Fiji Law Reports

Section 12 has been considered by various courts on a number of occasions each involving its own particular set of circumstances. The question for decision in the present case is whethe respondent, as would - be purchaser, retained any rightsights under the agreement when negotiations were terminated in the circumstances outlined above; in particular whether he had a right to damages, or a right to the return of the money he had paid, whether as damages or otherwise. This particular question does not seem to have arisen before.

Reference to some of the cases is necessary. Chalmers rdoe [160;[1963] 3 All E.R. as awas a case in which by a "friendly arrangement" wie owner of native leasehold land the appellant built a house on part of that land and enterentered into possession. No consent of the Natind Trust Board was obtainedained. The Privy Council considered the transaction as a sublease but even regarding it as a licence to occupy coupled with possession, their Lordships held that it was a "dealing" within the meaning of section 12 and consequently unlawful. They referred, however, to the fact that in Harnagh and Bakshish Sinh Singh v. Bawa Singh (1958) 6 F.L.R. 31, the Fiji Cof Aphad said that it t it would be an absurdity to say that a mere agreement to deal with land land would contravene section 12, for there must necessarily
<sup>In i Kisingh ingh v. Sumintra ( 16 F.L.R. 165, this courtcourt relied upon that aspect of the judgment in Chalmers v. Pardoe#160;t160;to whicave jeferrd held that an agreement for the sale oale of a nf a native lease, under which the purchasechaser had, on his own showing, taken overession and control for a number of years, had passed the sthe stage at which it could be called a permissible agreement and had become unlawful as a "dealing" contrary to section 12.

I not sought in that caat case to say exactly at what point an agreement, lawful when made, becomes unlawful, but I have no doubt, on the facts as found and outlined above, that the present agrt never reached the latter tter stage and it was never intended that it should do so. The payments of $2 on signature and $2000 the following day were obviously by way of deposit; completion was to be after fourteen days and possession was not taken, even when the date for completion had passed. It was a straight forward dealing pursuant to which the parties intended, after satisfying the requirements of the law, to effect the transfer of the native lease. I accept therefore, that the agreement was lawful and. remained so right up to the time it was repudiated by the appellant company; up to that time the consent of the Native Land Trust Board could have been applied for without any impropriety, and given or refused.

Be difficult question rion remains whether it was binding, pending the consent of the Native Land Trust Board or whether the lawfulness depended on its remainingerative so that either party could repudiate it at will. Ifl. If it was binding then, on the principles laid down in Day v. Ston [180;[1899] UKLawRpCh 111; [1899] 2 Ch. 320 an0;<160;Braybrooks v. Whaley [1919] 1 K.B. 435, cited to the court by Mr. Stuartwas upon the appellant company to apply for the consent, and on its failure to do so and rend repudiation of the agreement, the respondentd have been entitled to full damages.

At firstfirst sighseemsseems to be a reasonable and straight forward solution to say that, as no stage of illegality had been reached before repudiation took place the parties could rely upon the agreement as rting their legal rights. Its. It is only with reluctance that I have concluded that this would be to draw more from the inference based upon Chalmers v. Pard> (160;(supra) which I have suggested above, than is justifiable. True, the judgment implicitly approved the statement that there must of necessity be some prior agreement in all such cases. But, though the Privy Council didquote this part of the judg judgment in Harnam Singh's&#1se,case, that judgment went on to say that such an agreement would be inoperative until such consent had been given. The Privy Council cannot therefore be taken as saying that a binding and enable agreement would be lawe lawful. Having regard to the wording of section 12, "it shall not be lawful, for any lessee . . . to alienate or deal with the land . . . whether by sale, transfer or sublease or in any other manner whatsoever". I am impelled to the conclusion that an operative agreement for sale must be a contravention of the section. Such an agreement creates an interest in land in the purchaser and must therefore amount to a dealing in land.

For these rs, if the prhe present agreement is to be regarded as lawful it must be accepted that, so far as it touches the land at least, it was not in operation. That is o say that the respondent could not have proceeded against inst the appellant for the enforcement of the implied promise to apply for the consent of the Native Land Trust Board. There was a strong suggestion in the judgment in Chalmers v. Pardoe (sut p. 556) that the appelappellant in that case could have taken such a course. That would be in my view, an action to enforcolla promise which did not of itself create any interest or constitute a dealing in l in land eand even though its success would probably result in the bringing into effect of the agreement as a whole. The respondent did not, in the present case take action along those lines.

On the as a whole I havI have reached the conclusion (although as I have already said, with some reluctance) that no action for damages for breach of contract was available to the respondent and that the trial judge erred in including in his judgment, damages for loss of the respondent's bargain. In relation to the moneys paid, however, there being no illegality, the respondent is entitled to restitutio in int and ther therefore to retain his judgment for $2,285 and costs. That sum includes an amount of $283 for interest which I consider the trial judge had a discretion to allow underLaw R (Misneous Pous Provisrovisions) (Death and Interest) Ordinance ance (Cap. 20) on the basis that the appellant company had had the use of the money, which should in equity be treated as a debt.

I would therefore allow the appeal to the extent of reducing the amount of the judgment in the Supreme Court to $2,285 and costs. Although that represents a certain measure of success forappellant company I think the circumstances are such that that there should be no order for costs on the appeal. As all members of the court are of the same opinion there will be orders in the terms I have mentioned.

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I had the advantage of e of reading the full and careful judgment of the learned Vice President, and do not find it necessaryecapie the facts as set out in that judgment. With regh regard to the submission that the responespondent had actually taken possession of the land concerned I agree with the learned Vice President, confirming the finding of the trial Judge, that the acts performed by the respondent with regard to the land did not amount to an entry into possession. Accordingly there had been no part performance of the agreement.

It is I think relevant to consider the respective dates upon which certain parts of the transaction took place. The original sale and purchase agreement between the parties was signed on the 18th August, 1968. A transferether with an application fion form for the consent of the Native Land Trust Board, was sent by respondent's solicitors to appellant's solicitors for signature on 2nd September, 1968. Further correspondence, and abortive negotiations, followed; and the writ in this present action was issued on 7th February, 1969. The sale from appellant to Weaver took place late in 1969; the precise date does not appear from the evidence, but application for the Board’s consent was lodged on the 25th October, 1969 and granted on the 5th November, 1969. At no time, during a period of over twelve months, did the respondent apply for the consent of the Native Land Trust Board.

It will be convenient at this stage to point out, that it was competent for the respondent himself to apply for consent. It is true that: in Chalmersardoe (160;(1963) 3 All E.R.theirtheir Lordships o Privy Council said at page page 554:-</sup>