Chand v Prime Land Development Ltd [2005] FJHC 622; HBC0076.2005 (22 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0076 OF 2005

BETWEEN:

SUNIL CHAND
PLAINTIFF

AND:

PRIME LAND DEVELOPMENT LTD
DEFENDANT

Ms V. Patel for the Plaintiff
Mr H A Shah for the Defendant

Date of Hearing: 9 June 2005
Dates of Submissions: 16 June, 23 June, 30 June 2005
Date of Ruling: 22 July 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Defendant seeks by interlocutory application the answers to two questions which Counsel submits may resolve the substantive issue between the parties. The question is whether the Defendant is entitled to occupation of leased remises which the Plaintiff presently occupies pursuant to a Tenancy Agreement which prima-facie is null and void for lack of prior consent by the Director of Lands.

Mr Shah has filed a concise and persuasive submission which is well supported by full copies of all authorities upon which he relies. Ms Patel for the Plaintiff has filed no submissions. I presume she was served with notice of the interlocutory application. Nonetheless I am reluctant to accede to such an attractive argument without hearing the other side of the argument. Mr Shah’s authorities are impeccable for the propositions upon which he relies. In summary, these propositions amount to a principle that any dealing [of practically any sort] with Crown Land that does not have the consent of the Director of Lands obtained in advance is null, void, illegal and of no effect even to found any equitable claim.

There is however authority that might support a proposition that the illegality of the lease or tenancy agreement does not affect an estoppel or equity that operates solely inter-partes. The lessee or tenant may be able to establish a purely personal right which is outside the scope of the statutory requirement for prior consent under Section 13 of the Crown Lands Act Cap 132. See Maharaj –v- Chand [1986] 3 All ER 107 (PC) and Inwards –v- Baker [1965] EWCA Civ 4; [1965] 2 QB 29.

In an earlier interlocutory ruling on a motion by the Defendant to strike out the claim in this case I noted that the Plaintiff pleads a cause of action that sounds in equity, and may sound in contract as well if the Plaintiff can establish a contract separate from the tenancy agreement about the expenditure of money on the leased premises. He claims also compensation for money that he has spent on improvements and bases his claim in equity. The purpose of the interlocutory injunction which presently prevents the Defendant from evicting the Plaintiff is to preserve the improvements to the property which the Plaintiff claims he has made and for which he is seeking redress if he is evicted. I noted in that ruling also that the Plaintiff may even go so far as to challenge the Defendant’s action in entering into the tenancy agreement without first obtaining the necessary consent.

In that ruling I listed the action for 13 May so that it could be timetabled for a hearing. On that day Ms Patel did not appear, Mr Shah did, and that was when this interlocutory application originated. It was listed for hearing again on 20 May to set a hearing date for the interlocutory application and again Ms Patel did not appear.

I now list it again for 9.00am on Friday 29 July 2005 so that Ms Patel may appear and advise whether she wishes to file submissions in reply on this interlocutory motion. The opportunity of a reasonably early hearing has now been lost and the best that can be promised for a hearing is a listing in the callover on 25 November 2005 when a hearing date will be allocated.

There is no order for costs at this stage.

D.D. Finnigan
JUDGE

At Lautoka
22 July 2005