Dulare v Tuiwainikai [1994] FJHC 78; Hbc0013j.94s (12 July 1994)

IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0013J.94S

Between:

CHANDRA PRAKASH DULARE
f/n Nand Dulare
CHANDRA KANTA PRAKASH
f/n Ram Jattan
Plaintiffs

- and -

SAKEO TUIWAINIKAI
Defendant

Mr. V. P. Ram for the Plaintiffs
Mr. A. Sen for the Defendant

JUDGMENT

In this action the Plaintiffs through their lawful attorney RAM JATTAN (under Power of Attorney Registered No. 16834) have issued a summons claiming vacant possession of land known as Delailabasa Subdivision Lot 97 shown as Lot 59 on Plan M2869 and being the whole of the land comprised in Native Lease No. 18248 with a dwelling house thereon (hereinafter referred to as the "said property").

Although the defendant's counsel wanted to file a Reply to the second Affidavit of the Plaintiff's attorney, he has failed to do so; he also undertook to file written submissions but he has not done so. The Plaintiff's counsel has filed his submissions in writing. I now proceed to give judgment.

The facts of the case briefly are that the defendant became the monthly tenant of the Plaintiffs and occupied the said property. Subsequently on 21 May 1991 the parties entered into a Sale and Purchase Agreement (hereafter referred to as "the agreement"). Under item 8 of the agreement it was provided that the defendant "shall continue to pay to the vendor the monthly rent for the sum of $400 which shall be effective from 20th May 1991 until the stamping and registration of transfer (but up to 31st August 1991 rents has been already paid to the vendor on 20th May, 1991)." The defendant has failed to pay any rent for about a year now. His tenancy has been determined by a Notice in writing effective from 31 December 1993.

The defendant is still in occupation of the said property with no intention of vacating it. The Plaintiffs say that he is in unlawful occupation of same. They further say that since no consent of the Native Land Trust Board has been obtained under section 12 of the Native Land Trust Act the dealing under the agreement is null and void. They further say that no application for consent to transfer was prepared by the defendant's own Solicitors for the Plaintiffs to sign. Under clause 13 of the agreement Messrs Kohli and Company were appointed the solicitors for the parties. The agreement, the Plaintiffs say, never came into effect. The Plaintiffs' attorney's letters annexed to his affidavit of 28 March 1994 contain demand for rent and make no mention of the agreement for purchase of the said property by the defendant.

The defendant in his Affidavit in Reply sworn the 4 March 1994 says inter alia that the Plaintiffs "neglected to execute the necessary documents to effect the transfer" despite "several effort" on his part. He says that he has an equitable right to occupy the said property. The defendant admits that the Plaintiffs are the registered proprietors of the said property and says that he is a monthly tenant thereof; the defendant admits that he entered into the agreement to purchase the said property.

Under s.169 of the Land Transfer Act Cap.131 (hereafter referred to as "the Act") the Plaintiffs fall into the category of persons who are entitled to institute these proceedings under s.169 which in so far as it is relevant provides:-

"169. The following persons may Summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietors of the land

(b) ......

(c) the lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired."

As required under s.172 of the Act the onus is on the defendant to "show cause why he refuses to give possession of such land" or that there is a triable issue and "if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessee or he may make any order and impose any terms he may think fit"

It is borne out by the affidavits of the attorney and I also find that the defendant was let into possession of the said property (evidently without any written tenancy agreement) before they entered into the agreement and the defendant paid rent as a monthly tenant and he was required to continue paying rent under the agreement as hereabove stated.

I further find that although there is nothing in the affidavits to indicate that consent of the Native Land Trust Board was obtained to the initial letting out, the defendant did pay rent as a monthly tenant and the plaintiffs have been accepting it but for the last twelve months he is in arrears. One might ask could he be regarded as a "tenant" in the absence of the necessary consent? The answer would, in my view, be in the negative. Therefore were there any tenancy agreement the same would be null and void in accordance with S12 of Native Land Trust Act. Hence the defendant's occupancy could hardly be more than a licence to occupy.

There is ample evidence which I accept to show that the defendant has been served with Notice terminating his occupancy when the Attorney stated in his Affidavit that "the said tenancy was cancelled by a Notice in writing served on the Defendant on 27th day of November, 1993 and acknowledged by him. Such termination taking effect as from the 31st day of December 1993." The defendant has neither admitted nor denied this statement hence it will be deemed to be admitted. I find that a valid notice to quit has therefore been given.

The situation therefore is that whatever licence to occupy he may have had would have been terminated by the notice to vacate. Hence the Plaintiffs as the last registered proprietors are entitled to claim vacant possession; the onus is as I have already stated on the defendant to 'show cause' why an order should not be made to that effect.

I am not satisfied that the defendant has 'shown cause' to enable me not to make such an order. He admits being in possession of the said property and, in the absence of denial, not paying any rent for a year now. He is relying on the agreement and is blaming the Plaintiffs for not executing the necessary documents to effect the transfer of the said property. On the basis of this he says he has an equitable right to remain on the said property. With this view I disagree.

The defendant's contention does give rise to a consideration of the validity and effectiveness of the agreement but before I proceed to consider it, although not raised, the question could arise whether it was necessary for the Plaintiffs to obtain consent of the Native Land Trust Board to institute these proceedings. The answer to this is in the negative which I base on the case of NAGIN s/o Gulabdas and RANAS LIMITED v YEE FONG GAU t/a YUE HING STORE (C.A.93/87 at Labasa), a judgment of FATIAKI J. My brother judge was there dealing with land under s.13 of the Crown Lands Act (Cap.132) which deals with consent to be obtained in certain cases. Here I am concerned with a Native Lease and in respect whereof a very similar but slightly different provision for the obtaining of consent is required under s.12 of the Native Land Trust Act. In NAGIN (Supra) where s.13 provision was much wider than the said s.12 it contained the following words (which were not in s.12 of the Native Land Trust Act):

"..., except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, ...."

his Lordship was of the view that:

"the section does not in the relevant limb require the prior written consent of the Director of Lands nor in my view ought the words "dealt with" be construed as learned counsel for the defendants submits."

With this view I am in full agreement.

In view of what I have stated hereabove, on that alone the Plaintiffs will be entitled to the order sought in the Summons. However, since the defendant is relying on the agreement which he says gives him the equitable right to be on the said property, I must deal with this aspect of the matter.

At the outset, I must say that the present dealing namely, the agreement is null and void because no prior consent of the Native Land Trust Board has been obtained as required by the following provisions of the Native Land Trust Act:

"12.- (1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing affected without such consent shall be null and void."

The parties appointed Messrs. Kohli and Company as their Solicitors but no steps whatsoever were taken by either party to obtain the necessary consent of the Native Land Trust Board. The Plaintiffs on the other hand continued to accept rent under item 8 of the agreement. Although the defendant says that despite "several efforts on my part the Plaintiffs have either failed or neglected to execute the necessary documents to effect the transfer", he does not say what efforts he made. He did not apply for consent when it was competent for him to do so. In D. B. WAITE (OVERSEAS) LTD. v. SIDNEY LESLIE WALLATH 18 FLR 141 FCA at 147 MARSACK J. said:

".... that it was competent for the respondent himself to apply for consent .... The primary responsibility for applying for the Board's consent undoubtedly rests on the vendor. But, as I see it, there is no definite rule that in no circumstances is the Board entitled to grant its consent to a dealing in land except upon the application of the vendor. In Court Brothers Limited v. Sunbeam Transport Limited (1969) 15 F.L.R. 206 and in Fong Lee v. Mitlal (1966) 12 F.L.R. 4 the consent of the Board to the sale was granted upon the application of the purchaser, and the legality of the contract was confirmed by this Court."

The defendant says that there is an operative Agreement which establishes his right to occupation. That cannot be so. In D. B. WAITE (OVERSEAS) LTD (Supra) at p.146 GOULD V.P. said:-

"But, though the Privy Council did not quote this part of the judgment in Harnam Singh's case, that judgment went on to say that such an agreement would be inoperative until such consent had been given. The Privy Council cannot therefore be taken as saying that a binding and enforceable agreement would be lawful. Having regard to the wording of section 12, "it shall not be lawful, for any lessee ... to alienate or deal with the land ... whether by sale, transfer or sublease or in any other manner whatsoever". I am impelled to the conclusion that an operative agreement for sale must be a contravention of the section. Such an agreement creates an interest in land in the purchaser and must therefore amount to a dealing in land."

In the circumstances of this case the defendant cannot claim to have an equitable right to the said property even though he is in possession of the property pursuant to the agreement. A somewhat similar situation as this was considered in CHALMERS v. PARDOE (1963) 3 AER 552 by the Privy Council in which the arrangement between the parties had gone beyond the stage of being a mere agreement. There Mr. Chalmers "had built a home and other building on part of that land and entered into possession. The consent of the Native Land Trust Board was never obtained. The Privy Council were of the opinion that the transaction amounted to an agreement for a lease or sublease but even regarding it as a licence to occupy coupled with possession, their Lordships considered that a "dealing" with the land took place": (GOULD V.P. in JAI KISSUN SINGH v. SUMINTRA 16 FLR p 165 at p 169).

The following passage from the judgment in JAI KISSUN SINGH (supra) at pp 170-171 is apt showing the agreement to -be null and void such as in the circumstances of this case:

"If an agreement is signed and held inoperative and inchoate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where then, is the line to be drawn? I think on a strict reading of section 12 in the light of its object, an agreement for sale of native land would become void under the section as soon as it was implemented in any way touching the land, without the consent having been at least applied for.................."

And at page 171:

"In the present case, even if any question of degree is involved, I am satisfied that possession and control for four years, together with the payments made and the other matters which I have mentioned above, without application for consent, go far beyond any line which could reasonably be drawn. There was, therefore, a dealing which, in the absence of the consent of the Native Land Trust Board first had and obtained, was unlawfully entered into, and was null and void. I think this is one of those hard cases in which ignorance of the law does not assist the appellant."

If it is the defendant's claim, and that is what it is I find, that he has been in possession pursuant to the agreement which has given him the right to do so and that the Plaintiff cannot evict him then he is definitely mistaken in his belief for in JAI KISSUN SINGH (supra) a similar situation arose and GOULD V.P. at p said:

".... it is not necessary that the agreement between the parties should have progressed to a stage at which formal documents of lease or assignment had been executed before the transaction became a dealing requiring prior consent. That, having regard to the objects of the section, is only common sense. Otherwise, a purchaser under agreement could remain indefinitely in possession and control, exercising the rights of full ownership and even protecting himself by caveat."

Further on the effect of section 12 in the making of a contract such as in the case before me HENRY J.P. in PHALAD s/o Shiu Prasad and SUKH RAJ s/o Dhani (Civ. App. No. 43 of 1978 F.C.A.) said:

"The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12. It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the subsequent acts of appellant, done in pursuance of the agreement, "alienate or deal with the land, whether by sale, transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts. For myself I have no doubt but that the true construction of the said agreement and the substantial implementation of such an agreement for sale and purchase, under which possession is completely parted with to the purchaser and immediate mutual rights and liabilities are created in respect of such exclusive possession, is a breach of section 12 if done before the consent is obtained."

The words "alienate" and "deal with" as elaborated in section 12, are absolute and do not permit conditional acts in contravention. If before consent, acts are done pending the granting of consent, which come within the prohibited transactions, then the section has been breached and later consent cannot make lawful that which was earlier unlawful and null and void. This does not cut across the cases already cited which deal with the formation of the contract as contrasted with an immediately operative agreement and substantive acts in performance thereof."

To sum up, in this case possession was given even before the agreement was executed. At the time of giving and taking of possession or later at the time the agreement was executed consent of the Native Land Trust Board was not obtained or even applied for. The transaction or dealing therefore created an immediate interest in land in a person other than the owner before consent was applied for or obtained but in this case not obtained at all. The dealing therefore was void ab initio because the defendant was put in possession of the land first, then the agreement was executed.

In these circumstances I therefore hold that the defendant's entering into possession and the subsequent agreement was an unlawful dealing in land comprised in the Native Lease and null and void.

The defendant is in unlawful possession of the said property and he cannot justify remaining in possession.

In MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499 a Privy Council case it was held that a registered owner of land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested on his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession.

To conclude, I find that for the reasons given hereabove the defendant has not shown any right to remain on the said property or that there are any triable issues, and therefore I order the defendant to deliver vacant possession of the said property to the Plaintiffs forthwith with costs against the defendant which are to be taxed if not agreed.

D. Pathik
Judge

Suva
12 July, 1994

HBC0013J.94S