks from 15th December, 2004.
7.2 It is evident from receipt "PEX 4" that the Plaintiff has accepted the offer of the NLTB on 16/12/2004 by paying the $4,059.49 demanded to be paid as per the offer letter.
According to the evidence led there is no explanation given by the NLTB for the delay of nearly 9 months for not taking steps to de-reserve the land in order to lease it out to the Plaintiff. It is contended by the NLTB that the offer letter was issued subject to de-reservation and the new lease could not be issued to the Plaintiff as the land –owners withdrew their consent by letter dated 31st August, 2005. This is nearly 9 months after the Plaintiff accepted the offer for a new lease by paying the amount demanded by the NLTB.
7.3 It is surprising to find as to why the NLTB kept on deducting rent from the Plaintiff's
account, even after informing the Plaintiff's Solicitor by letter dated 3rd October, 2005 [PEX 6] that they are unable to issue a new lease to the Plaintiff and that the Plaintiff should vacate the land. It is evident from documents PEX 10 to PEX 14 and PEX 16 to PEX 18 that NLTB has deducted residential lease rentals from the Plaintiff's account instead of taking steps to evict the Plaintiff from the land. Moreover the NLTB has charged $100.00 from the Plaintiff as "application transfer fee" which is for the purpose of transferring the Original Plaintiffs' application to his son's name in 2011.
7.4 The Defendants witness Mr Jekope Vulise stated in evidence that he believes minimum consent of the members of the land-owning unit was given, not the majority required by the Board. He also said that 60% of the members has to sign and that's not the case here. His explanation for the delay in issuing a lease is due to the lack of consent from majority land-owners. When he was asked in cross-examination whether the NLTB at any time convey to the Plaintiff that he did not have the required consent for de-reservation of the land, witness said it is not in his records and that he has no idea about it except the withdrawal of consent by the landowners. He admitted that even after refusal to grant a lease to the Plaintiff NLTB deducted money from the Plaintiff's account as if there is a lease given to him.
7.5 In my view it is apparent from the evidence led that the Plaintiff has accepted the offer for lease by paying the lease rental, de-reservation fee etc.. It's also clear that the Defendant has failed to issue a lease to the Plaintiff for nearly 9 months and delayed the process till the land-owning unit withdrew their consent. I cannot accept that the Plaintiff failed to submit the required number of signatures from the land-owning unit for the purpose of de-reserving the land. If it was the case, why did the Defendant wait for 9 months without requesting the Plaintiff to submit the consent required. I am also surprised as I stated before by the conduct of the NLTB charging rental from the Plaintiff even after the offer was withdrawn. From all of the above I find that the Plaintiff has suffered a loss due to the conduct of the Defendant by not issuing a lease within the nine month period prior to the consent being withdrawn by the land-owning unit. It is clear from the conduct of the Defendant that it has failed to act diligently to issue a lease after the offer for lease was accepted by the Plaintiff.
7.6 From the evidence led I find that a lease cannot now be issued by the Defendant to the Plaintiff as land cannot be excluded from native reserve due to the land owners withdrawing their consent.
Section 17 of the iTaukei Land Trust Act provides that land may only be excluded from native reserve with the consent of the native owners, in the following terms:
17 (1) "The Board may, upon good cause being shown and with the consent of the native owners of the land, exclude either permanently or for a specified period any portion of land from any native reserve."
Having come to the conclusion that the Court cannot order specific performance of the letter of offer dated 15th December, next issue to be considered is the Plaintiff's entitlement for special damages $40,000.00, damages for breach of the letter of offer and costs the other reliefs sought by the Plaintiff by his amended Statement of Claim.
7.7 At this point I am of the view it is relevant to consider the principal laid down in NLTB vs Subramani [2010] FJCA9; ABU0076.2006 (25 February 2010).
In the said case Plaintiff Subramani paid lease renewal application fee to the NLTB and was told by the NLTB officer that the application would be processed which might take some time but eventually he would get a new lease. At various times during the next fifteen months Plaintiff made enquiries at the NLTB's office of the issuance of the lease and was told it was still being processed. Later the NLTB officers informed the Plaintiff that the NLTB would not renew the lease and the Plaintiff was in unlawful occupation of the native land. It was found in the said case that the NLTB and the head of the land-owning unit knew and actively encouraged the Plaintiff to renovate the buildings and the land with the promise that his lease would be extended. The Court of Appeal held in conclusion of the matter as follows:
" (47) It our respectful opinion that the decision in Chalmers v Pardoe protects the interest of the landowners because tenants who fail to notify the NLTB of dealings in the land under lease will get no assistance from the Court.
(48) However, if the NLTB or the landowners themselves directly involve themselves in such dealings, as was in this case, then as a matter of general equitable principle, it would be quite unconscionable, in our respectful view, for them to be able to escape the consequences of their actions when things go wrong by pleading illegality under the Act."
7.8 From the facts revealed in evidence at the trial, I find that the Plaintiff is somewhat in a similar position to Subramani when he was offered with a lease to the land by the Defendant. The Defendant and the landowners involved themselves in offering a reserved land on lease to the Plaintiff subject to de-reserving it. The offer was accepted by the Plaintiff and it was valid for nearly 9 months. Therefore I hold that the Defendant has breached the Contract to give on lease the reserved land within that period.
7.9 The Defendant in their defence to amended Statement of Claim and the agreed issue No. 3 (Pre-Trial Conference Minutes) takes up the ground that the Plaintiffs claim is statute barred. The Plaintiff claim in this matter is for specific performance of letter of offer and for damages due to breach of the said letter of offer.
Section 4(7) of the Limitation Act (Cap 35) provides as follows:
(7) This section shall not apply to any claim for specific performance of a contract or for any injunction or for other equitable reliefs, except in so far as any provision thereof maybe applied by the Court by analogy in like manner as has, prior to the commencement of this Act; been applied.
7.10 It is my view that by virtue of the said provision action based on a claim for specific
performance does not have a finite limitation period. Therefore I hold that the Plaintiff's claim in this matter is not statue barred as alleged by the Defendant.
8.1 By the written submissions filed the Plaintiff claims $525,000.00 as compensation for the loss of all three houses, further sum of $28,000.00 for the bulk. This claim was not sought by the Plaintiff in his Amended Statement of Claim. Furthermore, there is no evidence adduced to prove such a claim. Therefore I hold that the Plaintiff has no right to claim compensation for the loss of buildings after the conclusion of the trial.
8.2 In his evidence the Plaintiff said that his father spent more than $16,000.00 to renovate the houses and for fencing the land. He also said that he spent $8,000 to $9000.00 on excavation work. According to his testimony those renovations were done prior to the payment of $2,000 to the Mataqali on 23rd June, 1999. Though it is stated in the Amended Statement of Claim that the deceased (original Plaintiff) carried out renovations to the house in the sum of $15,000.00 on the assurance of the Defendant that it was in a position to grant a lease the evidence adduced at the trial does not establish that fact. He sated further that the house was beyond repairs at that stage. The Plaintiff marked in evidence "PEX 20", forty photographs of the buildings sitting on the land. According to the testimony of the Plaintiff and his mother Suraj Kumari the buildings were constructed by the original Plaintiff Satendra Kumar many years ago at a time that they were paying rent to Mr Buki.
8.3 In analysing the evidence as above I find that the buildings on the land were constructed and renovated prior to the NLTB issuing the offer letter to the Plaintiff. Therefore, I find that the facts of this case differs from the facts of Subramani's case mentioned above. In this matter the original Plaintiff has not constructed the buildings on a assurance given to him by the NLTB or the landowners that he will be issued with a lease for the land. It is also established that the Plaintiff has not constructed or renovated the buildings with the encouragement of the NLTB. However, I find that the NLTB has not acted diligently and failed to de-reserve the land and issue a lease while the consent of the landowners was in force. It is also established that the NLTB is continuing to charge rental from the Plaintiff even after the offer letter is withdrawn. NLTB has accepted the application transfer fee from the present Plaintiff which proves that the application for lease is still not rejected. It is transferred in the name of the present Plaintiff.
8.4 The photographs "PEX 20" proves that the buildings sitting on the land are in a dilapidated condition. According to the Plaintiff those are beyond repair now. The Plaintiff is likely to loose all these buildings which his father has constructed due to lease being not granted by the Defendant. This would not have happened if the NLTB acted diligently and granted a lease to the Plaintiff prior to the withdrawal of consent by the landowners.
In losing all the buildings and not having an opportunity to possess the land the Plaintiff in my view had suffered and still suffers loss and damages. In spite of all that the NLTB is still charging rental from the Plaintiff without a lease being given to him. Therefore I hold that the NLTB has failed to carry out its responsibilities towards the Plaintiff and as such the Plaintiff be awarded special damages, the quantum to be determined upon hearing the parties.
8.5 Though the Plaintiff in his written submission claims $150,000.00 as damages for breach of offer, I am of the view that the quantification of the amount to be awarded for the said breach should also be determined upon hearing the parties on the basis upon which the damages are calculated by reference to the evidence before Court.
9.1 As to costs, the Plaintiff has sought cost on Solicitor/Client indemnity basis. Therefore the Plaintiff will have to provide a calculation of costs to Court in order to determine the level of costs to be awarded to him.
10.1 (a) Order for specific performance of the letter of offer dated 15th December, 2004 by the Defendant for Lease/Tenancy of land known as "Navesikiuma" refused.
(b) A declaration that the Plaintiff is entitled to a Lease/Tenancy with respect to the land known as "Navesikiuma" of Lot 1 District of Vuda refused.
(c) The Defendant to pay the Plaintiff special damages and damages for breach of letter of offer, the quantum to be assessed by the Hon. Master.
(d) The Defendant to pay the Plaintiff the cost on Solicitor/Client indemnity basis, the quantum to be assessed by the Hon. Master.
(e) This matter is referred to the Hon. Master's Court (Lautoka) for the assessment of damages and costs ordered as above.
Lal S. Abeygunaratne
Judge
19th March 2015
At Lautoka
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