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Subadra v Kumar [2015] FJHC 874; HBC04.2015 (13 November 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 04 of 2015

IN THE MATTER of an application under Section 169 of Part XXIV of the Land Transfer Act, Cap. 131 for an Order for Immediate vacant possession.

BETWEEN:

SUBADRA of Malele, Tavua, Cultivator as sole executrix and Trustee
of the Estate of Armogam
PLAINTIFF

AND:

JANAND KUMAR of Malele, Tavua, Cultivator.
DEFENDANT

Mr. Niko Nawaikula for the Plaintiff
(Ms.) Jyoti Sangeeta Singh Naidu for the Defendant

Date of Hearing: - 27th July 2015
Date of Ruling : - 13th November 2015

RULING

(A) INTRODUCTION

(1) The matter before me stems from the Plaintiff's Originating Summons dated 12th January 2015, made Pursuant to Section 169 of the "Land Transfer Act", Cap 131, for an Order for Vacant Possession against the Defendant.

(2) The Defendant is summoned to appear before the Court to show cause why he should not give up vacant possession of the Plaintiff's property comprised in Crown Lease No: 15294, known as "Yaladro".

(3) The application for eviction is supported by an affidavit sworn by the Plaintiff on 12th January, 2015.

(4) The application for eviction is strongly resisted by the Defendant.

(5) The Defendant filed an Affidavit in Opposition opposing the application for eviction followed by an Affidavit in reply thereto.

(6) The Plaintiff and the Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Plaintiff and the Defendant filed a careful and comprehensive written submission, for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1) What are the circumstances that give rise to this present application?

(2) To give the whole picture of the action, I can do no better than set out hereunder the main averments/assertions of the pleadings/affidavits.

(3) The Plaintiff in his Affidavit in Support deposes inter alia (so far as relevant);

Para (1) THAT I am the Plaintiffs in this action, and registered proprietor of Native Lease Registered No CL 15294. I annex here marked "S1" is a true copy CL 15294 and I further annex marked "S2" a true copy Probate No. 37173.

(2) THAT I make this Affidavit in Support of the Summons for Ejectment against the defendant filed herein.

(3) THAT I make this Affidavit from personal knowledge, from advice and belief and from file records that are available to me and to that extent I verily believe the facts I depose here are true and correct.

(4) THAT I am the last registered proprietor of all that piece of land, known as part of Yaladro or Tovatova formerly CT 6594 in the district of Tavua contained in CL No: 15294.

(5) THAT the Defendant had been in occupation of the subject land from about June 2012 while I was in overseas and I gave to him a limited Power of Attorney to be the caretaker whilst I was away to assist him attend to my sugar cane farms and my property.

(6) THAT on my return I discovered that instead of looking after the cane he has grazed his animals on my field and has further brought all his family to occupy my house and he has used all fertilizers and assistance under my Power of Attorney to develop his own farm.

(7) THAT on this discovery I immediately revoked my Power of Attorney No. 54430, revoked all rights and authority I gave to him to occupy my land and demanded he deliver to me possession of my property and land.

(8) THAT despite my revoking his rights and interest on my subject land he has continued to occupy without any authority or any colour of right.

(9) THAT on 26th November 2014 I issued to the defendant a notice to deliver up vacant possession which was served on him on the 1st December 2014 but to date he continues to be in occupation. I annex here marked "S3" true copy Notice.

(10) THAT I sincerely believe that the Defendant has no cause or reason to be on the land and pray the Court grants the Orders that I am asking.

(4) The Defendant for his part in seeking to show cause against the Summons, filed an Affidavit in Opposition, which is substantially as follows; (so far as relevant);

Para (2) THAT I deny paragraph 5 of the Plaintiff's Affidavit. Plaintiff had sold her Land in 2012 in the sum of $25,000.00 (twenty five thousand dollars). The sum of $19,000.00 (nineteen thousand dollars) is already paid to the Plaintiff through the Cane Proceeds under my cultivation. (Copies of FSC Statement is annexed marked letter "A".)

(3) THAT I deny paragraph 6 of the Plaintiff's Affidavit. That upon the death of the Plaintiff's husband, Plaintiff got remarried to her brother-in-law Kumaran Naidu and planned to migrate. She approached me to buy her land. She told me that she will migrate to Australia with her husband Kumaran Naidu and also promised me that she will sign the Transfer Documents upon receipt of $25,000.00 (Twenty Five Thousand Dollars) being full purchase price. After three years of my cultivation and occupation of the Land, the plaintiff called me from Australia and told me that she is divorced by Kumaran Naidu and she does not have place to stay. The Plaintiff than requested me to leave the property and the Plaintiff agreed to refund $19,000.00 (nineteen thousand dollars) but I refused.

(4) THAT I do not have any knowledge of Revocation of Power of Attorney as per Clause 8 of the Plaintiff Affidavit. Copy of letter from FSC in respect of the validity of Power of Attorney is annexed marked letter "B".

(5) THAT as to paragraph 9 of the Plaintiff Affidavit, I replied to Messrs Reddy Nandan Lawyers. Copy of my reply dated 4th December, 2014 is annexed marked letter "C".

(6) THAT I have instituted a Agricultural Tribunal Action in Tribunal being case number W/D 05/15 which is coming up on 1st April, 2015. Copy of the Tribunal Action is annexed marked letter "D".

(7) THAT I believe that I have case to answer and hereby pray to the Honourable Court that the Plaintiff's action be put off the list till the final determination of the Tribunal Action number W/D05/15.

(5) The Plaintiff filed an Affidavit in Rebuttal deposing inter alia (so far as relevant);

Para (2) THAT as to paragraph 2 of the said Affidavit I reject the contents therein and reiterate my stand on my original affidavit.

(3) THAT as to paragraph 3 of the said Affidavit I strongly deny the contents therein:

(i) that my marriage to Kumaran Naidu was well over before I went to visit my daughter for 3 months in Australia last year.

(Annexed herein a copy of my passport record of travel marked "S1")

(ii) there was never any talk or discussion with the Defendant to migrate.

(iii) there was never any talk to sell my land but the Defendant was employed to cultivate my farm.

(iv) that I visited my daughter for 3 months only on Tourist Visa and I travelled alone as I had already divorced the Defendant.

(v) that my daughter is a permanent resident of Australia and I have no problem in living with them as a daughter she is there to look after my staying time.

(4) THAT as to paragraph 4 of the said Affidavit I have revoked the Power of Attorney on the 27th January 2015 and the reason being as he was misusing the said power to try to get ownership of the said property.

(Annexed hereto is copy of the Revocation of Power of Attorney marked "S2"

(5) THAT as to paragraph 6 of the said Affidavit the I adult receiving the said Tribunal application and the matter will vigorously defended.

(6) THAT I pray that the Defendant defence is baseless and should be struck out with costs on indemnity basis.

(C) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and Judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiff now seeks.

(2) Rather than refer in detail to the various authorities, I propose to set out, with only limited citations, what I take to be the principles of the play.

(3) Sections from 169 to 172 of the Land Transfer Act (LTA) are applicable to summary application for eviction.

Section 169 states;

"The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) .....;

(c) ...

Section 170 states;

"The summons shall contain a description of the land and shall require the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons."

Section 171 states;

"On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in Ejectment.

Section 172 states;

"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgage or lessor or he may make any order and impose any terms he may think fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons.

[Emphasis provided]

(4) The procedure under Section 169 was explained by Pathik J in Deo v Mati [2005] FJHC 136; HBC0248j.2004s (16 June 2005) as follows:-

The procedure under s.169 is governed by sections 171 and 172 of the Act which provide respectively as follows:-

"s.171. On the day appointed for the hearing of the Summons, if the person summoned does not appear, then upon proof to the satisfaction of the Judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment."

"s.172. If a person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit."

It is for the defendant to 'show cause.'

(5) The Supreme Court in considering the requirements of section 172 stated in Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2) as follows and it is pertinent:

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right, must be adduced."

(6) The requirements of section 172 have been further elaborated by the Fiji Court of Appeal in Azmat Ali s/o Akbar Ali v Mohammed Jalil s/o Mohammed Hanif (Action No. 44 of 1981 – judgment 2.4.82) where it is stated:

"It is not enough to show a possible future right to possession. That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit" These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require.

(D) ANALYSIS

(1) This is an application brought under Section 169 of the Land Transfer Act, [Cap 131].

Under section 169, certain persons may summon a person in possession of land before a judge in chambers to show cause why that person should not be ordered to surrender possession of the land to the Claimant.

For the sake of completeness, section 169 of the Land Transfer Act, is reproduced below;

169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

I ask myself, under which limb of section 169 is the application being made?

Reference is made to paragraph (01) of the Affidavit in Support of the application for vacant possession.

Para (1) THAT I am the Plaintiffs in this action, and registered proprietor of Native Lease Registered No CL 15294. I annex here marked "S1" is a true copy CL 15294 and I further annex marked "S2" a true copy Probate No. 37173.

Section 169 (a) of the Land Transfer Act, Cap 131, requires the Plaintiff to be the last registered proprietor of the land.

The term "proprietor" is defined in the Land Transfer Act as "the registered proprietor of land, or of any estate or interest therein".

The term "registered" is defined in the Interpretation Act, Cap 7, as "registered used with reference to a document or the title to any immovable property means registered under the provisions of any written law for the time being applicable to the registration of such document or title".

It is necessary to look closely at the Crown Lease. According to the Crown Lease No: 15294 (Annexure S-1), the Plaintiff is the lessee of the subject land. The Crown Lease is registered with the "Registrar of Titles" in April 2004.

In all the circumstances, I am driven to the conclusion that the Plaintiff holds a registered lease and could be characterized as the last registered proprietor of the land in question.

Therefore, it is clear beyond question that the application for eviction is more specifically brought under Section 169 (a) of the Land Transfer Act. It is pertinent to note that the Plaintiff's "locus standi" or legal standing to bring this action is not disputed by the Defendant.

On the question of whether a lessee can bring an application under Section 169 (a) of the Land Transfer Act, if any authority is required, I need only refer to the sentiments expressed by Master Robinson in "Michael Nair v Sangeeta Devi", Civil Action No: 2/12, FJHC, decided on 06.02.2013. The learned Master held;

"The first question then is under which ambit of section 169 is the application being made? The application could not be made under the second or third limb of the section since the applicant is the lessee and not the lessor as is required under these provisions. But is the applicant a registered proprietor? A proprietor under the Land Transfer Act means the registered proprietor of any land, or of an estate or interest therein". The registration of the lease under a statutory authority, the iTLTB Act Cap 134, creates a legal interest on the land making the applicant the registered proprietor of the land for the purposes of the Land Transfer Act. He can therefore make an application under section 169 of the Land Transfer Act".

The same rule was again applied by the learned Master in "Nasarawaqa Co- operative Limited v Hari Chand", Civil Action No: HBC 18 of 2013, decided on 25.04.2014. The learned Master held;

"It is clear that the iTLTB as the Plaintiff's lessor can take an action under section 169 to eject the Plaintiff. This is provided for under paragraphs [b] &[c]. For the lessor to be able to eject the tenant or the lessee it must have a registered lease. It is not in dispute that the Plaintiff holds a registered lease, the lease is an "Instrument of Tenancy" issued by the iTLTB under the Agricultural Landlord and Tenancy Act. It is for all intents and purposes a native lease and was registered on the 29 November 2012 and registered in book 2012 folio 11824. It is registered under the register of deeds. There is nothing in section 169 that prevents a lessor ejecting a lessee from the land as long as the lease is registered. How will the lessee then eject a trespasser if the lessor in the same lease can use section 169? The lessee under section 169 can eject a trespasser simply because the lessee is the last registered proprietor. The Plaintiff does not have to hold a title in fee simple to become a proprietor as long as he/she is the last registered proprietor. A proprietor is defined in the Land Transfer Act as "proprietor" means the registered proprietor of land, or of any estate or interest therein". The Plaintiff has an interest by virtue of the instrument of tenancy and therefore fits the above definition and can bring the action under section 169.

A somewhat similar situation as this was considered by His Lordship Justice K.A. Stuart in Housing Authority v Muniappa1977, FJSC. His Lordship held that the Plaintiff Housing Authority holds a registered lease therefore it could be characterised as the last registered proprietor.

In Habib v Prasad [2012] FJHC 22, Hon. Madam Justice AngalaWati said;

"The word registered is making reference to registration of land and not the nature of land. If the land is registered either in the Registrar of Titles Office or in the Deeds Office, it is still registered land. This land has been registered on 4th March, 2004 and is registered at the Registrar of Deeds Office, it is still registered land. The registration is sufficient to meet the definition of registered in the Interpretation Act Cap 7:-

"Registered" used with reference to a document or the title to any immoveable property means registered under the provision of any written law for the time being applicable to the registration of such document or title".

(2) Before determining against the Defendant, the real issue and the only issue which this Court has to consider at the outset is whether the Plaintiff has satisfied the threshold criteria in Section 170 of the Land Transfer Act.

Pursuant to Section 170 of the Land Transfer Act;

(1) the Summons shall contain a "description of the Land"

AND

(2) shall require the person summoned to appear in the court on a day not earlier than "sixteen days" after the service of Summons.

The interval of not less than 16 days is allowed to give reasonable time for deliberations and to prevent undue haste or surprise.

I ask myself, are these requirements sufficiently complied with by the Plaintiff?
The Originating Summons filed by the Plaintiff does contain a description of the subject land. The subject land is sufficiently described. For the sake of completeness, the Originating Summons is reproduced below.

SUMMONS

LET the Defendant attend attend before a Master in Chambers at the High Court, Lautoka on the 13th day of February, 2015 at the hour of 8.30 o'clock in the forenoon or so soon on the hearing of an application on the part of the above named Plaintiff under Section 169 of Part XXIV of the Land Transfer Act 131 that the Defendant JANAND KUMAR of Malele, Tavua do show cause as why an Order for immediate vacant possession of the property situated at Yaladro or Tovatova, being comprised in CL No: 15294 known as Yaladro or Tovatova, in the district of Tavua which the Plaintiff is the last proprietor should not be made against himself upon the grounds set forth in the Affidavit of SUBADRA, the Plaintiff, sworn and filed herein..

THIS APPLICATION is made under S169 of the Land Transfer Act and the inherent jurisdiction of the Court.

DATED this 12th day of January, 2015.

(Emphasis Added)

In light of the above, I have no doubt personally and I am clearly of opinion that the first requirement of Section 170 of the Land Transfer Act, has been complied with.

Now comes a most relevant and, as I think, crucial second mandatory requirement of Section 170 of the Land Transfer Act.

The Originating Summons was returnable on 13th February 2015. According to the Affidavit of Service filed by the Plaintiff, the Originating Summons was served on the Defendant on 14th January 2015.

Therefore the Defendant is summoned to appear at the Court on a date not earlier than "sixteen days" after the Service of Summons. Therefore, the second express requirement of Section 170 of the Land Transfer Act, too has been complied with.

Having carefully considered the pleadings, evidence and oral submissions placed before this Court, it is quite possible to say that the Plaintiff has satisfied the threshold criteria in Section 169 and 170 of the Land Transfer Act. The Plaintiff has established a prima facie right to possession. Now the onus is on the Defendant to establish a lawful right or title under which he is entitled to remain in possession.

In the context of the present case, I cannot help, but recall the rule of law enunciated in the following judicial decisions.

In the case of Vana Aerhart Raihman v Mathew Chand, Civil Action No: 184 of 2012, decided on 30.10.2012, the High Court held;

"There is no dispute between parties as to the locus standi of the Plaintiff, and once this is established the burden of proof shifted to the Defendant to prove his right to possession in terms of the Section 172 of the Land Transfer Act."

In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-

"Under Section 172 the person summoned may show cause why he refused to give possession of the land and if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced."

(Emphasis is mine)

Also it is necessary to refer to section 172 of the Land Transfer Act, which states;

"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgage or lessor or he may make any order and impose any terms he may think fit;

Provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:

Provided also that in the case of a lessor against a lessee, if the lessee, before the hearing, pay or tender all rent due and all costs incurred by the lessor, the judge shall dismiss the summons".

[Emphasis provided]

(3) After an in-depth analysis of the totality of the Affidavit evidence in this case, I now summaries my understanding of the salient facts as follows;

(i) The subject land is an agricultural land.

(ii) The land is leased by the Director of Lands to the Plaintiff on 01st January 2004, for a term of 30 years at the yearly rental of $450.00

(iii) The Defendant was let into possession of the property as a caretaker by the Plaintiff in June 2012 and a verbal consent was granted to the Defendant by the Plaintiff to occupy and cultivate the land.

(iv) The Defendant has been in possession, occupation and cultivation of the land since June 2012 and still enjoying the same rights.

(v) The Plaintiff is the last registered proprietor of the land in question and it is conceded by the Defendant.

(vi) The Defendant filed an application for Declaration of Tenancy in the Agricultural Tribunal on 24th February 2015.

(vii) The Defendant's application for relief is still pending before the Agricultural Tribunal.

(4) What is the Defendant's reason refusing to deliver vacant possession?

The Defendant for his part in seeking to show cause against the Summons, adduced two (02) grounds in opposition. They are;

❖ Ground 01, Reference is made to paragraph (03) of the Defendant's Affidavit in Opposition.

Para (3) THAT I deny paragraph 6 of the Plaintiff's Affidavit. That upon the death of the Plaintiff's husband, Plaintiff got remarried to her brother-in-law Kumaran Naidu and planned to migrate. She approached me to buy her land. She told me that she will migrate to Australia with her husband Kumaran Naidu and also promised me that she will sign the Transfer Documents upon receipt of $25,000.00 (TWENTY FIVE THOUSAND DOLLARS) being full purchase price. After three years of my cultivation and occupation of the Land, the Plaintiff called me from Australia and told me that she is divorced by Kumaran Naidu and she does not have place to stay. The Plaintiff than requested me to leave the property and the Plaintiff agreed to refund $19,000.00 (nineteen thousand dollars) but I refused.

❖ Ground 02 Reference is made to paragraph (06) and (07) of the Defendant's Affidavit in Opposition.

Para (6) THAT I have instituted a Agricultural Tribunal Action in Tribunal being case number W/D 05/15 which is coming up on 1st April, 2015. Copy of the Tribunal Action is annexed marked letter "D".

(7) THAT I believe that I have case to answer and hereby pray to the Honourable Court that the Plaintiff's action be put off the list till the final determination of the Tribunal Action number W/D05/15.

(5) My own understanding is that, the proven facts in this case show that the Defendant's interest in the land owned by the Plaintiff stems from his entitlement to a declaration of tenancy under Section 5 (1) of Agricultural Landlord and Tenant Act (which for the sake of brevity I shall hereafter refer to as ALTA).

Therefore, it is necessary to look closely at the provisions of ALTA.

The preamble to the Act says;

"An Ordinance to provide for the relations between landlords and tenants of agricultural holdings and for matters connected therewith."

Section 4 (1) states;

"Where a person is in occupation of and is cultivating an agricultural holding and such occupation and cultivation has continued before or after the commencement of this Ordinance for a period of not less than three years and the landlord has taken no steps to evict him, the onus shall be on the landlord to prove that such occupation was without his consent, and if the landlord fails to satisfy such onus of proof, a tenancy shall be presumed to exist under the provisions of this Ordinance."

Section 5 (1) states;

"A person who maintains that he is a tenant and whose landlord refuses to accept him as such may apply to a tribunal for a declaration that he is a tenant and, if the tribunal makes such a declaration, the tenancy shall be deemed to have commenced when the tenant first occupied the land."

Reading as best, I can between the sections of ALTA, it seems to me, that
Section 4(1) raises a strong presumption in favour of occupiers of Agricultural land who come within the ambit of the section.

Section 5 (1) comes into operation if the landlord refuses to accept the tenant.

The land is leased by the Director of Lands to the Plaintiff on 01st January 2004, for a term of 30 years at the yearly rental of $450.00. The lease is subject to the provisions of the Agricultural Landlord and Tenant (Cap 270) (ALTA) as the land is, and has been, rural and therefore "agricultural land" within the meaning of ALTA.

The Defendant was let into possession of the property as a caretaker by the Plaintiff in June 2012 and a verbal consent was granted to the Defendant by the Plaintiff to occupy and cultivate the land.

The Defendant has been in possession, occupation and cultivation of the land since June 2012 and still enjoying the same rights.

But the Plaintiff had refused to accept him as a tenant as such and in the circumstances he had made an application to the Agricultural Tribunal under section 5 (1) of ALTA

Therefore, what concerns me is that whether in the circumstances and having regard to the nature of the pending application in Agricultural Tribunal and the relief sought in that application, the Plaintiff should be prevented from his right to possession and use of the Land under LTA, until the relief sought in the pending application in the Agricultural Tribunal has been finally determined?

Put another way, whether the Defendant's all rights and protection under ALTA overrides the indefeasibility of Title provisions (Section 39 and 40) of LTA?

The answer to this is in the positive which I base on the Court of Appeal decision in "Soma Raju v BhajanLal" (1976) 22 FLR 163. The Court of Appeal affirm the view that the provisions of ALTA override the provisions of LTA. The conclusion drawn is that the High Court lacks jurisdiction to entertain Section 169 application to evict a tenant who was occupying a piece of ALTA land.

In this Court of Appeal decision, Spring J.A. said at page 174

"Both counsel referred to Miller v Minister of Mines [1963] 1 All E.R. 109 which was a case where a mining licence granted under the Mining Act 1926 was not registrable under the Land Transfer Act and it was held nevertheless to be a burden on the title of the registered proprietor. Their Lordships at p. 113 said:

"It is not necessary in their Lordships' opinion that there should be a direct provision overriding the provisions of the Land Transfer Act, 1952. It is sufficient if this is the proper implication from the terms of the relative statute."

Therefore in my view while [ALTA] provides its own individual code for the registration of contracts of tenancy it does not make it mandatory that such registration should be effected; the rights to occupation of agricultural land under [ALTA] exist in law independently of the Land Transfer Act and in my view prevail against the indefeasibility provisions of the Land Transfer Act. Section 13 of [ALTA] states that subject to the provisions for termination contained in [ALTA]a tenant shall be entitled to be granted two extensions to his contract of tenancy each extension to be for not less than 10 years so long as he has cultivated the land and committed no breach of his tenancy (unless he is given one year's written notice of termination upon the grounds set out in the [Act]). If a contract of tenancy under [ALTA] is not registrable under the Land Transfer Act and the indefeasibility provisions of that Act are to override the contract of tenancy then the tenancy would be of no value to the tenant except as against the original landlord. Upon a transfer of the land the successor would be entitled by virtue of the indefeasibility provisions of the Land Transfer Act to disregard the contract of tenancy. I do not agree that this (could) have been the intention of the legislature in enacting [ALTA] and creating by statute tenancies which can exist for as long as 30 years. In my view I agree with the learned judge when he says:

"I therefore hold that the plaintiff was the lawful tenant of the land and held a tenancy under [ALTA] which prevailed against the plain terms of section 39 and 40 of the Land Transfer Act.

And at page 175;

"I turn now to consider the 5th ground of appeal. Mr Koya argued that when section 3 of the Land Transfer Act 1971 was enacted it had the effects of overriding ALTO; and that the Land Transfer Act being a later Act than ALTO had the effect of annihilating the application of ALTO to lands under the Land Transfer Act; further the intention of the Legislature in passing into law the Land Transfer Act was to strengthen the principle of indefeasibility of title. Section 3 of the Land Transfer Act says:

"3. All written laws, Acts and practice whatsoever so far as inconsistent with this Act shall not apply or be deemed to apply to any land subject to the provisions of this Act or to any estate or interest therein."

Mr Koya argued that section 3 of the Property Law Act 1971 provides that the Property Law Act is not to be reads so as to conflict with either ALTO or the Land Transfer Act 1971. It is to be noted that the Property Law Act became law the same day as the Land Transfer Act and both came into effect on 1st August 1971. If Mr Koya's submission is correct then it would indeed be strange that on the one hand the Legislature should see fit in section 3 of the Property Law Act to recognise ALTO and on the other hand intend that lands under the Land Transfer Act should cease to be subject to ALTO. This would destroy the effect of ALTO – an intention which is diametrically opposed to the Legislature's intention as portrayed in section 3 of the Property Law Act.

Mr Shankar argued that ALTO being special legislation dealing exclusively with agricultural land and passed into law before the Land Transfer Act is not to be derogated from by the general words of section 3 of the Land Transfer Act affecting all land under the Act. HE relies upon the maxim genralia specialibus non derogant. In Barker v Edger [1898] UKLawRpAC 50; [1898] A.C. 748 at p. 754 Lord Hobhouse said:

"The general maxim is "Generalia specialibus non derogant." When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms."

In Seward v The Vera Cruz (1884) 10 A.C. 59 at p.68 Lord Selbourne said:

"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so."

Further, ALTO deals with rights in agricultural land. It creates rights and evidences those rights by contracts of tenancies. On the other hand the Land Transfer Act deals with the registration of interest in land and the priorities conferred by registration – it is a system of registration of interests in land. In Breskvar v. Wall (1971) 126 C.L.R. 376 at p.376 at p.385 Sir Garfield Barwick said:

"The Torrens System of registration is not a system of registration of title but a system of title by registration."

Here it seems that the Legislature in passing ALTO into law directed its attention to agricultural land and had it been the intention of the Legislature that the general terms of the Land Transfer Act which deals with all lands were intended to overrule ALTO then the Legislature could easily have said so."

(Emphasis Added)

A somewhat similar situation as this was considered by the Court of Appeal in "Azmat Ali v Mohammed Jalil& NLTB,(1986) FCA, Civil Appeal 111 of 1985.

At page 12 of the Judgment, the Court of Appeal said;

"A person seeking a declaration of tenancy under ALTA, however, has no contract and, therefore, no right (to sublet) so arising. His right to a tenancy is created not by any agreement but, under section 4 of ALTA, by Parliament itself, the ultimate repository of all power. The tribunal is merely the machinery to give effect to that right. Section 23 (3) requires that it shall declare a tenancy and direct that a contract of tenancy be entered into, but only where it considers it just and reasonable so to do...

When after a hearing the tribunal, the ultimate judge of reasonableness, does make a declaration, the Parliament, in our view, must be taken to have intended that such a declaration of a statutory right be binding upon everyone including the Crown, NLTB or any other holder of title."

(Emphasis Added)

(6) My own understanding is that the above authorities are clear, uniform and conclusive that any application that has to be determined under the LTA is now subject to and affected by the ALTA. Accordingly, I venture to say beyond a per adventure that, the Defendant's application to the Agricultural Tribunal for his entitlement to a declaration of Tenancy under Section 5 (1) of the ALTA act as a Stay in proceedings for vacant possession under LTA. Therefore, I certainly agree with the sentiments which are expressed inferentially in the Defendant's submissions.

(E) CONCLUSION

Having had the benefit of written submissions and as well as arguments from Counsel, for which I am most grateful, and after having perused all the pleadings by the parties, doing my best on the material before me, this court concludes that, the Defendant's application before the Agricultural (Landlord and Tenants) Tribunal for a declaration of Tenancy under Section 5(1) of ALTA act as a stay in proceedings for vacant possession. Accordingly, there is o alternate but to stay the proceedings pending the decision of the Agricultural Tribunal.

I cannot see any other just way to finish the matter than to follow the law.

(F) FINAL ORDERS

1. The application for vacant possession is stayed pending the decision of the Agricultural Tribunal

2. The Plaintiff is granted liberty to activate this application on the application before the Agricultural Tribunal being refused.

3. I make no order as to costs.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
13th November 2015