Kuar v Berwick [1992] FJHC 48; Hbc0258d.92s (27 October 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 258 OF 1992

Between:

MARGARET JAI KUAR
d/o Pahalad
Plaintiff

- and -

SAM BERWICK
Defendant

Mr. T. Fa for the Plaintiff
Mr. M.V. Bhai for the Defendant

RULING

This is an application under Section 169 of the Land Transfer Act seeking vacant possession of a house occupied by the defendant at Matuku Street in Samabula and which is standing on a protected Crown Leasehold of which the applicant is the last registered lessee.

The applicant claims the right to possession of the property on 2 grounds firstly, that the defendant's tenancy has been validly terminated by a Notice to Quit served personally on him on the 16th of March and secondly on the ground that the tenancy is caught by the provisions of Section 13(1) of the Crown Lands Act (Cap. 132) and is therefore "null and void".

As to the first ground the defendant in his affidavit in reply has annexed a duly stamped copy of a lease agreement dated 10th January 1991 purporting to grant to the International Baptist Church a two year lease over the subject property.

I say "purporting" advisedly because although the lease appears to be executed under a 'Power of Attorney' no power has been produced nor does it appear to have been registered as no particulars in that regard have been furnished in the relevant declaration annexed to the copy lease.

Furthermore the alleged donor of the power, namely, the applicant, has deposed that "... at no time I have given any authority and/or Power of Attorney to execute the lease in question ...". Clearly the question of whether or not the lease has been validly executed raises triable issues and on that alone I would be reluctant to summarily determine the issue.

The applicant's second ground however raises a much more fundamental issue of the legality of the defendant's lease. Even assuming that the lease is properly executed and regular on its face there is no doubting that it has not been consented to by the Director of Lands. Furthermore it is in terms not made subject to the prior consent of the Director of Lands being obtained and in any case the defendant acknowledges that he is in occupation of the premises.

Learned counsel for the defendant sought vainly to argue that the primary responsibility for obtaining the necessary consent from the Director of Lands lay with the lessor (i.e. the applicant) and that even in the absence of the written lease a valid enforceable oral agreement to lease existed between the parties and had been fully performed by the defendant entering into occupation of the premises and paying rental regularly.

With all due regard to the submission it does not begin to provide an answer to the mandatory requirement of Section 13(1) of the Crown Lands Act which not only prohibits any "sublease" of a protected lease without the "... written consent of the Director of Lands first had and obtained ..." but also any "dealing" with a protected lease.

In this latter regard having regard to the decision of the Privy Council in Chalmers v. Pardoe [1963] 3 ALL E.R. 552 there can be no doubting that an oral agreement to lease a protected Crown Leasehold coupled with possession is a "dealing" within the contemplation of Section 13 of the Crown Lands Act (Cap.132).

Accordingly the possession and occupation by the defendant of the plaintiff's protected Crown Leasehold must be considered illegal, null and void.

There will be an order for vacant possession in favour of the plaintiff but having regard to the unfortunate circumstances in which the defendant now finds himself (which were not of his own making) I would exercise my discretion in the matter and stay execution of the order for a period of 2 months from the date of service of the order upon the defendant.

(D.V. Fatiaki)
JUDGE

At Suva,
27th October, 1992.

Hbc0258d.92s