Khan v Khan [1992] FJHC 15; Hbc0457d.91s (20 March 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 457 OF 1991

Between:

1. AMINA BI KHAN
d/o Mazullah Khan
2. SHAUKAT KHAN
s/o Habibullah Khan
3. HAROON KHAN
s/o Ameer Khan
Plaintiffs

- and -

1. MOHAMMED ALI KHAN
s/o Habibullah Khan
2. HASMI BI
d/o Riyasat Ali
3. BASHIR KHAN
s/o Puran Singh
Defendants

Mr. A. Sen for the Plaintiffs
Mr. H.M. Patel for the Defendants

RULING

On the 24th of September 1991 this court granted an interim injunction on the ex parte application of the plaintiffs against the defendants restraining them from evicting and/or interfering with the plaintiffs' occupation of native land.

The defendants now seek inter partes the dissolution of the injunction on two principal grounds:

(1) That the original person through whom the plaintiffs' claim to be entitled to occupy the land namely Habibullah Khan, never owned the land as claimed and therefore was presumably incapable of divesting any part of it to the plaintiffs;

alternatively,

(2) Even if the court should find that the plaintiffs were "entitled" to occupy the land, their occupation of the land would be illegal null and void under S.12 of the Native Land Trust Act Cap. and S.4 of the Subdivision of Land Act Cap. 118.

As to the first ground it is necessary to trace briefly the opposing sequence of tenure of the disputed land which is known as Naodamu and more particularly delineated in NLTB FILE No. 4/9/7298.

The plaintiffs in their affidavits claim (without supporting documents) that the land was originally "owned" by one Sukhawat Khan and was later transferred to his son Habibullah Khan and on the latter's death the land was transferred to his wife Hamidan Nisha (presumably as administratrix of his estate) who then transferred it to her son Mohammed Ali Khan (the first defendant) who in turn sold it (in 1988) to the 2nd defendant who sold it (in 1991) to its present owner Bashir Khan (the 3rd defendant).

On the other hand there appears to be an unbroken chain of documentary annexures that indicates that prior to 1971 the subject land was leased to the C.S.R. Then in 1971 Hamidan Nisha applied to the N.L.T.B. for a lease of the land and a "T.A.W." (tenancy-at-will) was provisionally approved on the 2nd of November 1972. No formal title document has been issued to her but it is common ground that she continued to occupy the land under the terms of that approval and dealt with it as though she were a registered lessee.

The land was successively transferred (with the consent of the N.L.T.B.) to the 1st defendant on 21st of May 1984; to the 2nd defendant on the 22nd July 1988 and finally to the 3rd defendant on the 12th of June 1991.

The plaintiffs each claims to be entitled to remain in occupation of the various portions of land that each claims to occupy by virtue of the following "facts":

-The first plaintiff, as the daughter-in-law of Habibullah Khan whose husband Ramzan Ali Khan had been given 3 acres of the said land to occupy and cultivate about 33 years ago;

-Similarly, the second plaintiff, Shaukat Khan, claims to have cultivated and lived on his portion since he was 15 years. He too was given 3 acres on which to build his house.

-The third plaintiff Haroon Khan, has not sworn an affidavit but there is a disputed letter dated the 29th of May, 1990 which bears the thumb print of the 2nd defendant Hasmi Bi and which confirms the existence and the sale of a dwelling house on the land to the 3rd plaintiff by Yusuk Ali Khan who was also a son of Habibullah Khan.

The plaintiffs also claim to have had no knowledge of the sale or transfer of the land to any of the defendants but such a claim appears at best implausible having regard to the eviction proceedings that were instituted against them in the Labasa Magistrate Court in May 1990 by the 2nd defendant coupled with their own solicitor's response of 22nd March 1989 to the 'notice to quit'.

The defendants for their part rely on the N.L.T.B. consents and registered transfers as the foundation of their respective titles to the land. In addition the 2nd defendant deposes to her belief "... that the sons of Habibullah Khan came on the land by virtue of being members of the family and not pursuant to any trust".

She also pleads the illegality of the plaintiffs' occupation of the land for lack of N.L.T.B. consent.

It is noteworthy that the area of land which Hamidan Nisha applied for was amended to 3.6 acres whereas the land transferred to the defendants has an area of 6 acres and 2 roods. Furthermore the application was made at a time when she was a 60 year old widow.

It might well be that as the plaintiffs' claim their portions were given to them during their father or father-in-law's lifetime or even by their mother prior to her application for a formal lease over the land and the fact that Hamidam Nisha saw fit to transfer the land to the 1st defendant only to the exclusion of her other children who were then presumably living and farming on the land raises what the plaintiff's claim to be an issue of 'fraud' in the transfer of the land to Mohammed Ali Khan.

Clearly the circumstances under which each plaintiff came to occupy the land raises triable issues that can only be resolved by an open court hearing. Furthermore the presence of the plaintiffs on the land must on any view have been apparent to the defendants. Certainly the 2nd defendant was aware of this when she agreed to sell the land to the 3rd defendant and so presumably must the 3rd defendant when he accepted responsibility for evicting "anyone who is on the property".

That however is not the end of the matter for there remains the second alternative ground raised by learned counsel for the defendants and in support of which he cited the decision of the Fiji Court of Appeal in Ram Narayan v. Moti Ram Civil Appeal No. 16 of 1983 where the Court considered very similar issues to those in the present case and said at p.4:

"Even conceding, by way of assumption that the respondent was entitled to succeed ... the respondent would still be left to surmount the provisions of the Native Land Trust Ordinance. It is common ground that no consent of the N.L.T.B. was obtained to the transaction of gift. It is common ground that the transaction was implemented to the full by the respondent going into possession of the land and building a house upon it. These are the very circumstances which have been held, where no consent has been obtained, to constitute a dealing in land contrary to Section 12 of the Act and thereby unlawful, null and void in terms of the section.

We consider it inescapable that, whatever the outcome of the "gift" issue, the respondent could not show a lawful title to remain on the land."

and further at p.3:

"The two sections (namely 12 and 27), clearly designed for the control and protection of native land, are manifestly not such that an estoppel could be permitted to operate to their negation."

That decision however needs to be considered in the light of the more recent judgment of the Privy Council in Maharaj v. Jai Chand (1986) 3 All E.R. 107 in which their lordships distinguished Chalmers v. Pardoe [1963] 3 ALL E.R. 552 (cited by counsel for the defendants) and held:

"On the natural and ordinary meaning of Section 12 of the Fiji Native Land Trust Act a purely personal right arising out of a promissory or equitable estoppel was not a 'dealing' with land for the purpose of Section 12."

In this latter regard even if one assumes that the plaintiffs could establish a purely personal right against their mother and brother preventing them from denying that the plaintiffs had their permission to reside permanently on the portions of land given to them and which they occupied, nevertheless, in the absence of a properly particularised "fraud" it is difficult to see how such an equity or estoppel could operate so as to bind the 3rd defendant in the light of Section 40 of the Land Transfer Act (Cap. 131).

Learned counsel for the plaintiffs in opposing the application submitted that even if the "gifts" to the plaintiffs were considered to be 'dealings' with the land in question, nevertheless they occurred at a time when the land "belonged to the C.S.R." and prior to it becoming 'native land'. In the circumstances no consent was required from the N.L.T.B.

The submission is only superficially attractive and in any event is based up on an unsubstantiated assumption as to the ownership of the land prior to 1971. Needless to say the land is described in Hamidan Nisha's application in 1971 as being "... within Naodamu C.S.R. lease" and as owned by the "Mataqali Navakalevu".

Counsel for the plaintiffs also sought to distinguish the decision in Ram Narayan's case (op cit) on the basis that the court was there dealing with a registered lease whereas here the 'primary' document was an 'approval notice' and the argument continues it was only in respect of 'dealings' with native land the subject matter of a registered or registrable 'lease' that the consent of the N.L.T.B. was required.

Such an argument ignores the object and purpose of Section 12 which is:

"... directed against alienating or dealing with the land without the consent of the board. Manifestly the section is intended to ensure that the board's power of control and the beneficial interests of the Fijian owners are not to be prejudiced by unauthorised transactions". (per Sir Robin Cooke in Maharaj v. Jai Chand (op. cit.) at p.110b)

Furthermore the submissions incorrectly lays emphasis on the document of title which identifies the land as opposed to "the land" itself on or over which the 'dealing' (if any) has occurred and which Section 12 in terms seeks to protect.

In any event it was decided by Williams J. (as he then was) in Chandrika Prasad v. Gulzara Singh and Others Labasa Civil Action No. 76 of 1976 that a person occupying native land under an approval notice issued by the Native Land Trust Board was, in equity, a lessee on the terms of that particular notice of approval (approved by the Fiji Court of Appeal in Logessa v. Pachamma Civil Appeal No. 59 of 1979).

In the circumstances I have reluctantly come to the conclusion that the injunction granted by this court on the 24th of September, 1991 should not be further extended and it is accordingly dissolved.

(D.V. Fatiaki)
JUDGE

At Suva,
20th March, 1992.

HBC0457D.91S