Native Land Trust Board v Hakim [2005] FJHC 540; HBC0023.2005 (29 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0023 OF 2005

BETWEEN:

NATIVE LAND TRUST BOARD
PLAINTIFF

AND:

SAIYAD HAKIM
DEFENDANT

Date Received: 26 July 2005
Date of Ruling: 29 September 2005

CASE STATED RULING OF FINNIGAN J

I have before me a Case Stated by a Magistrate seeking my opinion on three questions of law. In the Magistrate’s Court the Native Land Trust Board has commenced an Action to recover from a tenant (a) Arrears of Rent, (b) Arrears of “Administration fees” and (c) Interest on all outstanding amounts at the rate 12% per annum. I am advised in the Case Stated that there are a number of proceedings of a similar nature currently pending in the Magistrate’s Court. The answers to the three questions will be applied in a number of other cases.

From the record it is apparent that the Defendant appears in person and raises no issue. He has been present at each adjournment and hearing. He seeks only to avoid eviction and to be given time to pay whatever is claimed. For its part the Plaintiff appears not much better advised than the Defendant. The three questions are as follows and were raised by the Court:

1. Is the NLTB authorized to charge an annual administration fee as claimed?
   
2. The only authority for the charging of interest is Provision 34 (j) of the Fourth Schedule to the Regulations made under the Native Land Trust Act. This authorizes interest “at the current rate of interest chargeable by Banks in respect of the making of advances”. Does this provision impose an obligation on the NLTB if it wishes to charge interest;
   
   • (a) to make due enquiry as to what the current rate of interest charged by banks in respect of the making of advances is from time to time?
     
   • (b) To make a determination as to the rate of interest to be charged by the NLTB based on the results of that enquiry?
     
   • (c) To review (a) and (b) at some subsequent time?
     
   • (d) If the answer to (c) is yes, how often?
     
3. Is there any right for the NLTB to charge;
   
   • (a) interest on unpaid administration fees if the answer to (1) is yes?
     

OR

(b) Interest on outstanding interest?.

Discussion

He who alleges must prove. The Learned Magistrate’s dilemma is not caused by any conflict or uncertainty in the law. Rather it is caused by the appalling failure of the Plaintiff’s representative in Court to establish a basis for its claim. I myself have heard no argument to enable me to decide the questions. The questions were raised by the Magistrate at the hearing on 18 August 2004. As recorded the only assistance offered by the Plaintiff’s representative was that the lease administration fee is an annual fee charged each year, and that as for interest she thought the government gave them the right to charge it. The hearing was adjourned till 29 September 2004, when different counsel appeared. He offered as authority for the administration fee S. 14 (1) of the Native Land Trust Act, Cap 134. The Magistrate rightly rejected that. On that basis the Learned Magistrate is entitled to find the NLTB does not have authority for the charges claimed.

The Case Stated is a logical request for a statement of the law which may be applied to this situation. Apparently it results from the Magistrate’s own research. But it is for the Plaintiff to advance argument to justify its claims. One assumes it has surely been required to do so in the past. Its casual approach to the questions in the present case clearly leaves the Magistrate in doubt about the claims for administration fee and interest. Applying the balance of probabilities principle the Magistrate is entitled to dismiss those claims, and should do so in all like cases until authority for them is shown.

I would be surprised if these issues have not been decided before and the Plaintiff should put all its cards on the table. If there are decided authorities or if there are legal opinions it is for the Plaintiff who seeks these remedies to lay those before the Magistrate’s Court.

The case has been stated under Section 37 of the Magistrates’ Courts’ Act Cap 14. It is as follows:-

“37. In addition to and without prejudice to the right of appeal conferred by this Act (Section 36), a Magistrate may reserve for consideration by the Supreme Court, on a case to be stated by him, any question of law which may arise on the trial of any suit or matter, and may give any judgment or decision subject to the opinion of the High Court, and the High Court shall have power to determine, with or without hearing argument, every such question”.

The emphasis is mine. There is currently a trial. The defendant is not contesting the claims but the plaintiff scarcely raises a finger in support of its own case. The trial has been adjourned 6 times since 29^th September 2004 “for formal proof”, but the plaintiff has offered nothing at any of these hearings. The defendant has appeared each time and awaits the outcome. The Magistrate is entitled to give a decision now, and would be justified in terminating the hearing and dismissing the claims for administration fee and interest. This is clearly justified by the Plaintiff’s answers to the Court’s questions.

The Answers to the Questions

Informally and without benefit of argument I offer the following tentative opinions. In respect of Question 1, on the information in the Case Stated the Learned Magistrate has good reason to doubt that the NLTB is supported by the law in charging its administration fee. She has been offered no authority. She can dismiss the claim. In respect of Question 2 I again share the Magistrate’s doubt. To provide that “outstanding rent shall bear interest until payment at the current rate of interest chargeable by Banks in respect of the making of advances “is to provide something so impracticable as to be void for uncertainty. There are different banks and each bank makes different advances. It is common knowledge that they compete by offering different products and different interest rates on those products. It is common knowledge that depending on amounts outstanding these interest rates can vary from day to day. As presently advised I think it would be impossible for the NLTB to fix a rate in accordance with that provision. That claim also could be dismissed.

In respect of Question 3 the Magistrate has not been shown any authority or any contractual provision which entitles the NLTB to charge interest on unpaid fees, much less interest upon that interest. The only possible justification might be one that is related to the practice of the banks. However on the information before me there is no enforceable link between the practice of the NLTB and the practice of any bank or banks. That claim likewise could be dismissed.

Conclusion

Judgment may be entered for the rental in arrears. The Defendant agrees. An order for vacant possession is at the Magistrate’s discretion.

The Plaintiff has had ample time to justify its other claims by offering the argument and authorities on which the claims are based. If she thinks it appropriate the Magistrate may give a final opportunity for further submissions if any. The whole claim should then proceed to a decision which may be expressed as subject to this Court’s ruling on the above (or any other) questions of law, pursuant to S. 37 (above).

If the decision is made on the skeletal submissions already made, then clearly the Plaintiff has shown no authority in law in charging its administration fee. Nor has it shown any valid authority for assessing interest on outstanding rent. Neither it shown any authority for charging interest on unpaid fees.

D.D. Finnigan
JUDGE

At Lautoka
29 September 2005.