Civil Aviation Authority of Fiji Islands v Trustees of Nadi Airport Club [2004] FJHC 387; HBC0332.2003L (9 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0332 OF 2003L

BETWEEN:

CIVIL AVIATION AUTHORITY OF FIJI ISLANDS
Plaintiff

AND:

TRUSTEES OF NADI AIRPORT CLUB
a Social Club, CAAFI Compound, Nadi Airport, Namaka
Defendant

Counsel for the Plaintiff: Mr S. Verma
Counsel for the Defendant: Mr. F. Koya

Date of Hearing & Judgment: 9 March 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Originating Summons filed on behalf of the plaintiff where the plaintiff seeks various orders.

The first is an order vesting legal ownership of the club house, swimming pool and structures constructed by the defendant club on land leased by the plaintiff to the defendant club comprised in Lease No. 176809 part of DP4600 on Crown Lease No. 3649 comprising DP4600, 4659, 5784 (and several others) situated in the CAAFI compound, Namaka, Nadi owned by the plaintiff.

The second order sought relates to rental and legal costs allegedly owing by the defendant to the plaintiff.

The third order seeks a discharge of any further liability of the defendant to the plaintiff and the fourth order seeks finality to the disputes between the parties.

The application is supported by an affidavit of Jayant Singh dated 26 September 2003 and the further affidavit by that same deponent sworn on 28 January 2004. The defendant relies on an affidavit of Don Collingwood filed on 11 December 2003.

The defendant raises two issues by way of preliminary issue with respect to the hearing of the matter. Those issues are: -

1. That the lease with respect to the land upon which the buildings are situated is a Crown lease and is protected and that accordingly the consent of the Director of Lands is required pursuant to Section 13(1) of the Crown Lands Act Cap. 132.
   
2. The plaintiff is precluded from relying upon the copies of the leases annexed to the affidavit of Jayant Singh sworn on 26 September 2003 as those documents do not comply with the provisions of Section 11 of the Civil Evidence Act, in that they are not certified by the officer having the custody of the records.
   

I have had the benefit of oral submissions by counsel for the plaintiff and the defendant with respect to both issues and in particular the former.

The plaintiff is the lessee from the Crown of a large parcel of land which might generally be described as the Nadi Airport.

A small area of land within that lease was sublet by the plaintiff to the defendant for the purposes of a club house and other infrastructure and facilities. The lease from the Crown and the sublease from the plaintiff to the defendant are both annexed to the affidavit of Jayant Singh as I have stated above.

The existence of the lease is acknowledged by the defendant in the affidavit of Don Collingwood and whilst the provisions of section 11 of the Civil Evidence Act would require the leases to be certified. In the circumstances, the acknowledgement contained the affidavit of Mr. Collingwood would in my opinion negate the need for the plaintiff to formally prove the contents of those documents and accordingly, I am not satisfied that the documents should be rejected on the basis of the non compliance with section 11 in the particular circumstances of this matter for the reasons that I have stated.

It is acknowledged by the plaintiff that the defendant’s buildings form part of the land. Those buildings and other infrastructure forming part of the land must in my opinion form part of the land the subject of the lease from the Crown to the plaintiff.

It is argued that the lease from the plaintiff to the defendant expired in 1999 and that therefore there is now no lease and there is therefore no lease to which section 13(1) of the Crown Lands Act would apply but section 13(1) of the Crown Lands Act must apply in my opinion to the head lease by virtue of the provisions contained in that lease and as the defendant’s buildings and infrastructure form part of the land in that lease then the provisions must of necessity apply to proceedings involving that infrastructure.

Counsel for the plaintiff submits that section 13 applies only to dealings in leases. Section 13, is I think far more broad than that and in any event once its accepted that the buildings and infrastructure form part of the land in the lease, I think it becomes impossible to then attempt to separate the buildings and infrastructure from the land, that is from the lease and accordingly these proceedings are caught by the provisions of section 13(1) and the consent of the Director of Lands is required for the commencement of the proceedings that being so, there is no alternate left for the court but to dismiss the plaintiff’s summons and I will order.

Orders

1. Summons is dismissed.
   
2. The plaintiff to pay the defendant’s costs and I assess those costs in the sum of One Thousand Dollars ($1,000.00).
   

JOHN CONNORS
JUDGE

AT LAUTOKA
9 March 2004