Bibi v Khalik [2021] FJAGT 2; WD010.2021 (1 October 2021)

0IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE AGRICULTURAL TRIBUNAL
WESTERN DIVISION AT LAUTOKA

Reference No. WD No.010 of 2021

BETWEEN: Najmina Bibi of Korovou, Tavua, Domestic Duties

Applicant
AND: Mohammed Khalik of Korovou, Tavua, Businessman

1^st Respondent

AND: Farzand Ali of New Zealand

2^nd Respondent

AND: Director of Lands of Tavewa Avenue, Lautoka

3^rd Respondent

AND: Attorney General of Fiji of Level 1, Tavaiqia House, Tavewa Avenue, Lautoka

4^th Respondent

Before: the Resident Magistrate – Mr. Jeremaia N. Lewaravu
Date of Hearing: 12^th August, 2021
Date of Judgment: 1^st October, 2021

Appearance
Messers Niudamu Lawyers for the Applicant
Jiten Reddy Lawyers for the 1^st Respondent
No Appearance for 2^nd Respondent
Non Appearance for the 3^rd and 4^th Respondents

Judgment

1. The Applicant filed an application for maintaining the status quo along with a supporting affidavit on the 20^th of July, 2021. The 1^st Respondent is opposing the application and has filed an Affidavit in Opposition on the 20^th of August, 2021. The Applicant has opted not to file an Affidavit in Reply. However, I note that her written submissions addressed the issues raised by the 1^st Respondent. The other Respondents have not taken any active part in these proceedings.
   
2. At the outset, I wish to point out that the annexures in the Applicant’s Affidavit is not properly marked. Counsels have a duty to the Court to properly mark annexures. In light of the Practice Direction issued in response to the Covid 19 pandemic, both parties have filed written submissions herein. The judgment herein is based on all the documents filed.
   

The Law

3. Regulation 13 of the ALTA Tribunal Procedure Regulation provides that:
   

‘the tribunal may make any order which it considers necessary for doing justice whether such order has been expressly requested by the person entitled to the benefit of the order or not’.

4. Section 22(j) empowers this Tribunal to exercise any power or duty.
   

Legal Matrix

5. Both parties herein seem to be under the mistaken belief that the current application is for interim injunction. I wish to emphasize that this Tribunal has no jurisdiction to deal with injunctions. On the other hand, this Tribunal is empowered to deal with applications for maintaining the status quo of any agricultural land in Fiji. As such, any reference by the parties herein to the question of injunction or interim injunctions is hereby struck out forthwith.
   
6. At the outset, the relevant question to ask is whether the Applicant has any interest and/or rights in the subject land? I ask this question given that a ‘Contract of Tenancy’ means any contract express or implied or presumed to exist under the provisions of this Act that creates a tenancy in respect of agricultural land or any transaction that creates a right to cultivate or use any agricultural land. It is therefore important to consider the Applicant’s background, in particular, how she came to be on the subject land.
   
7. The Applicant said that she was brought to the subject land by the late Mr. Maher Ali who was her defacto husband of 8 years. I also gather from the pleadings that the main thrust of the Applicant’s case revolves around her relationship with the late Mr. Maher Ali who made certain promises that ‘no one was going to evict her from the land’. It is therefore prudent to consider whether the late Mr. Maher Ali had any interest or rights in the subject land?
   
8. I have scrutinized all the documents filed herein and find no documentary evidence to support the claim that the late Mr. Maher Ali had any interest and/or rights to the subject land in question. The only connection that the late Mr. Maher Ali had with the subject land was through his son, the 3^rd Respondent who had an unlawful/illegal agreement with the 1^st Respondent to build a house on the subject land which I understand to be the house currently occupied by the Applicant. The equitable ‘nemo dat quod non habet’ rule meaning ‘you cannot give a better title that the one you have yourself’ is applicable under the circumstances. In essence, the late Mr. Maher Ali did not have any interest and/or rights in the subject land to give to the Applicant. The Applicant cannot therefore rely on the late Mr. Maher Ali to justify her occupation or cultivation of the subject land.
   
9. At this stage, I wish to state that any agreement/arrangement under the provisions of ALTA is a personal one between a registered leasee and any aspiring Applicant. The relevant question to ask is whether the Applicant had any arrangement/agreement with either the late Mr. Ali Jan or the 1^st Respondent. The Applicant failed to submit any evidence of ‘contract of tenancy’ and/or disclose to this Tribunal the existence of any arrangements and/or agreement (legal or otherwise) she may have had with either the late Ali Jan or the 1^st Respondent in his capacity as the executor and trustee of the Estate of Ali Jan for the right to occupy or use the subject land. In light of this finding, I find that the Applicant has no interest and/or rights in the subject land in question.
   
10. The Applicant has referred this Tribunal to section 18 of ALTA. This is significant as the 1^st Respondent conceded in paragraphs 4-9 of his Affidavit dated 20^th August, 2021, the unlawful/illegal arrangement/agreement he had with the 2^nd Respondent. The 3^rd and 4^th Respondent has not taken any active part in these proceedings, as such I am not aware as to their stand on the issue. Be that as it may, I reserve my findings on this issue until the 3^rd and 4^th Respondents decide to take an active role in these proceedings. In any event, the Applicant failed to advance any submission under Section 18(2) of ALTA. I will therefore let the matter rest.
    
11. I reiterate that, the Applicant has failed to prove her interest and/or rights to either use or occupy the subject land. The 1^st Respondent is relying on the legal principles espoused in the case of Bijay Bhadur v Ram Autar & others Tribunal Reference No. WD 48 of 1978 cited with approval in the case of Gir v. Devi [1989] FJLR 2 that:
    

‘Section 4(1) affords protection to bona-fide tenants whose landlords subsequently refused to recognize them as such. It is not a shortcut to acquiring of an interest in land by adverse possession’.

12. I agree with the sentiments. In exercise of powers under Regulation 33 of ALTA Procedure Regulation:
    
    1. The application for a status quo order is denied.
    2. The substantive application for tenancy is hereby struck out.
    100. Each party to bear own cost.
    4. Appeal within 28 days.
       

Ordered Accordingly,

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

Jeremaia N. Lewaravu [Mr.]

RESIDENT MAGISTRATE

1^st October, 2021