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Ali's Civil Engineering Ltd v Mala [2015] FJHC 416; Civil Appeal 81.2014 (8 June 2015)

In the High Court of Fiji at Suva
Civil Jurisdiction

Civil Appeal No. 81 of 2014

Between:

Ali's Civil Engineering Limited
Appellant

And:

Sunanda Devi Mala trading as Nita's Car Care
Respondent

Appearances Mr V. Prasad for the appellant
Mr T. Bukarau for the respondent

Date of Argument: 20th November, 2014

Judgment

1. This appeal is from a judgment of the Master of 8th August,2014,dismissing the originating summons filed under Or 113, by the appellant against the respondent and all other persons of part of a land described as "Lot 1 SO 4379, State Foreshore" (the land) in Approval Notice of Lease of 3rd April,2000.
   
2. In the affidavit filed in support of the originating summons, Niwaz Ali averred that:
   
   • The appellant was the lawful lessee of the land by Approval Notice of Lease of 3rd April,2000, from the Director of Lands.
     
   • The land is a protected lease.
     
   • The appellant allowed the respondent to occupy part of the land, to operate her "car wash and fast food takeaway" business, without a tenancy or sub-leasing agreement.
     
   • The appellant "never intended" the respondent to remain in the land for a long period of time.
     
   • The respondent continually sought time to relocate her business. She allowed other persons to occupy the land.
     
   • In April, 2013, officials of the Director of Lands inspected the land and informed the parties that the respondent's occupation was illegal, as the consent of the Director of Lands was not obtained.
     
   • On 17 October,2013,the appellant obtained the consent of the Director of Lands, to institute legal proceedings against all illegal occupants of the land, ("Kilavata Carriers, Nita's Car Wash and Sanyo Cabs").
     
   • The respondent then, agreed until to give up possession of the land by 31st December, 2013.
     
   • On 31stDecember, 2013, the respondent filed an action against the appellant and Director of Lands, in the Nasinu Magistrates' Court and obtained ex parte orders against the appellant. Upon application by the appellant, it was held that the Court has no jurisdiction to hear the matter, without the consent of the Director of Lands.
     
3. The respondent in its affidavit in opposition stated as follows:
   
   • (a) The appellant sold his lease interest in the land to Challenge Engineering Limited,(CEL). The appellant and CEL are locked in a series of cases with Habib Bank.
     
   • (b) The Director of Lands should be made a party to these proceedings.
     
   • (c) The appellant's father granted the respondent express consent to run her business from the land, upon him acquiring the necessary consent from the Director of Lands and her paying rent. The respondent has paid a total sum of $ 32,560.00, as rent from October,2006.
     
   • (d) The respondent stopped paying rents, when officials of the Lands Department inspected her business premises and found that she had entered into an unauthorized tenancy arrangement with the appellant.
     
   • (e) The officials instructed her to stop paying rents to the appellant, in order that the appellant formalize the tenancy arrangement by obtaining the required consent.
     
   • (f) The appellant terminated the water supply, to force her off the land. The water meter is registered in her name.
     
4. The appellant in the affidavit in reply filed on its behalf stated:
   
   1. The appellant has not sold or transferred its Approval Notice of Lease of 3rd April,2000.
      
   2. In HBC 94 of 2006,Amaratunga J in his Judgment on Admission held that the mortgage registered as no. 8465 is ab initio, null and void and the purported mortgagee sale under that mortgage was void.
      
   3. The appellant had not agreed to a long term occupation of the land by the respondent nor that it would seek the consent of the Director of Lands .
      
   4. On 6th September, 2012, the Nasinu Town Council informed the appellant that the respondent had been given a notice to demolish all of its illegal structures and to vacate the land by the end of September 2012.
      
   5. The respondent did not comply with the statutory notice issued by the Nasinu Town Council.
      
   6. The water meter is not registered in the name of the respondent. The appellant requested the respondent to pay the water bills. Since she refused to pay the bills, the appellant turned off the water supply. When the respondent paid the bills, the plaintiff restored the water supply.
      
   7. The appellant had scheduled development works to commence on the land from 1st January, 2014.
      
   8. On 28th March,2014, the respondent filed another action in the Nasinu Magistrates' Court against the appellant. The Magistrate stayed the action, until determination of this case.
      
5. The Master held that the appellant had failed to satisfy that it had a right to claim possession of the land. It was further held that the Approval Notice of Lease relied on by the appellant could not be construed as a valid lease, since there was no evidence that the appellant had complied with the conditions in the Approval Notice.
   
6. The grounds of appeal to this Court read:
   
   1. That the learned Master erred in law and fact in construing whether the Approval Notice of Lease dated 3rd April 2000 was a proper lease.
      
   2. That the learned Master erred in law and fact in holding that the Approval Notice of Lease dated 3rd April 2000 could not be constructed as a valid lease either under the provisions of State (Crown) Lands Act or under the laws of equity.
      
   3. That the learned Master erred in law and fact in dismissing the Originating Summons for Summary Possession of the Land comprised in Approval Notice of Lease dated 3rd April 2000.
      
   4. That the learned Master erred in law and fact in awarding costs of $1,000.00 to the Defendant.
      
7. The determination
   
   1. At the hearing, Mr Bukarau, counsel for the respondent conceded grounds 1 and 2 of the appeal, as also stated in his written submissions. He agreed that the Master had erred, in concluding that the appellant did not have a right to claim possession of the land under Approval Notice of Lease of 3rd April,2000.
      
   2. On the third and fourth grounds, Mr Bukarau in his written submissions, states that the matter should be remitted to the Master, to determine the issue he had not considered further, viz, whether the respondent had the license or consent of the owner to occupy the land.
      
   100. I do not find it practical to pursue that course of action. I proceed to determine that issue.
        
   4. Mr Bukarau, while accepting that the appellant had a valid Approval of Notice submitted that the appellant had sold the land.
      
   5. In riposte, Mr Prasad, counsel for the appellant, drew my attention to the judgment of Amaratunga J in Ali's Civil Engineering Limited v Habib Bank Ltd, (2013) FJHC 108. In that case, it was held that the purported mortgage sale under Mortgage no.8465 is void. Mr Prasad also said that there has been no stay of that judgment.
      
   6. I return to the substantive issue raised in grounds 3 and 4 of this appeal.
      
   7. Clause 1 of the Approval Notice of Lease provides that the lease is a "protected lease under the provisions of the Crown Lands Act". It is a condition of the lease that the plaintiff, as lessee "shall not transfer, sublet, mortgage, assign or part with the possession" of the land, without the written consent of the lessor.
      
   8. In Logessa v Pachamma, (1980) FJCA 2; Civil Appeal No 59 of 1979, as referred to by Mr Prasad, the FCA held that an Approval Notice which contained the words "This lease is a protected lease under the provisions of the Crown Lands Ordinance", was subject to section 13(1) of the Crown Lands Ordinance.
      
   9. The section titled "Protected leases" reads:
      

Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act."

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, without such consent as aforesaid, ...

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.

10. Mr Prasad, in his written submissions, has also cited the following passage from the judgment of Byrne J in Lal v Nand (1994) FJHC 204; (1994) 40 FLR 94:
    

...in the absence of any consent by the Director of Lands to the transaction between the Plaintiffs and the Defendants must render the Defendant's occupation of the land void unless he can establish an argurable defence based on his having an option to purchase the property or some other defence.

11. The respondent in its affidavit in opposition filed before the Master contended that the appellant's father had consented to her occupation of the land, on him obtaining the necessary consent of the Director of Lands.
    

50. The legal position on an arrangement between parties to sub-lease land of a "protected lease" was succinctly stated by Gates J (as he then was) in Prasad v Chand, (2001) 1 FLR 164 as follows:
    

Whatever the nature of the permission granted to the Defendant(by the Plaintiff) to occupy the relevant State land, it was clearly unlawful because it lacked the Director's consent..... The Director has had no prior opportunity to evaluate the Defendant as a suitable tenant of the State, the very purpose for the consent provision.

13. In Panjali v Dugu, (2010) FJHC 618; Civil Action 12 of 2010) it was held that a defendant could not rely on a sub-lease to justify continuing in possession, due to its illegality. Calanchini J(as he then was) cited Devlin J in St John Shipping Corporation v Joseph Rank Limited,(1957)1 QB 267 at page 283 as follows:
    

....the court will not enforce a contract which is expressly or impliedly prohibited by statute. If the contract is of this class it does not matter what the interest of the parties is: if the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not.

14. The respondent's contention that she paid rent, in my view, does not legalise the sub-lease.
    
15. In Tradewinds Marine Ltd v Fa, (1994) FJHC 80 it was held that albeit, a defendant continued to pay rent to the plaintiffs, he could not be regarded as a lawful tenant of the property, since the consent of the Director of Lands was not obtained to occupy the property.
    
16. It follows that the respondent cannot rely on any arrangement between the appellant and respondent, to justify her illegal occupation of the land.
    
17. I conclude that the appellant is entitled to an order to recover immediate possession of the land from the respondent and all other persons in occupation of the land, in terms of Or 113.
    

8. Orders
   
   1. The appeal of the appellant is allowed. I set aside the judgment of the Master.
   2. The respondent and all other persons in possession of that part of land contained in Lot 1 SO 4379 State Foreshore in the District and Province of Naitasiri in Approval Notice of Lease of 3rd April, 2000, shall forthwith vacate and deliver that part of land.
   3. The respondent shall pay the appellant $ 2000 costs summarily assessed within 14 days of this judgment
      

8th June, 2015

A.L.B.Brito-Mutunayagam
Judge