High Court of Fiji

(3) Where the landlord has notice of a mortgage or charge affecting the land the subject of the tenancy the landlord shall serve upon the mortgage or chargee, as the case may be, a copy of any notice served upon the tenant in accordance with the provisions of subsection (1).

(4) For the purposes of sub-paragraph (i) of paragraph (b) of subsection (1) the expression "subdivide" has the same meaning as in the Subdivision of Land Act.

(5) All applications for relief against forfeiture which may be made under the provisions of any Act shall be made to the tribunal, and for this purpose, the tribunal shall possess all the powers and jurisdiction of the court to which such application may be made under the provisions of such Act.

(6) For the purpose of avoiding doubt, it is hereby declared that on the termination of a contract of tenancy any tenancy made or granted by the tenant prior to such termination shall be deemed to terminate at the same time.”

“61.-(1) The proceedings, hearing, determination, award, certificates or orders of the central agricultural tribunal or of a tribunal shall not be called in question in any court of law nor shall any person appointed as the central cultural tribunal or as a tribunal be sued in respect of any act lawfully done or lawfully ordered to be done in the discharge of his duties under this Act.

(2) Any person who is bound to execute or serve the lawful awards, orders or certificates of the central agricultural tribunal or of a tribunal shall not be liable to be sued in any court of law for any act lawfully done in the execution or service of such awards, orders or certificates.”

29. Before this Court proceeds any further it is prudent to consider Section 61 of ALTA.
    
30. The section and those similar to that have been subject to much litigation.
    
31. The Applicant relies on the case of Pioneer Aggregates v. Secretary of State (1984) 2 ALL ER 358.
    
32. In Anisminic (Supra) the Appellant was a British Company which owned mining property in Egypt worth more than £4,000,000.00. Due to Israel-Egypt hostilities property owned by Appellant and other British nationals in Egypt were sequestrated by Egyptian Government.
    

Soon after sequestration Appellant sold its property to T.E.D.O., and Egyptian Company but reserved its right to compensation they may be entitled to against any Government authority excluding Egyptian Government.

Under treaty respective governments agreed that compensation be paid to British government and those whose properties were listed could claim compensation. The application had to be made to Foreign Compensation Commission. Section 4(4) of the Foreign Compensation Act provided as follows:-

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”

The Commission made a provisional determination that Appellant was not entitled to compensation on the grounds that its successor was not a British Company.

The Appellant challenged the Commission’s decision, and it was ruled that Commission’s provisional determination was made without or, in excess of jurisdiction and as such was a nullity.

The Commission’s appeal to Court of Appeal was upheld. The Appellant then appealed to the House of Lords which appeal was allowed.

33. In Anisminic (Supra) Lord Pearce at page 237 (paragraphs F to I) and page 238 (paragraphs A to C) stated as follows:-
    

“It has been argued that your Lordships should construe “determination” as meaning anything which is on its face a determination of the commission including even a purported determination which has no jurisdiction. It would seem that, on such an argument, the court must accept and could not even enquire whether a purported determination was a forged or inaccurate order which did not represent that which the commission had really decided. Moreover, it would mean that, however far the commission ranged outside their jurisdiction or that which they were required to do or however far they departed from natural justice, their determination could not be questioned. A more reasonable and logical construction is that by “determination” Parliament meant a real determination, not a purported determination. On the assumption, however, that either meaning is a possible construction and that, therefore, the word “determination” is ambiguous, the latter meaning would accord with a long established line of cases which adopted that construction. One must assume that Parliament in 1950 had cognizance of these in adopting the words used in s.4(4).

In 1829 in Campbell v. Brown (77), this House upheld a decision of the Lord Ordinary (Lord Alloway) that although by the statute 43 Geo. 3 c. 54, s. 21, the judgment of the presbytery is declared to be final without appeal or review by the court, civil or ecclesiastical, yet if the proceedings on which judgment was pronounced were contrary to law or if that court exceeded the powers committed to it by statute, they may be reversed and set aside by the court.

Lord Lyndhurst, L.C., in dealing with the argument that the court’s power was ousted by the statute, said (78):

“But I apprehend that (particularly from the circumstances of the appeal being taken away) a jurisdiction is given in this case to the Court of Session, not to review the judgment on its merits but to take care that the Court of Presbytery shall keep within the line of its duty and conform to the provisions of the Act of Parliament. There is in the Court of Session in Scotland that superintending authority over inferior jurisdictions which is requisite in all countries, for the purpose of confining those inferior jurisdictions within the bounds of their duty; and the only question here is whether this case is of such a nature and description as to justify the calling into action that authority of the Superior Court. Cases were cited at the Bar and mentioned in the printed papers now on your Lordships’ table in which the Court of Session has exercised a superintending authority over inferior jurisdictions when they have been guilty of excess of their jurisdiction or have acted inconsistently with the authority with which they were invested.”

34. Lord Wilberforce at page 247 (paragraphs E to H) stated as follows:-
    

“This shows very clearly that, as and when machinery should be set up enabling the commission to deal with compensation under future agreements, this should be within fixed and determined limits which the legislature itself would lay down; thus Parliament might (under s. 2 (2) (a)) define qualified persons and impose conditions, and (under s. 2 (2) (b)) prescribe matters to be established to the commission’s satisfaction. There could be no doubt that if, so far as such power was exercised, and such definitions, conditions and prescribed matters were laid down, these would be architectural directions binding the commission, so that if they departed from them, they would be acting beyond their powers. Moreover, when one compares the terminology of s. 4 (4)-“The determination by the Commission of any application made to them under Act ...”-with that of s.3 (b)-“the determination of ...claims...” -and appreciates that the power to determine claims is to be subject to such limits (as to definitions, conditions or prescribed matters) as might be approved by Parliament, the conclusion must follow that the preclusive clause can have no application except to a determination made within the limits, whatever they turn out to be, fixed by Parliament. The respondents’ argument that they have only to make a self-styled “determination” in order to enjoy automatic protection is thus at once seen to be unsustainable.”

35. Lord Pearson at page 250 (paragraph D, E) stated as follows:-
    

“I agree with what they have said and have nothing to add. I agree with them also that what has been called the “ouster provision” in s. 4 (4) of the Foreign Compensation Act 1950, does not exclude the court’s intervention in a case where there is a merely purported determination given in excess of jurisdiction. Also in relation to the present case I would join with my noble and learned friends to this extent, that, if the appellants’ contentions as to the true construction of the relevant Order in Council are upheld, it must follow that the commission have acted in excess of jurisdiction and the court should intervene in the exercise of its supervisory function.”

36. InPadfield& Ors. v. Minister of Agriculture, Fisheries and Food and Others [1968] UKHL 1; (1968) 1 ALL ER 694; the Appellants being members of south east regional committee of Milk Marketing Board made a complaint to the Minister pursuant to provision of Agricultural Marketing Act 1958 about the price of milk sold to the Board by south east region producers and for the Minister to refer the complaint to the committee of investigation established under the Act. The Minister declined to refer the complaint to the investigation committee in exercise of his unfettered discretion.
    

Lord Hudson at page 710 (paragraphs A to D) stated as follows:

“If the Minister has a complete discretion under the Act of 1958, as n my opinion he has, the only question remaining is whether he has exercised it lawfully. It is on this issue that much difference of judicial opinion has emerged, although there is no divergence of opinion on the relevant law. As Lord Denning, M. R., said, citing Lord Greeene, M. R., in Associated Provincial Picture Houses, Ltd. v. WednesburyCorpn. (14):

“a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider.”

In another part of this judgment Lord Greene drew attention (15) to that which I have mentioned above, namely, the necessity to have regard to matters to which the statute conferring the discretion shows that the authority exercising the discretion ought to have regard. The authority must not, as it has been said, allow itself to be influenced by something extraneous and extra-judicial which ought not to have affected its decision.”

Lord Upjohn at page 717 (paragraph F) stated as follows:

“I adopt the classification of Lord Parker, C.J., in the divisional court:

(a) by an outright refusal to consider the relevant matter, or

(b) by misdirecting himself in point of law, or

(c) by taking into account some wholly irrelevant or extraneous consideration, or

(d) by wholly omitting to take into account a relevant consideration?”

37. In Re Azmat Ali [1986] 32 FLR 30 the 1^st Respondent leased 194 acres of native land from Native Land Trust Board (now known as iTaukei Land Trust Board (“NLTB”). The 1^st Respondent entered into an Agreement with Appellant whereby Appellant was to cultivate twenty-five (25) acres of subject land for ten (10) years.
    

The 1^st Respondentattempted to terminatethe Agreement and evict the Appellant which resulted in the Appellant seeking declaration of tenancy under ALTA.

NLTB’s position was that it was not aware about the Agreement between the Appellant and the 1^st Respondent.

The AT made an Order declaring tenancy in favour of the Appellant over twenty-five (25) acres of the subject land and ordered NLTB to issue Instrument of Tenancy in favour of the Appellant.

1^st Respondent’s appeal to CAT was dismissed.

1^st Respondent then applied for review of AT and CAT’s decision by High Court.

His Lordship Justice Dyke (as he then was) in the High Court proceedings in relation to s61 of ALTA stated as follows:-

“But clauses such as this have never deterred the courts from entertaining actions for judicial review of tribunal proceedings or decisions where there has been excess of jurisdiction or where there has been a breach of natural justice. The decision itself cannot be appealed against and in case tribunals have powers not possessed by the courts, including powers to assign land which is the subject of an unlawful tenancy (see section 18(2)), but the proceedings can be quashed and the case sent back for hearing.”

His Lordship further went to state that:

“There can be no question that in England the High Court has powers of review over all inferior courts or tribunals, and there is no tribunal that is not inferior to the High Court and no court that is not inferior except the Court of Appeal and the House of Lords.

Similarly there can be no question that in Fiji both the agricultural tribunals and the central agricultural tribunal are inferior to the Supreme Court.

It is to be noted that the powers of tribunals and the central agricultural tribunal are by section 18 of ALTA stated to be those exercise by magistrate’s courts, and there is no power given for enforcing awards or decisions of tribunals except in so far as this is covered by section 57 of the Act and by reference to the courts.”

His Lordship went on to state that since the tenancy declared by AT was in relation to iTaukei land it should have been subject to consent of NLTB.

The Appellant appealed to Fiji Court of Appeal. The Court of Appeal upheld the High Court’s view in respect to s61 (1) of ALTA but allowed the appeal on the ground that declaration of tenancy by AT under ALTA does not have to be subject to NLTB’s consent.

38. InSingh v. Udit [2006] Civil Appeal No. ABU0091U 2005S (24 November 2006) (High Court Civil Action NO. 7 of 2004S), one Santa Singh was registered proprietor of 177 acres of freehold land and when he died his wife Parvati was appointed Executrix and Trustee of his Estate.
    

The Appellant,Sarban Singh became registered proprietor of one undivided third share of the subject land as beneficiary subject to transfer dated 8 November 1966. On 1 March 1975, Parvati as Executrix and Trustee executed a lease over the Estate land in favour of the Respondent for twenty (20) years at annual rental of $300.00. Parvati and the Appellant informed the Respondent that his lease will not be extended beyond 1995.

The Respondent then sought declaration of tenancy from AT. The Appellant in AT submitted that when Parvati entered into the lease agreement with the Respondent for twenty years she breached section 23(1)(e)(ii) of the Trustees Act Cap. 66 which provided that the Trustee may grant a lease over the Estate land for any term not exceeding ten (10) years and therefore the lease Agreement was illegal and void. The Lease granted by Parvati to Respondent was for twenty (20) years.

AT refused to extend the tenancy on the ground that the lease agreement was illegal and void because it breached s23(1)(e)(ii) of Trustees Act. The appeal to CAT was dismissed for same reason.

The Respondent then filed proceeding in High Court.

The High Court held that breach of s23(1)(e)(ii) which is an enforcing provision does not make the lease illegal or void, which decision was upheld by Fiji Court of Appeal.

In respect to s61(1) of ALTA the Fiji Court of Appeal stated as follows:-

“We with respect agree with Jiten Singh J that the two Tribunals made an error of law in rejecting Ram Udit’s application on the ground of illegality through contravention of s.23(1) of the Trustee Act, or s.59 of ALTA read with s.23(1)(e)(ii) of the Trustee Act. That error was central to the rejection in those Tribunals of Ram Udit’s applications to them, and certiorari is therefore available in respect of it; see Re Azmat Ali (1986) 32 FLR 30, at 41, in which a declaration issued to the Central Agricultural Tribunal from the Court of Appeal.”

39. The Court of Appeal in respect to Anisminic case stated as follows:-
    

“The impact of a clause in precisely this form, so far as material, was considered and determined by the House of Lords in Anisminic Ltd. v Foreign Compensation Commission [1968] UKHL 6; 1969] 2 AC, 147. The efhe effect of it, briefly stated is that exclusionary provisions like(1) do not extend to protecting an error of law that affects the jurisdiction of a tribunalbunal to make the determination it did. In this instance, the result of the error of law about the illegality of the lease, which was committed by both tribunals, was to induce them wrongly to refuse jurisdiction to hear Ram Udit’s application. It was not merely an error committed in the course of validly exercising their undoubted jurisdiction to hear and determine matters committed to them by ALTA, but a rejection altogether, and for a reason erroneous in law, to perform that duty.”