Wati v Native Land Trust Board [2008] FJHC 190; Civil Appeal 002.2008 (2 September 2008)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: 002 OF 2008

BETWEEN:

MAINA WATI
f/n Ganga Prasad
Appellant

AND:

NATIVE LAND TRUST BOARD
Respondent

Mr. A. Sen for Appellant
Mr. H. Robinson for Respondent

Date of Hearing: 24th July 2008
Date of Judgment: 2nd September 2008

JUDGMENT

[1] This is an appeal against the decision of Labasa Resident Magistrate Anare Tuilevuka delivered on 21st September 2007 wherein he concluded as follows:

"The plaintiff has not proven her special damages of $9,000 to my satisfaction.

Compensation for loss of dwelling constructed during the term of an ALTA lease should be brought under section 40 of ALTA. I have no jurisdiction.

The Defendant is to refund to the plaintiff the sum of $2,796. I see no reason why interest should not be awarded on this sum – and I do so award at 5% as from date of payment to NLTB to date of judgment. I also award costs which I summarily assess at $350.00"

The Statement of Claim:

The appellant was the plaintiff in the Magistrate’s Court and I shall call her plaintiff in this judgment. I will call the respondent as defendant. The plaintiff had been offered a tenancy over residential land having an area of 0.1012 hectares for a period of 50 years from 1st January 2002. She accepted the offer and paid a consideration of $2,796.00. There was an existing residential dwelling on the said land which she states she improved. In December 2002 she was asked by the defendant to vacate the property. She vacated the property sometime in 2004.

The plaintiff’s cause of action is in negligence. The particulars of negligence were that the land given to the plaintiff had already been leased to one Isireli Tamani Tuiwawa. Therefore the defendant should not have re-leased the land to the plaintiff. The plaintiff claimed $14,000.00 for improvements done by her and leasehold market value of the land.

Power of attorney:

Only one witness, the plaintiff’s son, testified. The son’s name is Satendra Prasad. The son probably testified on the basis of a power of attorney. However the donor of power of attorney is shown as Maina Wati as administratrix in the estate of Girja Prasad. It is not given by her in her personal capacity. The action is begun by Maina Wati in her personal capacity and not as administratrix. This fact seemed to have escaped the attention of the counsels.

Lease: Was there a lease?

The Property Law Act Cap 130 states that a lease includes an agreement for a lease. Even though the plaintiff was not issued a formal lease or an approval notice, there were sufficient details on the offer letter to meet the essential terms of lease namely the names of the parties, the term of lease, rental and area. The defendant had requested for the payment of $2,976.00 and which sum was paid. Here the plaintiff had entered the land and taken possession of it.

However, that is not the end of the matter here. The basis of plaintiff’s action is negligence in that the NLTB having earlier granted a lease to another person over the same land, then proceeded to grant a lease to the plaintiff over the same piece of land. While that is clearly negligent because it shows the defendant had not checked its records, but it nevertheless raises the issue – what did the plaintiff get? How can there be two concurrent leases to two different persons? The Magistrate’s Court was not told what was the term of lease over the same law issued to Isireli Tamani Tuiwawa.

However Tuiwawa had acquired an interest in the land. Once an interest in the land or chattels is effectively acquired, the right of property can only be lost by some unequivocal act of alienation by the lessee or forfeiture by the owner. Hence the NLTB could pass no interest in the land to the plaintiff as long as the interest of Tuiwawa subsisted. In view of that the market value of lease to the plaintiff was nil.

Damages:

The plaintiff had limited her claim to $14,000.00 to within the jurisdiction of the court. This sum of $14,000.00 special damages is prayed for. There is no breakdown given of these special damages. There is no prayer for refund of $2,796.00 in the statement of claim even though the learned Magistrate did order refund.

Special damages:

Whenever a plaintiff has suffered special damages, they must be alleged in the statement of claim with all necessary particulars and the plaintiff is not allowed at the trial to give evidence of any special damage which is not claimed explicitly in his statement of claim in particulars: Hayward v. Pullinger & Partners Ltd – 1950 1 ALL ER 591. Special damages in the form of monetary loss must be pleaded and particularized, otherwise it cannot be recovered: Ilkiw v. Samuels - 1963 1 WLR 991.

Odgers in Principles of Pleading and Practice in Civil Actions 22nd edition at page 170 states that special damages must "always be explicitly claimed on the pleadings, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant’s conduct".

The approach in Magistrate’s Court:

The learned Magistrate at paragraphs 21 to 23 of his judgment looked at authorities which state that the plaintiff needed to provide particulars of special damages in his pleadings and the need to satisfy the court about extent of the damages.

Then at paragraph 24 he proceeded to consider the plaintiff’s claim that she spent $9,000.00 on renovations to the house. He states that there was no room for him to infer that the plaintiff did in fact spend $9,000.00 on renovation. He was not satisfied by bare assertions of the plaintiff that $9,000.00 had been spent on renovations. He reasoned that the plaintiff should have produced receipts or dockets for purchase of material. If he had lost receipts, he could get witnesses like the supplier or someone from the neighbourhood to say works were done or the contractor or carpenter who carried out the works.

The plaintiff bears the onus of proving on the balance of probabilities that he/she suffered the particular losses claimed and the extent of such damages. In short the plaintiff must persuade the primary court on balance of probability both the fact of damages and the dollar value of those losses. Where precise evidence is available, then a court expects a plaintiff to produce it.

The learned Magistrate was quite correct in commenting the need for supportive evidence because of the nature of the case and further such evidence could have been obtained.

In an obiter remark the learned Magistrate referred to a valuation report. He stated that it may be relevant for a compensation claim under the Agricultural Landlord & Tenant Act. This remark is unfortunate but in no way it affected the final conclusions he reached. It may have been the result of Valuer’s comments early in his report that the agricultural lease number 19111 expired on 31st December 2000.

Conclusion:

I conclude therefore that in view of the fact that there was already a lease in existence, no further lease could be granted. While grant of such lease is negligent, it conferred no interest in the land on the plaintiff hence there was no market value of the lease. Secondly I agree with the learned Magistrate that the plaintiff has not provided sufficient details of her expenditure of $9,000.00. I therefore dismiss the appeal with costs summarily fixed in the sum of $500.00 to be paid in fourteen (14) days.

Final Orders:

Appeal dismissed with costs of $500.00 to be paid in fourteen (14) days.

[Jiten Singh]
JUDGE

At Suva
2nd September 2008