IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Case No.: HBA 05 of 2016

BETWEEN	:	SAMISONI WALETU trading as James Internet of Soasoa, Labasa, 				Businessman.
PLAINTIFF/APPELLANT

AND		:	JAI CHAND of Tadra Road, Votualevu, Nadi, former manager of Labasa 				Branch of the Farmer’s Supermarket.

	FIRST DEFENDANT/RESPONDENT

AND              :	THE FARMER’S SUPERMARKET LTD a limited liability company 	with its registered office at the office of Price Waterhouse Coopers, 52 	Narara Parade, Lautoka.

	SECOND DEFENDANT/RESPONDENT

Appearance		:	 Plaintiff-Appellant In Person	
				Mr. A. Sen for 1st and 2nd Defendant/Respondents
Date of Judgment 	:	14th June, 2018	

JUDGMENT
INTRODUCTION
1.	This is an appeal from the decision of Resident Magistrate delivered on 6th October, 2016 where the claim of the Plaintiff was dismissed. The Appellant’s (Plaintiff’s) claim is based on value of his items that were seized by 2nd Respondent-2nd Defendant (2nd Defendant), where 1st Respondent (1st Defendant) was the Manager at that time. The Plaintiff admittedly, operated an Internet Café in the premises of 2nd Defendant on payment of rent. The agreement for renting the premises did not obtain consent of the Director of Lands, but payments were accepted and Plaintiff was allowed to operate an Internet Café. Without any notice the said premises was closed by the Defendants, where Plaintiff’s goods, including computers, printers etc. inside the said premises. In the statement of defence filed through a firm of  solicitors, both Defendants had admitted that Plaintiff maintained an Internet Café in their premises upon payment of rentals and had also admitted inter alia, that said Internet Café had 5 second hand desktop computers, 2 second hand printers, 1 Panasonic ceiling fan, one water heater, A4 papers, and Carpets. There was no evidence of Plaintiff handing over of the premises to the Defendants or taking his goods away on or before closure of 2nd defendant’s business in said premises. The Plaintiff gave evidence and for the Defendants a person by the name of Sachin Kumar Naidu gave evidence but he failed to state his knowledge about the alleged closure of the premises of 2nd Defendant. From the Plaintiff’s evidence it is proved that Plaintiff’s internet café premises was not accessible after the closure of the Defendants’ super market in the same building. In the statement of defence both Defendants had admitted that they had closed their business in the said premised in or around February, 2010. In the court below learned Resident Magistrate dismissed the action. The action was dismissed on the failure to produce a written contract between parties. Having aggrieved by that decision of court below, Appellant-Plaintiff (the Plaintiff) appealed.

FACTS
2.	The learned Resident Magistrate in his decision delivered on 6th October, 2016 had dismissed the action without costs. 

3.	Having aggrieved the Appellant-Plaintiff (the Plaintiff) who appeared in person filed notice of intension on 14th October, 2016 and had also filed Grounds of Appeal on 1st November, 2016.

4.	I do not wish to reproduce the grounds of appeal which were prepared by the Plaintiff. 

5.	Following facts are admitted
a.	The Plaintiff was all time material to the case was a businessman trading as James 	Internet.
b.	1st Defendant was all material times the manager of the Labasa Branch of the 	Second Defendant, which had their shop at Jaduram Street in Labasa on a 	building owned by Waiqele Sawmill Limited on land covered by Crown Lease 	CL No. 13817.
c.	2nd Defendant was registered on 28th August 1986 as Rajendra Prasad Limited 	and changed its name to the Framers Supermarket on 30th July, 2006.
d.	On 1st September, 2009 the Plaintiff and 1st Defendant acting as an employee or 	agent of the 2nd Defendant for the Plaintiff to ‘rent’ Flat 2 of the said building for 	business purpose. 
e.	The said agreement was entered without the consent of the Director of Lands 	hence illegal.
f.	In September, 2009 Plaintiff paid an agreed sum to Defendant and commenced 	the internet café James Internet on Flat 2.

6.	 In the Plaintiff’s evidence he said that his items for internet café was inside the premises on or around February, 2010 the Plaintiff was prevented from entering the premises as the 2nd Defendant’s operation in Labasa terminated and another entity had taken over the said business. According to the Plaintiff his office equipment for internet café was not returned to him, though he had attended several meetings with the Defendants, to recover them. The Plaintiff also said that his office equipment and also his documentations that were inside the premises including accounting books were removed by the 2nd Defendant and or its staff.

7.	The Plaintiff had indicated the reason he could not produce documentary evidence and that was also due to the action of the Defendants. So, the Plaintiff was prevented from producing all his documentary evidence to prove purchase price due to the loss of accounting books and other documentation that were kept in the said premises due to the actions of the Defendants. 

8.	According to the statement of defence there are certain admitted office equipment that were inside the premises. Evidence for the Defendants was that there was no consent of Director of Lands for Plaintiff’s occupation. He said there was no agreement of tenancy.

Decision of the Court below
9.	Learned Resident Magistrate in his analysis, held that there was no written agreement produced by the Plaintiff at trial. The learned Resident Magistrate dismissed the action, on the basis of failure to produce a contract between the parties. 

10.	The Plaintiff appealed against the said decision. An appeal is a re-hearing of the matter on documents, evidence produced in court below.

11.	In the submissions of the Plaintiff he had stated that one of his witnesses was not allowed to give evidence, but I perused the case record and could not find any evidence to that effect or hand written evidence of the proceedings on the date of hearing.

ANALYSIS
12.	The claim of the Plaintiff as contained in the statement of claim is for unjust enrichment (see paragraph 12 of the statement of claim). It is not based on any payments made or received under a written or unwritten contract, but loss of his property of the internet cafe. So there is no need to produce a written agreement between the parties. Admittedly, the agreement between the parties was not consented by the Director of land hence a null and void contract. So, even if the Plaintiff produced such a document it is a null and void in law.

13.	Statement of Defence had admitted the purported agreement between the Plaintiff and 	Defendant. (See paragraphs 1 and 2 of the statement of defence where paragraphs 	1, 2, 3, 	5 and 6 of Statement of Claim are admitted)

14.	The said agreement between the Plaintiff and the Defendants is null and void, in terms of 	Section 13 of State Lands Act 1945, as nether party had obtained consent of the director 	of land. Only the counterclaim is based on that contract. The counter claim was denied by 	a reply filed on 20.3.2013. The counter claim was not pursued at the hearing and court 	below did not deal with that issue and no appeal was made by the Defendants.

15.	The rights derived from that agreement cannot be claimed in a court of law as it is null 	and void, as they are based on null and void agreement, but the claim of the Plaintiff was 	not based on it.

16.	The status of the agreement between the Plaintiff and Defendants will not prevent the 	Plaintiff from claiming under unjust enrichment, for unlawful seizure of his office 	equipment or not returning his items when the operations of the Defendant ceased in the 	said premises where part was occupied by the Plaintiff’s internet cafe. 
17.	It is admitted that the Plaintiff had an internet café in the part of 2nd Defendant’s premises 	and certain office equipment were there. The Defendant had admitted the items inside 	the premises as contained in paragraph 5 of the statement of defence. There is no 	evidence of Plaintiff taking his items away from the premises or handing over of the 	premises to the Defendants.

18.	Plaintiff in his evidence had stated that his office equipment were taken out by the 	Defendants when they ceased operations in that location. There is no evidence of Plaintiff 	vacating internet café before closure of business by 2nd Defendant in the location.

19.	So, there is evidence on balance of probability that the items including office equipment 	of the Plaintiff were lost due to the actions of the Defendants. 

20.	The Plaintiff is claiming for wrongful seizure of his office equipment and other items 	that were in his internet café. 

21.	The person who gave evidence for the Defence was not aware of the facts of this case and 	he did not indicate how he could give evidence for the Defendants. He was a manager of 	Shop N Save supermarket which commenced operation around December 2010 in the 	premises after closure of 2nd Defendant’s business on February 2010. There was a time 	gap of 10 months and what happened to items of that were on said premises was not 	revealed. So the Plaintiff’s evidence regarding loss of his office equipment and also other 	documents such as accounting books etc, inside the internet café on balance of 	probability is not contradicted or disproved by Defendants’ evidence.

22.	There is no need to prove exact amount of loss on a claim based on unjust enrichment as 	it is not calculated as special damages to the Plaintiff as in the case of negligence/tort.

23.	Unjust enrichment is a claim based on equity. The issue is whether he could claim in 	equity when he had violated Section 13 of State Lands Act 1945, but the claim is 	unlawful removal of items of said internet cafe.

24.	In this instance admittedly Plaintiff was operating an internet café in Defendant’s 	premises and both parties knew about the legal status due to non-compliance of Section 	13 of Crown Lands Act.

25.	The essential rationale of the illegality doctrine is that it would be contrary to the public 	interest to enforce a claim is to do so would be harmful to the integrity of the legal 	system’ . The Plaintiff’s claim is not based on contract that is null and void, but the 	wrongful seizure of his items, after he went in to occupation in the Defendant’s premises.  

26.	If the claim of the Plaintiff is rejected for illegality, the conduct of the Defendants which 	is the deprivation of the Plaintiff’s property through and unlawful means will be held not 	subject to civil claim. This will be contrary to the public policy.

27. 	If the claim of the Plaintiff is rejected on the basis of the contract which is null and void, 	that will encourage taking away and deprive any person who is occupying a state land 	without the consent of Director of Lands even without a notice. This is against the policy 	behind Section 13 of State Lands Act, 1945.

28. 	Patel v Mirza [2017] 191 at 220 (Per Lord Toulson) after analysing number of authorities 	held,
		It is not a matter which can be determined mechanistically. So how is the court to 	determine the matter if not by some mechanistic process? In answer to that question 	I would say that one cannot judge whether allowing a claim which is in some way 	tainted by illegality would be contrary to the public interest, because it would be 	harmful to the integrity of the legal system, without (a) considering the underlying 	purpose of the prohibition which has been transgressed, (b) considering conversely 	any other relevant public policies which may be rendered ineffective or less effective 	by denial of the claim, and (c) keeping in mind the possibility of overkill unless the 	law is applied with a due sense of proportionality. We are, after all, in the area of 	public policy. That trio of necessary considerations can be found in the case law. 	(Underlining added).

29.	In Saunders v Edwards [1987] 2 All ER 651 at 665-666 Bingham LJ held
‘Where issues of illegality are raised, the court have (as it seems to me) to steer a 	middle 	court between two unacceptable positions. On the one hand it is unacceptable that any court of law should adit to lend its authority to a party seeking to pursue or enforce and object or agreement which the law prohibits. On the other hand it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct’

30.	The Plaintiff’s claim is based on loss of his items that he used for internet café. The loss of them is not relied on null and void agreement to rent the premises though he commenced occupation on the said agreement (see Bowmakers Ltd v Barnet Instruments Ltd (1944) 2All ER 5679).

31.	Considering the policy behind the requirement to obtain consent of the Director of Lands for dealing on State Land, is not to prevent all the civil remedies for Plaintiff, specially when his goods were illegally taken away. There was not even, any notice of the closure of the business of 2nd Defendant in the said premises to the Plaintiff, and the evidence of the witness that gave evidence for Defendants did not give evidence regarding the closure of 2nd Defendant’s business and what happened to the goods of the internet cafe of the Plaintiff.

32.	The court should not condone such illegal activity as taking away property belonging to a person, though the agreement entered to grant occupation is null and void in law. The law of equity will compensate under unjust enrichment despite the nullity of the contract between the parties, as claims is not inextricably linked to their non-compliance of Section 13 of State Lands Act 1945 (see Bilta (UK) Ltd (in liq) v Naziz [2015] 2 All ER 1083, [2016] AC1).

33.	The Plaintiff did not rely on the null and void contract for his claim. (See Singh v Ali 	(1960) 1 All ER 269, Patel v Mirza (2017) 1 All ER 191 at 254 (Per Sumption LJ).
 	
34.	It should also be noteworthy the position of illegality in Australia in Nelson v Nelson 	[1995] HCA 25 where the High Court in Australia by majority, had granted relief in 	equity 	despite there being illegality of the Plaintiff’s conduct. In that case the transfer of 	property to children was done in order to conceal ownership, but the High Court in 	Australia held that claim for equity can be granted.

35.	So, in my judgment the Plaintiff is entitled to relief under unjust enrichment by removing the Plaintiff’s items that were on the premises when they terminated operations in the said location. The position of the Plaintiff is not directly a claim on the contract which is null and void in law. The claim for unjust enrichment is not based on the illegal contract, but on subsequent conduct after occupation. (See Tinsley v Milligan [1993] 3All ER 65).

36.	There were admission of at least 5 computers, 2 printers, carpets, a 	fan, text books, paper 	etc. in the internet cafe  of the Plaintiff and there is no evidence of removal of any item 	by the Plaintiff before the closure. The Plaintiff had not vacated the premises voluntarily. 	He was not even asked to do so. Considering the items that were inside, an award of 	$7,000 is awarded for unjust enrichment by the Defendants. The cost of litigation in this 	court and court below is summarily assessed at $1,000. The Plaintiff had initially 	engaged a lawyer but 	later had appeared in person.

37.	The judgment of the court below is set aside. The appeal is allowed. The Plaintiff is 	granted compensation for unjust enrichment in a sum of $7,000 against the Defendants.

FINAL ORDERS
a.	The appeal is allowed.
b.	The Appellant-Plaintiff is awarded a sum of $7,000 to be paid by Defendants.
c.	The cost is summarily assessed at $1,000 as cost in this court and court below

Dated at Suva this 14th day of June, 2018

							………………………………..
							Justice Deepthi Amaratunga
							High Court, Suva