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Salim v iTaukei Land Trust Board [2015] FJHC 825; HBC37.2012 (27 October 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION


CIVIL ACTION NO: HBC No. 37 of 2012


BETWEEN:


Mohammed Salim s/o Fakir Mohammed
Plaintiff


AND:


i Taukei Land Trust Board
Defendant


BEFORE : The Hon. Mr Justice David Alfred


Counsel : Mr A Ram for the Plaintiff
Mr S Vukica for the Defendant


Dates of Hearing : 15 July, 16 July and 11 August 2015
Date of Judgment : 27 October 2015


JUDGMENT


  1. According to the Amended Statement of Claim, the Plaintiff claims general damages and special damages being loss of income and loss of profits as a result of the Defendant's alleged failure to grant him a lease of a half of the land formerly held under Native Lease No. 10725 (the land).
  2. The Defendant in its Amended Statement of Defence avers that the Defendant's efforts to comply with the orders of the Agricultural Tribunal were sabotaged by the Plaintiff's refusal to execute a surrender of the said lease and therefore prayed the Plaintiff's amended claim be dismissed.
  3. There was no reply to the Amended Defence.
  4. According to the Pre-Trial Conference Minutes (Minutes):
  5. A Schedule of Special Damages and an Agreed Bundle of Documents were also filed.
  6. When the Plaintiff started his case on 15 July 2015, the Defendant and its Counsel were absent although aware of this hearing date. The first witness the Plaintiff called was Ronald Navin Prakash (PW1) the Deputy Registrar of the High Court at Labasa. He produced the order and judgment of the Court of Appeal dated 16 March 2009.
  7. The second witness was Vijendra Singh (PW2) an accounts officer in Fiji Sugar Corporation (FSC). He gave evidence regarding the prices of sugar at various dates and the payments made.
  8. The next witness was the Plaintiff himself (PW3). He said the Defendant had to do a sub-division of the land and asked him to surrender the lease. He refused to do so because if he did then his contract with the FSC would be cancelled. It was not safe to sign the surrender as the Defendant would give the lease to someone else. His sources of income from his farming came from cultivating sugar cane, rearing poultry and animals, and planting vegetables.
  9. On the next day (16 July). Counsel for the Defendant appeared apologizing for not attending Court the previous day.
  10. PW3 continued with his evidence regarding the claims in the Schedule of Special Damages, fleshing out his alleged claims which now included income from planting fruits and rice.
  11. Under cross examination, PW3 said when his father made his will, he was the sole beneficiary. He was involved in the Tribunal with his brother. He did not nominate any surveyor and did not apply for a renewal of the lease.
  12. The next witness was Bhawani Prasad (PW4) a labourer. He said he was the sirdar (head) of the cane cutters. He used to oversee the Plaintiff's farm. Depending on the weather, it could yield 250-300 tons of sugar per annum. Rice was also planted.
  13. Under cross examination PW4 said he was not a registered valuer of future crops. He had personal knowledge of the figures for the Plaintiff's farm.
  14. The final witness was Mohammed Tahir Husain (PW5). He said he was a field officer with FSC from 1975 till 2006. During that period he had to supervise planting and harvesting of sugar cane and doing crop estimation. These were used for allocation of quotas. He testified regarding the profits and expenses of the Plaintiff's farm for the sugar cane, rice farming, fruits and vegetables.
  15. With this the Plaintiff closed his case. The counsel of the Defendant applied for an adjournment, as none of his 3 witnesses were present, which was granted subject to the payment of costs to the Plaintiff before the next hearing date.
  16. On the next hearing date, 11 August 2015, the Defendant opened its case with its sole witness. He was Nadidi Taginisela (DW1) the state officer of the Defendant. He was in charge of rent reassessment and asset valuation and was in Court to explain the Plaintiff's claim. The Defendant's expectation is every farmer is to produce sugar cane only. Rearing livestock is beside the purpose of the lease. The land is purposely only for sugar cane. (On being shown the Plaintiff's Schedule of Special Damages dated 12 June 2014) he said he was familiar with this.
  17. In their estimation, the Defendant only values in terms of sugar cane production. It is the farmer's choice whether to plant rice or do poultry etc. These activities are carried out at the tenant's own expenses. The data from the FSC is based on productivity of sugar. The land concerned could only have sugar cane planted and not paddy and was not for poultry. He did not agree with the total Schedule of Special Damages, and could not accept the total claim of $600,000.00.
  18. Under cross examination DW1 said the land was given for agricultural purposes. With regard to the Schedule of Special Damages it was necessary to have realistic figures.
  19. In re-examination, DW1 said the Plaintiff's figures were not realistic nor reliable. One could not in Labasa make $650,000.00 for 30 years. With this the Defendant closed its case.
  20. Both Counsel agreed that the issue is: Is the Defendant liable to pay any damages to the Plaintiff and if it is, how much should the damages be.
  21. I then gave Counsel time lines for the filing of their submissions and for the Plaintiff's reply. I then reserved Judgment to a date to be announced.
  22. Having perused the Plaintiff's Submission, the Defendant's Submission and the Plaintiff's Reply, the last having been filed on 6 October 2015, I will now proceed to deliver my judgment.
  23. The matrix of this matter is succinctly and lucidly stated in para [1] of the judgment of the Court of Appeal (the Court), which reads as follows:

"The Appellant (Plaintiff) inherited a little over 20 acres of sugar cane farm land near Bucalevu, Macuata as a sole beneficiary of his father's will. The land was leased from the Native Land Trust Board (NLTB) which expired on 30 June 2006." (emphasis mine)


  1. The judgment of the Court delivered on 16 March 2009 ordered the Defendant to "perform and carry into execution the orders of the Tribunal made on 6 November 1992" (orders).
  2. The relevant orders for our present purposes are the following:
  3. It is therefore not correct for Plaintiff's counsel to say, in the Reply to Defendant's Submission, that the Court of Appeal ordered "the Defendant to grant the Plaintiff a 30 year lease over the subject property". It never did.
  4. I note that there has been an error in the designation of the parties in the Tribunal's orders. I have therefore corrected this error so that the First Respondent is the Defendant (NLTB) and the Second Respondent is the Plaintiff (Salim).
  5. The sole issue is whether the Defendant failed to comply with the Tribunal's orders as ordered by the Court. The Tribunal's decision states it is an application for relief when a tenancy is unlawful under Section 18(2) of the Agricultural Landlord and Tenant Act (the Act) over the land. Section 18 (2) is to the effect that where a tribunal considers any landlord or tenant is in breach of this Act or of any law, the tribunal may declare the tenancy or a purported tenancy, null and void and may order all or part of the agricultural land the subject of an unlawful tenancy to be assigned to any tenant. However, there is nothing on record to show that the Applicant (Aziz) had been a tenant of the land.
  6. Further, the Applicant (Aziz) could have first applied to the Tribunal under Section 5(1) of the Act, if he maintained he was a tenant and his landlord (NLTB) was refusing to accept him as such, for a declaration that he is a tenant. The fact he did not, is clear evidence that he was never a tenant of the Defendant.
  7. The Tribunal's orders nowhere states that it is the responsibility of the Defendant (NLTB) to attend to the process of subdivision. I have therefore to refer to the lease to ascertain who is responsible.
  8. I note that clause (4) of the lease (Plaintiff's Exhibit P16) states that the lessee (Fakir Hussain (since deceased)) shall not subdivide the land without the written consent of the lessor (the Defendant) first had and obtained and then only in accordance with a plan of subdivision approved by the lessor in writing. This clearly indicates that it is the lessee who attends to the subdivision and then submits the plan to the lessor for its approval.
  9. Relying on the above clause (4), I shall have to find and hold that it was the Plaintiff's responsibility (as lessee) to attend to the survey, obtain the subdivision plan and then submit it to the Defendant (as lessor) for its approval.
  10. This the Plaintiff has clearly and undeniably failed to do. He cannot now try to evade his responsibility and the consequences of his failure, by attempting to pass the buck to the Defendant.
  11. Further, the Plaintiff by his own admission had refused to surrender the lease. His stated excuse for this is unacceptable. This is because while the will of the deceased devised the land to him exclusively the Plaintiff was by agreement and by the orders of the Tribunal now divesting himself of half of the land. This meant he was no longer entitled to hold on to the lease. It was incumbent on him to put into effect and implement the terms of the settlement that he had agreed upon, which was that his brother Aziz would receive half of the land.
  12. The land that was held by their father and had passed on his death to the Plaintiff was now to be broken up into two and that would by necessary implication mean the 2 pieces of the original land would thenceforth be held by the 2 brothers, one each, for the remainder of the original lease. I am here following Finnigan J in Govind Prasad v The Native Land Trust Board (No. 55/2006) Lautoka Action No. HBC 145 of 2002 (No. 5 in the Plaintiff's Bundle of Authorities). At para [16] the learned Judge said "It is I suppose possible that the Plaintiff who is now 62 years of age and/or his heirs might have continued harvesting cane on the property for the remainder of the life of the lease which on the evidence was 29 years". The Judge said this regarding a claim for "loss of use of land to earn income for 30 years."
  13. The above judgment shows quite clearly that heirs of the original lessee, like the Plaintiff, only occupy the land for the remainder of the life of the original lease. Thus applying this principle to the instant case, neither the terms of settlement nor the Tribunal's orders can require the Defendant to give each of the 2 brothers a fresh new lease for a term of 30 years. It is not apparent from the record, why the Defendant should be required to do anything at all, when it had nothing to do with the dispute between the siblings over their father's estate.
  14. It was bears repeating that the root of the Plaintiff's claim is the will of his deceased father. If he had not agreed to the settlement with his brother, the latter would not have been entitled to any part of the land, let alone half of it. If the brother was dissatisfied with the disposition of the father's estate, then he should have been legally advised to address his dispute to the probate jurisdiction of the High Court, not to the Agricultural Tribunal.
  15. For these reasons I find and I so hold that the provisions of Section 6(b) of the Act do not apply to this case. This is because the Tribunal's order is not creating a contract of tenancy after the commencement (on 1 September 1977) of the Agricultural Landlord and Tenant (Amendment) Act, 1976. The Tribunal is merely giving effect to an agreed sub division of the land held under the lease which was granted by the Defendant (NLTB) to the deceased commencing on 1 July 1956.
  16. Because the Plaintiff has not proved that there was any breach by the Defendant of the Tribunal's orders or of the Court of Appeal's order, I find and so hold that he has failed to satisfy me on the balance of probabilities that he has any claim against the Defendant. I therefore dismiss the Plaintiff's claim with costs which I summarily assess at $2,500.00 to be paid by the Plaintiff to the Defendant.
  17. For the sake of completeness I will assess the damages if the Defendant had been found liable to the Plaintiff.
  18. The Plaintiff's cause of action is based on an alleged breach of contract, I will refer to Chitty on Contracts, (29th Edition) Volume 1, where at 26-045, it states the rule in Hadley v Baxendate (1854) 9 Exch. 341 This is that the damages should be such as may fairly and reasonably be considered either as arising according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.
  19. Because the Plaintiff did not do anything at all towards obtaining a subdivision of the land, item 6 of the orders would apply so that each brother would farm the land, under the original lease, according to the agreed boundaries, for the remainder of the life of the lease. The evidence showed this was done. This clearly means there was no loss of income during that period. This is borne out by the Statement of Claim where the special damages claimed are for the period commencing 1 July 2006, a date after the expiry of the lease.
  20. There is no basis whatsoever for the Plaintiff to claim for any loss after the expiry of the original lease, because the clear intention of all was a subdivision of the original lease and not a fresh new lease. Therefore when the lease expired on 30 June 2006 that was the end of the matter.
  21. No evidence had been provided that this alleged loss of income arose naturally from the alleged breach of contract or was in the contemplation of both parties in 1992 when the Tribunal made its orders.
  22. In Govind Prasad's case, Finnigan J awarded damages for the financial and personal injury and loss suffered by the Plaintiff as a result of the unjustified eviction. Nothing even remotely resembling that has happened to the Plaintiff. From being the sole owner of the whole land under the will, he has of his own volition given up half of it to his brother. It is then his responsibility to carry out into effect his own decision. It defies reason that, that could become the responsibility of the Defendant. It is even more inconceivable that it could mean the lease which ended on 30 June 2006 could be transformed into 2 new leases each with a life of 30 years from the date of the Tribunal decision on 6 November 1992 or some other later date.
  23. It is as plain as a pike staff, that from start to finish the Plaintiff was only entitled to the land he inherited from his father and only for the remainder of the life of the lease till it expired. If he chose to give half of it to his brother that was his own decision. But this did not ipso facto entitle him to compel the Defendant to grant him a new lease with a new (extended) life. His decision meant that he would only enjoy the proceeds of half of the land till the lease expired and this indeed he did. His claim is really a specious one claiming something he was never entitled to and which the Defendant was never obliged to grant viz a new lease for his half share of the land which would continue after the expiry of the lease for the land he inherited from his father. If this is the Plaintiff's argument, then this is sophistry which I am compelled to reject out of hand.
  24. In any event no documentary evidence or other proof had been provided for the alleged loss of income.
  25. As for the claim of $30,000.00 for general damages for pain and suffering, no medical evidence has been provided. Suffice it for me to say that this claim is so unlikely, excessive and too remote, that it would not have been allowed at all.
  26. In the event, I enter judgment for the Defendant with costs of $2,500.00 to be paid by the Plaintiff.

Delivered at Suva this 27th day of October 2015.


David Alfred
JUDGE

High Court of Fiji

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