Prasad v Prasad [2019] FJAGT 1; ND02.2005 (27 August 2019)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE AGRICULTURAL TRIBUNAL
NORTHERN DIVISION AT LABASA

Reference No. ND 02 of 2005

BETWEEN: Ajeshwar Prasad of Kawakawa, Waiqele, Labasa.
Applicant

AND: Durga Prasad of Waiqele, Labasa.
1^st Respondent

AND: iTaukei Land Trust Board a body duly incorporated under the iTaukei Lands
Trust Act of Fiji of Victoria Parade, Suva.

2^nd Respondent

Before: Mr. Jeremaia N. Lewaravu, Resident Magistrate

Date of Hearing: 17^th June, 2019
Date of Decision: 27^th August, 2019

Appearance
Mr. Radio of Legal Aid Commission for the Applicant.
Mr. Raramasi of Maqbool & Co for the 1^st Respondent
Mr. Ratule of iTLTB Legal Division for the 2^nd Respondent

Judgment

1. The Applicant filed an application in this Tribunal on the 11^th of April, 2012 seeking a declaration of tenancy in the land described in iTaukei Lease No. 25692 known as Tudreli being Lot 1 on Plan M 1719 in the Tikina of Wailevu in the Province of Macuata containing an area of 14 acres, 2 roods and 0 perches. Both Respondents are opposing the application have filed Statements of Defence respectively. The substantive application was heard on the 17^th of June, 2019.
   

The Law

2. The applicable provision herein is section 4 and section 5 of Agricultural Land and Tenant Act Cap. 270 of Fiji (herein referred to “ALTA”).
   

Brief Summary of the facts

3. The Applicant stated that he and his family were living at Wailevu around 2007 when he had a conversation with the 1^st Respondent regarding the purchase of the subject property. The 1^st Respondent is the registered leasee of the subject land. The agreement was for the Applicant to work the land and pay the 1^st Respondent later. The said agreement was formalized vide a Sale and Purchase Agreement that was signed at the Office of the 1^st Respondent’s legal counsel. The Applicant entered into occupation and cultivation in 2008 based on the said Agreement.
   
4. The Applicant stated that the purchase price was $38,000.00 with interest of $20,000.00. The condition of the agreement was, should the Applicant fail to pay the purchase price within 7 years as agreed, he was liable under the agreement to pay the interest. The agreement was made subject to the consent of the landlord and the Fiji Sugar Corporation.
   
5. The Applicant worked the land for 5 successive years. He cultivated and harvested the sugar cane. The land rent was paid by way of direct deduction through cane proceeds. After all the deductions and payments, the profits was deposited into the 1^st Respondent’s bank account as payment for the purchase. This was part of the agreement. He filed this application in 2012 and stopped cultivation sometimes in 2013 after he was served with a Notice to vacate the subject property. The Applicant is now working at a grog shop to make ends meet for his family.
   
6. The 1^st Respondent is not disputing the conversation with the Applicant for the Sale of the subject property. He confirmed that the purchase price was $39,000.00 and the parties signed an Agreement. He also confirmed that the Applicant failed to pay the full purchase price. The 1^st Respondent has tendered a copy of an unsigned Agreement as evidence in Court.
   
7. The 1^st Respondent also confirmed that the Applicant is currently occupying the subject holding and was cultivating the subject land until 2013. Furthermore, the 1^st Respondent has confirmed serving a Notice to vacate on the Applicant.
   
8. The 2^nd Respondent opted not to call any witness.

Reasons for the decision

9. In the case of Narayan v Kumari[2018] FJAGT 1, the Court held that:
   

‘section 4 and 5 of the Act deals with two different categories of occupants of agricultural holdings...under section 5(1) a person who maintains that he is a tenant of a particular agricultural holdings can make an application to the Agricultural Tribunal if the landlord refuses to accept him as a tenant. Under section 5(1) there is no presumption in favour of the person who claims to be a tenant. He has to establish before the Tribunal that he is a tenant’.

10. The undisputed evidence of the Applicant was that he entered into occupation and cultivation based on the sale and purchase agreement between the parties. The said sale and purchase agreement is prima facie evidence of an arrangement between the parties contemplated under section 5 of the Act. In that regard, I accept that the Applicant had the express consent of the 1^st Respondent to enter into occupation and cultivation of the subject holding.
    
11. It is clear from the evidence presented that the Applicant was in occupation and cultivating the subject holding. It is also clear from the evidence presented that the Applicant had uninterrupted and independent control of the subject holding for 5 years between 2008 to 2013. It is also evident that the land rent and the purchase price were both deducted from the cane proceeds over the 5 year period.
    
12. Even though, the Applicant entered the subject holding as a purchaser by way of an unlawful sale and purchase agreement. He has presented evidence that for 5 years he was in occupation and cultivating as a tenant of the 1^st Respondent in pursuit of his purchase. I also note that the Notice to Vacate was served after 5 years; as such a presumption of tenancy has arisen. I therefore find under the circumstances that the Applicant is indeed a tenant of the 1^st Respondent under Section 4 and 5 of ALTA. He is therefore entitled to seek protection under ALTA.
    
13. At this juncture, I wish to say that despite the legality of the sale and purchase agreement herein, the same was not a fair agreement. Having read the conditions of the same, I suspect that the 1^st Respondent was setting up the Applicant to fail. I specifically refer to Clause 2 and Clause 16 of the agreement. In that regard, I hold that the sale and purchase agreement is prima facie evidence that the 1^st Respondent is an unscrupulous landlord who has exploited the Applicant. On that basis, I am well within my powers to terminate and/or assign the subject lease under section 18 of ALTA. However, no such application was made by Counsel, I will therefore let the matter rest.
    
14. Notwithstanding the conduct of the 1^st Respondent, the second limb of section 5(1) of ALTA is clear. It provides that:
    

‘If the tribunal makes such a declaration, the tenancy shall be deemed to have commenced when the tenant first occupied the land’.

15. The Applicant entered into occupation and cultivation in 2008. The unsigned copy of the sale and purchase agreement tendered as evidence does indicate that the said document was drafted in 2007. However, the date of signing is not clear and no evidence was led to ascertain the same. In any event, the Applicant has met the threshold in proving his case. In applying the relevant provision under section 5(1), I hold that the Applicant entered into occupation and cultivation on 1^st January, 2008.
    
16. The full Orders of the Court is as follows:
    
    1. The application for tenancy against the 1^st Respondent is hereby granted.
    2. The 2^nd Respondent is hereby ordered under section 23 of ALTA to issue a new instrument of tenancy effective on 1/1/2008 in the subject land described in iTaukei Lease No. 25692 known as Tudreli being Lot 1 on Plan M 1719 in the Tikina of Wailevu in the Province of Macuata containing an area of 14 acres, 2 roods and 0 perches under the provisions of the Act to the Applicant within 3 months of this decision.
    100. Each party to bear own costs.
    4. Appeal within 28 days.

Ordered Accordingly,

............................................................

Jeremaia N. Lewaravu [Mr.]

RESIDENT MAGISTRATE

27^th August, 2019