Bansraji v Bali [1993] FJCA 42; Abu0023d.93 (1 December 1993)

Fiji Islands - Bansraji v Bali - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CIVIL JURISDICTION

CIVIL APPEAL NO. 29 OF 1993

BETWEEN:

BANSRAJI
f/n BUDDHU OF TABIA, LABASA,
CULTIVATOR
Appellant/Applicant
(Original Defendant)

AND:

CHATTAR BALI
f/n JAGANNATH OF TABIA, LABASA,
CULTIVATOR
Respondent

Mr K. Chauhan for the Appellant
Mr P. Ram for the Respondent

DECISION
(Chamber Application)

This is an application by the Original Defendant for leave to appeal out of time.

Judgment in the matter was delivered by Scott J. in Labasa on 28th November, 1991 and the Court's Order was not sealed until 23rd June, 1992. The Order as sealed reads as follows:

"(a) that the Plaintiff is the holder of an Agricultural Tenancy created after the commencement of the Agricultural Landlord and Tenant Act (Amendment) Act 1976 (commencement date 1st September, 1977) and as such tenancy is for a term of 30 years commencing on 1st January, 1984 (see ALTA Sections 3(2) and 6(b).

(b) that the Plaintiff is the lawful tenant over Lots 2 and 8 on D.P. 5470 comprised in the Certificate of Title 21757."

The 6 weeks time for appealing began to run from the date of sealing on 23rd June, 1993. The present application was not filed until 10th August, 1993, that is almost some 10 months after sealing of the judgment and nearly 21 months from the date of the decision. It is therefore clear that the delay in making this application is substantial. The Applicant (original Defendant) having lost her right to appeal now must crave the indulgence of this Court to restore that right. The onus is on her to show good cause why the application should be granted. To this end she has filed an affidavit the relevant parts of which read as follows:

"1. THAT I intend to appeal in the above action.

2. THAT my former Solicitor was MR MOHAMMED SADIQ of Labasa but I have now changed my Solicitors by appointing MESSRS CHAUHAN & COMPANY, Solicitors of Suva to act for me in the matter of this appeal in lieu of the said Mr Mohammed Sadiq.

3. THAT I have been advised by my Solicitors and verily believe that I have a good and valid appeal in this matter in point of law.

4. THAT appended hereto and marked with the letter "A" are the proposed grounds of appeal as set out in the draft Notice of Appeal.

5. THAT by the Summons for Leave to Appeal I crave leave of this Honourable Court to so appeal and for extension of time to serve the Notice of Appeal on the Plaintiff and/or his Solicitors.

6. THAT the reasons for delay in lodging this appeal are as hereinafter provided.

7. THAT I have been in financial difficulties and was unable to raise enough monies to engage Solicitors with the view to execute the said appeal.

8. THAT this financial difficulty was further compounded by the fact that my husband suffers from acute diabetes and was intermittently admitted to the Labasa Hospital.

9. MOREOVER the above problem was further compounded by the fact that our lawful son who had been recently married had deserted us and gone to reside at the abode of his in-laws contrary to our age-old Indian custom.

10.............

11. I intend to appeal in this matter with a view to obtain AN ORDER that the Judgement by way of a DECLARATION delivered by the Honourable Mr Justice M D Scott on the 28th day of November, 1991 be set aside.

12. THAT for reasons afore-mentioned I pray to this Honourable Court to grant me leave to appeal out of time by enlarging the time of appeal in terms of Order 59 Rule 15 of the Supreme Court Practice 1967 contained in White Book Volume 1 so that important points of law can be determined and justice done."

The 3 grounds on which the Applicant proposes to rely are:

1. That inasmuch as the subject matter of the action was appertaining to agricultural land and ancillary matters between landlord and tenant the learned trial judge erred in law in adjudicating thereon in contravention of Section 9(2) and other provisions of the Agricultural Landlord and Tenant Act Cap. 270. (ALTA).

2. That the learned trial judge erred in law in delivering a judgment in the matter when the respective counsel appearing had only requested for a Ruling as to whether the matter was such as to be determined by the provisions of ALTA or the Land Transfer Act (LTA).

3. That assuming the learned trial judge was correct in adjudicating thereon he was wrong in law in determining the matter:-

(a) purely on affidavits and without proper trial, and;

(b) in declaring a tenancy over Lots 2 and 8 in Certificate of Title No. 21757 when the purported tenancy over Lot 8 consisted of an area of approximately 2 roods only and located about 1/2 (half) a mile away from Lot 2, in contravention of Section 3 (1) of the ALTA."

The Respondent (original Plaintiff) is vigorously opposing this application. In his affidavit the Respondent disputes a number of the Applicant's assertions and intentions. In paragraph 19 he says:

"19. ANY extension of time granted will only delay my re-entry into the land and the Appellants actions since the decision show that she has schemed to evict me somehow. In the meantime I am unable to enjoy the tenancy or even to cultivate it. Since 1988 I have been losing about $8000.00 a year in income and this will continue if time is given . Any extension therefore will be prejudicial to me."

The Respondent has gone into great depth into the substance of the appeal in an endeavour to show there is no merit in it. I must remind myself that I am not sitting here in my appellate jurisdiction. However, the chances of the appeal succeeding if the application is granted is one of the factors that this Court can take into account, the others being (1) the length of the delay, (2) the reasons for the delay and (3) the degree of prejudice (if any) to the Respondent (see Norwich & Peterborough Building Society v Steed [1991] 2 ALL ER 881 per McCowan L.J. at p. 881j-882a).

The parties had filed 'Statement of Agreed Facts' (which also included agreed issues), agreed bundles of exhibits and written submissions. Paragraph 15 of the 'Statement of Agreed Facts' asked the Court to determine the following questions:

"(a) when purchasing the CT 21757 did the Defendant have notice constructive or otherwise of the Plaintiff's existing tenancy? If she has is she bound by such notice and is the purchase of the title subject to the tenancy?.

(b) Is the tenancy registered under No. 1326 under the provisions of the Agricultural Landlord and Tenant Act valid, subsisting and binding on the Defendant?.

(c) Does the fact of the tenancy taking effect from 1/1/84 remove the tenancy outside the scope of the Act? If so

(i) Does that vitiate the tenancy?

(ii) Is it still an effective tenancy? or

(iii) Does the document create a fresh tenancy?"

It was on the basis of these documents and the affidavits filed by the parties that the learned Judge gave his judgment. He answered the questions raised in the following way:

"....Soma Raju v. Bhajan Lal which is conclusive authority for the proposition that rights to occupation of agricultural land under the Agricultural Landlord & Tenant Ordinance (and its successor Act ALTA - Cap. 270 1978 Edition) exist in law independently of the Land Transfer Act whether or not the Tenancy is registered and prevail against the indefeasibility provisions of the Land Transfer Act.

It may in passing also be noted that even if, as in this case, the tenancy is incapable of registration under the Land Transfer Act there is provision for warning of the existence of the agricultural tenancy to appear on the Title (see Agricultural Landlord & Tenant (Tribunal Procedure) Regulations, Regulation 50(3)). There is therefore really no excuse for a purchaser of land subject to an agricultural tenancy to acquire it without notice of the tenancy.

The only other matter at issue is the duration of the tenancy enjoyed by the Plaintiff.

On 1 January 1970 the Plaintiff was granted an Instrument of Tenancy No.57 pursuant to the Ordinance. That tenancy expired on 31 December 1980. Thereafter the Plaintiff remained in occupation of the land until Tenancy 1326 was granted to him. There was some issue as to whether 1326 was a renewal of No. 57. In my view it was not (see Brooke v. Clarke 1 BB Ald 399). Neither is the precise legal basis on which the Plaintiff continued to occupy the land in the period between 1 January 1980 and 1 January 1984 clear to me. In my view the Plaintiff is beyond dispute the holder of an agricultural tenancy created after the commencement of the Agricultural Landlord & Tenant (Amendment) Act 1976 (commencement date 1 September 1977) and as such the tenancy is for a term of 30 years commencing on 1 January 1984 (see ALTA Sections 3(2) and 6(b)).

In the circumstances I declare that the Plaintiff is the lawful tenant over Lots 2 & 8 on D.P.5470 comprised in Certificate of Title 21757."

It is the Applicant's contention:

(a) that the parties had sought a ruling on certain questions of law to determine whether the matter should be tried by the High Court or by the Agricultural Tribunal,

(b) that instead the learned trial Judge short-circuited the whole matter by delivering a judgment without trial leaving "The remaining issues between the parties" to "be resolved by agreement",

(c) that the agreed facts and exhibits show that there are numerous triable issues to be dealt with.

The counsel for the Respondent counters this agreement by saying that it does not matter what form the Court's decision took - whether it was a Ruling, a declaration or judgment, the parties had submitted to the Court's jurisdiction and the Court had answered the questions posed.

In my view there is merit in the Respondent's submission. The substantive contention has been resolved in favour of the Respondent. If the Applicant was dissatisfied with the Court's decision she should have promptly or within the allotted time appealed against the Court's decision.

The basic issue was whether the Plaintiff is holder of an agricultural tenancy. The Court having ruled in the affirmative I cannot see how the same matter can now be litigated before another tribunal. There is nothing of great legal importance in the issues raised in the appeal because similar issues have been dealt with by Courts previously.

With regard to ground 3(a) of the appeal it must be emphasised that the determination in the Court below was made not only on the basis of affidavits only but also on the basis of agreed exhibits and the agreed facts.

Prima facie the Applicant does not appear to have any reasonable prospect of succeeding in her appeal even if time were allowed. The delay has been substantial and the reasons for delay have not been satisfactorily explained. Furthermore it is clear that any further delay will be greatly prejudicial to the Respondent. It is noted that the subsidiary matters which have not been dealt with can still be litigated as the trial Court has specifically reserved liberty in this regard.

This application is dismissed with costs to the Respondent.

Sir Moti Tikaram
Acting President, Fiji Court of Appeal

Suva
December, 1993

Abu0023d.93