Lal v Native Land Trust Board [2008] FJHC 296; HBC230.2000L (11 July 2008)

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Appearances: Messrs. Mishra Prakash & Associates for the Plaintiff
Messrs Vuataki Qoro & Co. for the Defendants

[1] This is the plaintiff’s claim for damages and compensation for breach of contract, breach of statutory duty, trespass and unlawful conversion and detention of goods.

[2] The plaintiff claimed that he was the lessee of approximately 13 acres of native land known as NLTB No. 4/10/3877 Solovi in the Tikina of Nawaka, (the land), which was covered by cane contract no. 2286, for 20 years from 1 January 1981. He claimed that he had purchased the remaining period and interest in the lease from Subhaga Devi with the consent of the NLTB which was granted on 22 August 1985. He claimed that he was entitled to a 20 year extension from the expiry of 20 years from 1 January 2001 under the Agriculture and Landlord Tenant Act (Cap 270) (ALTA).

[3] The plaintiff claimed that after having been evicted from the land on at least two occasions he was able to resume possession of the land with the assistance of the NLTB. Thereafter he alleged that the NLTB had not upheld his entitlement, in breach of its contractual and statutory obligations as landlord and despite having knowledge of the his occupation of 13 acres, sought to maintain that his lease and entitlement was only in respect of 3 acres of land. He claimed that the NLTB wrongfully and in breach of his entitlement and rights tried to terminate his tenancy by a Notice dated 30 June 2000 which also demanded compensation in the sum of $35,000.00. He alleged that the NLTB refused to give him his full entitlement under ALTA and was in breach of the provisions of ALTA.

[4] The plaintiff claimed that he paid $47,000.00 for the lease of 13 acres which he purchased in 1986 and subsequently renovated and extended a large four-bedroom house on the property. He alleged that there were two well-built and equipped labourers’ quarters on the property and he built a ‘bulk’ as well. He claimed that the improvements cost $111,194.00 and $10,410.00 was expended for internal laundry and storage facility.

[5] He alleged that as a result of the NLTB refusing to recognize his rights and lease over 13 acres, the 2nd defendants had occupied and trespassed onto the his lease, premises, property and chattels. He claimed that as a result of the actions of the NLTB, he lost cultivation of a sugar cane crop for three years and particularized his losses at $40.00 per tonne x 450 tonnes for three years totaling $54,000.00. Other farm losses allegedly from fruit bearing and seasonal fruit trees, vegetable plants and flower gardens were totaled $19,800.00 per annum. He allegedly lost his farming implements which he valued at $7,361.00.

[6] He alleged that the actions of the NLTB constituted a trespass, a detention and/or conversion of his goods. He obtained an injunction restraining the NLTB from interfering with his possession of the said property. He claimed that the NLTB had refused and/or neglected to obey the order. He claimed damages for breach of contract and/or statute and/or trespass and loss of production opportunity. He also claimed damages for mesne profits for the period which he claimed to have been deprived of occupation of the property.

[7] The 2nd defendants were sued personally and in their alleged representative capacity as the head of and/or members of the Mataqali Bua, Tokatoka Vuniboiboi. The plaintiff alleged that the 2nd defendants had from time to time during the currency of the lease interfered with the possession and occupation of land leased by the plaintiff and had taken over the land and houses contained within the property maintaining that the plaintiff’s lease had expired or that he was only entitled to 3 acres. He alleged that the 2nd defendants evicted him from the said land on at least two occasions. He claimed that his access to the property had been blocked by the 2nd defendants and that he had been deprived of the possession and use of his joinery plant and machines, carpentry and construction equipment which were in his premises.

[8] He claimed that the 2nd defendants had installed two signs on the property stating that trespassers were not allowed entry and had evicted him. He claimed that the 2nd defendants had interfered with the his possession and cultivation of his 13 acres of land and had on several occasions harassed him and his family over a period of several years and had disturbed his quiet and peaceful occupation of the land. He claimed that the 2nd defendants had occupied and trespassed on the plaintiff’s property and had rented the plaintiff’s property to other tenants. The same losses for which the NLTB is allegedly liable for have been claimed against the 2nd defendants.

[9] The NLTB denied that the plaintiff was the lessee of approximately 13 acres of Native Land, as claimed. It stated that only 3 acres of land known as Solovi C/N 2286 had been leased to the plaintiff. The NLTB alleged that it was the plaintiff’s duty as purchaser to check the title of the land before buying it. The NLTB alleged that the predecessor in title, Subhaga Devi was issued with a tenancy at will by the NLTB over an area of 3 acres on 6 January 1977 with effect from 1 January 1971 at a rental of $75.00 per annum which was re-assessed on 26 August 1980. A condition of the tenancy was that it was not transferable and that no building whatsoever was to be erected on the said land.

[10] The NLTB stated that the tenancy at will expired on 1 January 1981 and was extended for a further term of 20 years under ALTA on 17 September 1982 with effect from 1 January 1981 and the conditions of the tenancy at will remained in force. The rent was re-assessed and increased to $126.00 in 1986. The NLTB stated that in 1986 the land was bought by the plaintiff. The NLTB claimed that on 2 April 1986 it mistakenly consented to 13 acres instead of 3 acres in respect of that transaction. The rent was re-assessed and increased to $240.00 in 1991 and $355.00 in 1985. Further that the tenancy expired on 31 December 2000 and as a consequence the plaintiff had no leasehold interest in the said land. The claim that the plaintiff purchased 13 acres from Subhaga Devi was denied on the basis that Ms Devi leased only 3 acres of land from the NLTB. The consent to 13 acres was pleaded as a mistake in that the NLTB could not have consented to lease land that ‘it did not have’, given that Ms Devi’s tenancy at will was only in respect of 3 acres and not 13 acres.

[11] The claim that the plaintiff was entitled to a 20 year extension from 1 January 2001 was denied. The NLTB denied that the plaintiff was entitled to a statutory extension of 20 years, given that the tenancy at will which expired on 1 January 1981 was already the subject to a statutory extension of 20 years under ALTA from 1 January 1981. The NLTB stated that the tenancy expired on 31 December 2000. It denied that it assisted or advised the 2nd defendants to interfere with the plaintiff’s possession and occupation of the said land. It admits that it had attended meetings with the plaintiff and the 2nd defendants to resolve their differences and had advised the plaintiff to take legal action to restrain the 2nd defendants from evicting him.

[12] The allegations of breach of contract and statutory obligations were denied. Further that the notice referred to in paragraph 6(b) of the plaintiff’s statement of claim was a notice pursuant to Section 41 of ALTA claiming compensation for damage on the land allegedly by the plaintiff. The alleged improvements claimed by the plaintiff were denied and the NLTB stated that these improvements were illegal and in breach of the conditions of the tenancy at will dated 6 January 1977 and the provisions of ALTA because the plaintiff did not obtain the prior written consent in writing of the NLTB before erecting the said improvements. In respect of the alleged losses concerning the lost sugar-cane crop and other farm losses, each was specifically denied and the plaintiff was put to strict proof of the various losses claimed. The allegations of trespass and/or conversion and/or unlawful detention of the plaintiff’s chattels were also denied. The NLTB stated that any equitable or legal interest which the plaintiff claimed to have in the land had expired and was not renewed for any further term. It also denied that it was vicariously or jointly liable for any tortuous act claimed against the 2nd defendants or any other landowner for that matter.

[13] The named 2nd defendants admit to being members of the named landowning units. They denied that the plaintiff had purchased 13 acres of land from Subhaga Devi as the acreage of land sold could only have been 3 acres. They denied that the plaintiff was entitled to a 20 years statutory extension, there having already been such extension accorded in 1981. Alternatively that the plaintiff was not entitled to any such extension having damaged the top soil of Mataqali Bua’s adjoining land and had owed rent arrears. The allegation of interference with possession and occupation was denied. The 2nd defendants stated that one member of the Mataqali went onto the land during the currency of the lease to ask the plaintiff to reduce the rental being charged to a family member from $700.00 to $400.00 per month. The plaintiff’s claim of unlawful eviction was denied. The 2nd defendants maintain that they went onto the land after expiry of the plaintiff’s lease and had only held discussions with the plaintiff on the land and had not forcefully caused the plaintiff to leave the land. They denied blocking the plaintiff’s access to premises he occupied, or putting signs up on the land or harassing the plaintiff and his family. They claimed a lien on the plaintiff’s tools until he pays damages for damage caused to the Mataqali lands.

[14] The 2nd defendants asserted that the plaintiff had rented out the 4-bedroom house and the labourer’s quarters built by him. They required strict proof of the improvements claimed and strict proof of the NLTB’s written consent to such improvements. They admitted taking ‘some tools’ but denied taking any chattels including furnishings and fittings from the expired leased land. They stated that after expiry of the 3-acre lease they took over the property on the land which they asserted became part of the land and which belonged to the Mataqali on expiry of the lease. The various allegations of loss and damage claimed by the plaintiff were denied and the plaintiff was put to strict proof of the claims made.

[15] By way of counter-claim the 2nd defendants alleged that the plaintiff trespassed onto 10 acres of Mataqali Bua’s lands adjoining the plaintiff’s lease and had unlawfully planted cane thereon and unjustly enriched himself from 1987 to 1994. Further that in or about 1999 the plaintiff removed top soil from the land leaving soapstone exposed to sun and rain resulting in the loss of use of the land for agricultural purposes. They claimed to have suffered pain and suffering for desecration of their ancestral lands and sought general and aggravated damages against the plaintiff.

[16] As against the NLTB, the plaintiff asserted that the NLTB was estopped due to its conduct from pleading mistake in that it knew through its surveyors that these were CSR reverted leases, that it was creating new tenancies in CSR reverted leases and was aware that these tenancies would fall under the provisions of ALTA and having consented to the transfer of the 13 acres on 22 August 1985 and 30 April 1986. Further that it consented to the transfer of 13 acres of land on 30 April 1986 by accepting a certificate of assignment dated 6 August 1986 in respect of 13 acres signed by the plaintiff as purchaser and the vendor. The plaintiff also maintained that the NLTB having inspected the land with a surveyor named D. S. Prasad was aware and had confirmed that the whole area of 13 acres was Native Land on or about 19 May 1988.

[17] The plaintiff denied both defendants’ claims that the top soil was damaged or that he had caused any damage to the land as pleaded by the 2nd defendants. The plaintiff denied that the improvements he claimed to have effected was illegal and that the NLTB was aware of the buildings when the previous lessee was in occupation and by its conduct was estopped from pleading illegality.

[18] The essence of the claim is premised on the contention that in failing to uphold the plaintiff’s alleged entitlement to 13 acres of land, the NLTB breached its contractual obligations as landlord. Further that the landlord and tenancy relationship was breached in that the plaintiff had not been compensated for his house and property in accordance with ALTA. The third aspect of the alleged breach of the landlord/tenant relationship claim is that the plaintiff was not accorded the full period of the lease that he was entitled to.

[19] As a starting point in determining whether the NLTB is liable for breach of contract, what must be ascertained are the terms of the relevant contract governing the landlord/tenant relationship between the parties. It is trite law that no one can give that which she has not, that no one can transfer a greater right or interest than she herself possesses (i.e. no one can give a better title than she has) – the maxim nemo dat quod non habet.

[20] On 23 September 1970 Ms Devi made an application to lease native land. The document is numbered 1 in the NLTB’s bundle of documents which were produced as Defence exhibits D3(1) to D3(84). For ease of reference I will refer to the defendant’s exhibits as numbered in its bundle of documents. D1 is an application for a new lease over 3 acres of land (it appears that 10 acres was originally applied for and was altered to 3 acres) in Solovi, Nawaka for agricultural purposes. D4 shows that there was a recommendation to approve the application over 3 acres of land, as a Tenancy at Will (TAW) for ten years with effect from 1 January 1971. By letter to Ms Devi dated 19 August 1971, D5, she was informed that a lease/tenancy had been provisionally approved over Native Land known as Solovi C/N 2286 NLTB No. 4/10/3877 in the tikina of Nawaka for a period of ten years commencing on 1 January 1971 at the estimated rental (pending survey) of $75.00 per annum. She was informed to pay fees before receiving an approval notice and was informed that she was not to occupy the land provisionally approved for lease until the fees had been paid. An Inspection Report, D2, stated that by 23 September 1970 Ms Devi and her family were already occupying the land. She had as at 1 January 1971 acquired the rights of occupation and use as a tenant at will and had been paying the prescribed rental. Under Section 6(a) of ALTA, the term of her tenancy had started to run from 1 January 1971 for a term of ten years, the approval creating a contract of tenancy (the contract of tenancy) after the commencement of ALTA but before the commencement of the Agricultural Landlord and Tenant (Amendment) Act, (ALTA (Amendment) Act. There was no evidence led that the contract of tenancy was terminated at any time prior to the expiry of its 10 year term in January 1981. As will be discussed later, the parties treated the initial 10 year term as expiring in January 1981 and both the plaintiff and the NLTB treated and dealt with the 20 year extension granted from 1981 as the tenancy having been extended for a further term of 20 years.

[21] Six years later, on 6 January 1977 the terms of the contract of tenancy were documented by the issuance of an Instrument of Tenancy, D7. An earlier Instrument of Tenancy, D6, apparently confirmed by a quorum of the Board on 17 March 1972 was cancelled by the issuance of D7. D7 could not have created a new contract of tenancy. It merely formalized the contract of tenancy which had subsisted from 1971 by evidencing the terms in an instrument in writing which was a requirement under section 8 of ALTA.

"Provided that the aforesaid farm basic allotment and farm harvest quotas shall be adjusted by the Sugar Board as the relevant land reverts to native owners".

[23] The contract of tenancy was subject to the provisions of ALTA, being in respect of agricultural land which did not fall within the exceptions contained in section 3 of the Act. Ms Devi was never granted a registrable lease. She was never granted any other instrument of title over the subject land. She was never granted any lease or tenancy over 13 acres of land in the subject area. Her rights to occupy and use the subject land were confined to the terms her contract of tenancy evidenced by Instrument of Tenancy which was issued in her favour over 3 acres only. Pursuant to Section 6(a) of ALTA any contract of tenancy created after the commencement of the Act but before the commencement of the ALTA (Amendment) Act 1976 shall be deemed to be a contract of tenancy for a term of not less than ten years. Furthermore under Section 7, no contract of tenancy of any agricultural land subsisting at the time of the commencement of the Act shall be terminated by the landlord within the term fixed by such contract or during an extension granted in accordance with the provisions of the Act. Ms Devi’s instrument of tenancy took effect from 1 January 1971, the date of the commencement of her tenancy. This is reflected in D7 where the rent of $75.00 per annum was expressly stated as effective from 1 January 1971. The initial contract of tenancy was never cancelled and the term of ten years imposed by ALTA was still operational and valid and it was treated as the applicable agreement when the Instrument of Tenancy was made. The initial term contract of tenancy expired on 1 January 1981 and was acted on as having so expired by both parties.

[24] By letter dated 17 September 1982, D25, Ms Devi was granted an extension of her contract of tenancy under Section 13(1) of ALTA. The extension letter provided as follows:

I am pleased to notify you that, as you have now paid your premium of $75.00, the Native Land Trust Board has granted an extension of your tenancy in respect of the Agricultural Holding known as SOLOVI C/N 2286 in the District of Nawaka Area 3A.0R.00P. NLTB No. 4/10/3877 Term: T.A.W from 1 January 1971 for a further period of twenty years, as from 1 January 1981, at a rental of $75.00 per annum subject to reassessment in accordance with Agricultural Landlord and Tenant Act.

Please note that the covenants, conditions and restrictions contained or implied in the said contract of tenancy evidenced by the (tenancy-at-will) dated 6 January 1977 remain in force insofar as they are applicable and, in addition, you will be required to pay a further premium of one year’s rent on the first day of the eleventh year of this extension, in accordance with the provisions of the Act above referred to.

[25] Under Section 13(1) of ALTA a tenant holding under a contract of tenancy shall be entitled to be granted a single extension of the contract of tenancy for a period of twenty years. Ms Devi was accorded the statutory extension in respect of the 3 acres of land she held pursuant to her contract of tenancy in Solovi on land bearing NLTB reference no. 4/10/3877. She was notified that the conditions and restrictions contained in the contract of tenancy evidenced by the Instrument dated 6 January 1977 remained in force insofar as they were applicable. She could only have conveyed and/or assigned to the plaintiff her legal entitlements/interest in the land assigned. At the time she purported to assign 13 acres of land to the plaintiff, she held a contract of tenancy over only 3 acres of land and not 13 acres of land. She could only have disposed of the interest in the land that she held, and no more than that. She only held an interest of 3 acres, with a remaining balance term of fourteen years to run at the time of the purported assignment.

[26] It is apparent from the documentary evidence produced that the NLTB’s records concerning the subject land refer to the acreage as being both 3 acres and 13 acres. The following documents show 3 acres:

(i) D1	Application to lease Native Land	23/9/70
(ii) D2	Inspector Report	23/9/70
(iii) D4	Precise and Recommendation	24/2/71
(iv) D5	NLTB letter to Devi	19/8/71
(v) D7	T.A.W	6/1/77
(vi) D9	Reassessment of rent	26/8/80
(vii) D16	Sales and Analysis	Undated
(viii) D18	NLTB Survey Instructions	28/7/86
(ix) D20 & 21	Application for consent to mortgage	6/10/86
(x) D22	Statistical Information Sheet	Undated
(xi) D23	NLTB File Note	19/5/88
(xii) D24	Application to lease Native Land	19/3/81
(xiii) D25	T.A.W	17/9/82
(xiv) D26	Notice under Section 37 ALTA	16/3/92
(xv) D27	Notice of re-assessment	26/8/85
(xvi) D28	Re-assessment Inspection report	30/8/85
(xvii) D31	Notice of re-assessment of rent [accepted by Devi on 30/8/85]	10/9/85
(xviii) D34	Notice of re-assessment of rent [accepted by the plaintiff who was by then the tenant on 27/6/91]	17/7/90
(xix) D36	Land History Card	Undated
(xx) D45	NLTB letter	27/4/98
(xxi)	NLTB letter	30/7/98

(i) P6	Original application for consent to assign	26/6/85
(ii) D2	Inspection Report (although crossed out)	23/9/70
(iii) D15	Survey Instructions	17/6/86
(iv) D22	Statistical Information Sheet	Undated
(v) P11	Memorandum of Mortgage An attached application for consent to mortgage	23/8/91
vi) P1	Transfer	22/7/86
vii) P2	Re-assessment of rent	9/8/95

[28] It is apparent from the totality of the evidence that the consent to the assignment was made under a common mistake as to title. Ms Devi could not have assigned an additional 10 acres in respect of land over which she held no legal interest. Her prior use of the additional 10 acres of land to cultivate cane was done without any contract of tenancy or any other instrument of title, lawfully authorizing her to do so. Notwithstanding that the subject 10 acres may have been a former C.S.R lease which reverted to Native Reserve, she could only have a legitimate claim to her use of it if she held an instrument of title over this land. This land was never leased to her by the NLTB. She could not have assigned to the plaintiff a greater right or interest than what she herself possessed at the time. She could not have assigned a better title than what she had. A consent to transfer or take delivery of something not existent is deemed useless, the consent is nullified.[1] The inescapable conclusion from the totality of the evidence is that the description of the area of the land expressed to be 13 acres in the application for consent to assign, was wrongly expressed in the document, given that Ms Devi was not a tenant nor did she ever hold any legal interest over 13 acres of land. As such she did not have any legal interest in 13 acres of land capable of being lawfully assigned to the plaintiff. She could only have assigned the 3 acres, what she held under the contract of tenancy. The NLTB consent endorsed on both the subsequent transfer and Westpac mortgage suffer the same fate. They both purported to assign interests in land without foundation.

[29] The plaintiff could not have bought 13 acres of a lease from Ms Devi as has been submitted. Ms Devi could not have assigned or sold more than she had.

Whether the 1st defendant is entitled to plead mistake and whether by conduct it is estopped from pleading or relying on mistake?

[30] In Cheta v The Attorney General[2], Justice Palmer set out the principles to be considered as follows:

"Furthermore, it is a well established rule that in the case of estoppel by conduct, which is what is alleged here, that "where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time" and the person is deemed to act willfully "if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it." See Phipson on Evidence 12th Edition, paragraph 2141. Although an estoppel by conduct may arise even from an unture representation of fact made mistakenly it is an essential element that there must be an intention, or conduct raising a reasonable presumption thereof, that the injured party was meant to act upon the representation as true, and the partly relying on the representation must have acted on it to his detriment."

[31] I have upheld the 1st defendant’s submission in this regard. The NLTB merely consented to the offending application to assign. The form was not prepared by the NLTB. It was prepared by the solicitor who represented the plaintiff at the time and the vendor as well. As confirmed by the plaintiff himself in his testimony, he was told by the vendor that the area owned by her was 13 acres. I found that his testimony regarding his knowledge or the lack thereof in regard to the acreage being assigned as far-fetched and uncandid. He testified that he had never asked the vendor’s son Vijend who was handling the transaction on behalf of his mother, Ms Devi, to have a look at her lease documentation. He said that he never talked to his then solicitor Mr. Shankar. He said he never asked Mr. Shankar to show him the lease he was buying. He said that he relied on his solicitor to check on the acreage. He said Vijend told him it was 13 acres and he believed him. He said that he never saw the lease nor did he ask Mr. Shankar to give him a copy of the lease. The plaintiff impressed me as a sincere and astute person but in regard to his testimony on this issue, I found lacking in forthrightness and credibility. The initial misrepresentation as to acreage was not the doing of the NLTB. The fault lay with the vendor and with the plaintiff himself for failing to undertake, as he professed, the necessary inquiries of the interest in land he was purchasing. I was far from convinced by his testimony that he took no steps to satisfy himself of the acreage he was purchasing. The evidence has established that by 11 June 1986 Mr. Lal was aware that the area assigned to him was only 3 acres. He applied for consent to mortgage the said land, D21, and in that document the area of land stated was 3 acres. He suggested that his solicitor may have inserted 3 acres by mistake. I was not convinced. He agreed that the witnessing solicitor explained the contents of this document to him before he signed it. The more likely scenario given the relationship that the plaintiff had with Ms Devi who was his mother-in-law, is that he was well aware from the outset that the interest land he was purchasing consisted of only 3 acres of land. He had deliberately closed his mind to the fact that the additional 10 acres of land, which was a former CSR lease and which had been cultivated by his mother-in-law, was not land in which she held a valid legal interest capable of assignment or transfer. He had also subsequently accepted the NLTB’s re-assessments of rent over 3 acres of land only. In the circumstances the NLTB was entitled to plead mistake and was not estopped from relying on such mistake. Its defence in this regard succeeds.

[32] I have considered these issues in paragraphs [19] to [28]. The plaintiff’s submissions do not adequately deal with the consequences of the initial contract of tenancy granted to the plaintiff in 1971. It was clearly a tenancy which fell within section 6(a) of ALTA. As a consequence the vendor was entitled to a 20 year extension from 1 January 1981 which was granted. The plaintiff had at all times accepted that the statutory extension had extended the tenancy from 1981. This is clear from his application for consent to assign dated 26 June 1985, the principal document upon which he relied, wherein the term of the lease being assigned was stated as 20 years from 1 January 1981. This term was also endorsed on his application for consent to mortgage which he signed on 23 July 1991. He had also in his affidavit herein sworn on 14 July 2000 at paragraph 34 (ii) deposed that his lease was to expire on 31 December 2000. These documents established that he was well aware and had accepted that what he had purchased was the remaining term of the tenancy which had been extended by the NLTB in 1981. The submissions made on section 6 of ALTA were not consistent with what the plaintiff had pleaded that ‘he was the lessee of land for 20 years from 1981’. And while relying on this application for consent to support the argument that the land assigned was 13 acres, what was ignored completely was the term of the interest being assigned. The plaintiff was not entitled to a further statutory extension of 20 years as claimed. ALTA makes it clear that a single extension of the contract of tenancy for a period of 20 years was what was required and which was granted by the NLTB. I find that the NLTB did not breach its contractual or statutory obligations in the manner pleaded by the plaintiff, further that the plaintiff was not entitled to an extension of the tenancy for 20 years from 1 January 2001. In respect the plaintiff’s claim that the NLTB had breached its statutory obligation to provide the plaintiff with a 12 month grace period upon termination of the tenancy, I have concluded that the plaintiff having not satisfied the provisions of section 9(1)(f)(ii) in that at the relevant time he had not paid rent for several years and had also failed to observe the conditions of his tenancy in failing to obtain consent for improvements and in renting out a portion of his properties, was not entitled to the protection afforded by section 9(1)(f)(ii). At the time of termination of his tenancy by the NLTB’s letter of 30 June 2000, the plaintiff was in fundamental breach of his tenancy contract, and in the circumstances had not met the pre-requisites entitling him to the benefit of section 9(1)(f)(ii).

Compensation and whether the written consent of the NLTB was required prior to improvements being made

[33] In his affidavit of 14 July 2000 the plaintiff stated that he had renovated and partially constructed a large dwelling house of concrete wood and iron 64 feet by 52 feet with 4 bedrooms, kitchen, lounge with all facilities, built with two labourers quarters, a chicken shed 3.6 metres by 3 metres, a bulk 20 feet by 12 feet all valued at $120,000.00. In P8, is a summary of costs and damages in respect of the building, other improvements on the land, fruit-bearing trees and vegetables planted, household contents and chattels, stock on site and farm implements. The total estimate of loss given is $475,967.00. In submissions the summary of damages sought against the NLTB inclusive of interest was $362,399.40 and against the 2nd defendants $349,356.80. Excluding interest the total damages sought against both defendants totaled $523,353.20 and inclusive of interest the total award sought was $711,759.20. The bulk of the compensation sought is pursuant to Section 40 of ALTA. The plaintiff’s submissions re-enforce this.

Provided that the tenant shall not be entitled to obtain compensation unless the consent or notice required to be obtained or given as specified in the schedule has been so obtained or given and unless the tenant has, where requested by the landlord, served upon the landlord, within one month of the completion of the improvement, notice informing him of such completion."

[35] The plaintiff submitted that the NLTB had failed to prove that he had not obtained the requisite consent of the NLTB for improvements on the land. The plaintiff’s own testimony proved that consent was neither obtained nor granted. He testified in cross-examination that he did not obtain the NLTB’s consent for the improvements made on the land. No further proof of the lack of consent was required. In any event Mr. Kiso of NLTB confirmed that in this case the plaintiff did not submit any plans to NLTB for approval. He testified that there was no approval for any improvements by the plaintiff. Mr. Kiso’s testimony in this regard was not seriously challenged. The schedule referred to in Section 40 specifies that the prior written consent in writing of the landlord is required for:

[36] Section 40 is a complete bar to the entitlement to compensation if the consent of the landlord was not obtained or given prior to effecting any improvements listed in the schedule. The plaintiff having not taken steps to obtain the requisite consent is not entitled to the compensation claimed. He is not entitled to $160,000.00 being the claimed market value of the main house as valued by Grace Valuations, nor the other costs of improving the property listed in the second paragraph of P8 valued in the sum of $10,000.00, nor for the fruit-bearing trees which he valued at $8,000.00. Whether or not the NLTB was aware of the improvements made does not constitute consent for the purposes of Section 40. His claim to entitlement under Section 40 of ALTA wholly fails for lack of consent required by the proviso to Section 40.

[37] His claim for the land value of 13 acres at $3,000.00 an acre totaling $39,000.00 also fails because he was never entitled to 13 acres in the first place. There is also no evidence before me of the land value at the relevant time. There is also the issue, which was not addressed, as to whether the 10 acres of land, which was a former CSR lease reverted to Native Reserve, came within the ambit of ALTA. His claim to traveling costs in the sum of $35,300.00 also fails for lack of proof of this head of damages which are special damages and which are required to be strictly proved. The plaintiff’s testimony on its own does not suffice. The claim of $150,000.00 for loss of cane proceeds for 10 years at a net income of $12,000.00 to $15,000.00 per year has also not been sufficiently proved. The FSC records showed that the income derived from cane were proceeds that were to a large extent paid to Ms Devi and not to the plaintiff. The records also showed that there had been a significant reduction in the tonnage of cane cultivated on the land from 1994 and no production from 1996 until expiry of the lease. The records did not show a net income of $15,000.00 per year as claimed. If the plaintiff earned this amount of money from cane proceeds alone, surely his tax records could have very easily been produced to prove the net incomes that he claimed per annum from cane proceeds and vegetable farming. This claim is also premised on the proposition that the plaintiff was the lawful lessee of 13 acres of land and that he was entitled to cultivate 13 acres of land. I have found that he was not the lawful lessee of 13 acres of land. His losses could only have been claimed over cane cultivated on 3 acres only. There being no sufficient proof of these alleged losses, these claims also fail.

[38] In his affidavit sworn on 19 January 2001 the plaintiff disclosed that there was a prior High Court civil action in respect of his dealing with his mother-in-law namely civil action no. 106 of 2002. The plaintiff deposed on oath that "problems resulted in an action against her". That was not correct. The action was filed against the plaintiff. He deposed in affidavits in the earlier action, in particular, an affidavit sworn on 2 December 1996, that he faced enormous difficulties managing and cultivating the farm. No mention whatsoever was made about problems caused by the landowners. The difficulties which he deposed to earlier differed from his claim in this action. I must express my serious concerns that the earlier action was not drawn to my attention by counsel in the course of the hearing of these proceedings. There are documents contained in the earlier action e.g. the sale and purchase agreement, which was not produced in these proceedings. However because the plaintiff was not cross-examined on his affidavits filed in action no. 106/92 I have not taken into account his earlier depositions.

[39] I also have serious reservations about the reliability of the valuation produced by the plaintiff. Ms Cavalevu, the Valuer did not inspect the property. She testified that she relied on what she saw from the road in arriving at her various assessments. The valuation was prepared for mortgage security purposes. I found the comparison with residential leases and properties to be an unsound comparison for the purposes of valuing a residence on an expired agriculture lease. Of critical importance is that no regard appears to have been given to the relevant valuation principles applicable on an assessment of compensation under section 40 of ALTA. She was told that the property was six years old and relied on this and based her assessment on this supposed fact when the evidence has shown that the main house was constructed in the early 1970s. She worked solely on information provided to her by the plaintiff on when and how he built the house and other fixtures. She did not make arrangements with NLTB for an inspection inside the property to make a proper assessment including fair wear and tear. She did not check the chattels. As a consequence of the short-comings I have treated her report with caution.

[40] The valuation of the chattels was based solely on the plaintiff’s own assessment. There was no attempt made to obtain comparable prices of the items on the market, either new or second-hand. The plaintiff had records of at least the labour component of the furniture he manufactured but did not produce these records. The compensation amount claimed in respect of chattels and farm and carpentry implements has not been adequately proved to the required standard of proof.

[41] The plaintiff’s evidence in this regard was unchallenged. The 2nd defendants did not testify or attend the hearing of this case. No explanation was given for their absence. I have accepted the plaintiff’s evidence that two days following the service on him of the NLTB’s notice to quit dated Friday 30 June 2000, the 2nd defendants directly interfered with the possession of his land (the property contained within the 3 acres of his tenancy) without lawful justification. The 2nd defendants directly entered upon the land and remained on the land. It was an unjustifiable intrusion while the plaintiff was still entitled to possession. His contract of tenancy still had six months to run, the expiry date being 31 December 2000. The plaintiff has established that he had suffered actual damages in that he was prevented from removing his chattels and personal effects stored on the property. There was immediate interference from the 2nd defendants by entering onto the land without the plaintiff’s permission. They had also placed a notice at the entrance to the property warning against "trespassers". From the plaintiff’s testimony it was clear that by the first week of July 2000 he could not enter his property. On 14 July 2000 he obtained a Court Order restraining the defendants from interfering with his possession and cultivation of the land. The order appears to have been completely ignored by the 2nd defendants. The plaintiff’s attempts to secure the assistance of the Nadi Police authorities to assist in the enforcement of the order were in vain. However he has not sued the State in this regard.

[42] The plaintiff’s evidence has also established that the 2nd defendants intentionally interfered with his goods and chattels contained within his property. The interference was direct and constituted an unlawful interference. I am also satisfied on the plaintiff’s evidence that the 2nd defendants without lawful justification converted the plaintiff’s chattels by refusing to surrender the said chattels to the plaintiff. They refused to hand-over the plaintiff’s chattels and their actions constituted conversion, having refused to allow the plaintiff to remove his chattels exhibiting an intention to keep them in defiance of the Court Order. The plaintiff had the right to immediate possession of his goods at the time the 2nd defendants took over his property. The plaintiff was deprived of his chattels and he’s entitled to their value by way of damages.

[43] What has not been proved is that the NLTB defied the Court Order or participated in any way, directly or indirectly, with the unlawful actions by the 2nd defendants. The actions of the 2nd defendants were entirely independent of the NLTB. The plaintiff had stated that the NLTB had assisted him in arranging a meeting with the landowners in an attempt to resolve the dispute between the landowners and the plaintiff. Having failed in the attempt of amicable resolution, the plaintiff was advised by the NLTB to commence legal proceedings against the landowners which the plaintiff did and successfully obtained an injunction order to restrain interference with his right to peaceful occupation. It has not been proved that the NLTB breached the terms of the injunctive order. Nor has it been proved that the NLTB had any role in the unlawful acts of the landowners and as such cannot be held responsible for the actions of the 2nd defendants.

[44] My award to the damages which have accrued to the plaintiff will be reduced to reflect the plaintiff’s breaches of the terms of his contract of tenancy, proved by his own admissions. In his affidavit of 14 July 2000 he admitted that:

At the hearing he admitted to failing to obtain the required consent of the NLTB for improvements made on the land. All these breaches were fundamental breaches of his contract of tenancy.

[45] The counter-claim for alleged damage caused to the land was not proved by the defendants. The photographs produced by Mr. Kiso were insufficient. What was also required was the testimony of Mr. Eroni Qama who had prepared a report regarding the claimed removal of the top soil on the land which he opined had taken away the potential use of the land for agricultural purposes. The defendants had been put on notice that this allegation was strongly denied. Mr. Qama should have been available for cross-examination on the contents of his report. He was not. The evidence before me is not sufficient proof to support a finding in favour of the defendants.

[46] The claim against the NLTB is dismissed. The plaintiff partially succeeds in his claim against the 2nd defendants. The manner in which the 2nd defendants trespassed and took over the plaintiff’s property was high-handed and completely unjustified. It calls for an award of aggravated damages which I assess in the sum of $15,000.00. For the unlawful conversion of the plaintiff’s chattels including farm implements, household furniture, stock and carpentry tools I have awarded the plaintiff the sum of $15,000.00. The amounts awarded are reduced by $10,000.00 for breaches by the plaintiff of the terms of his contract of tenancy.

Land	SOLOVI C/N 2286

Area	*3 acres 0 rood 0 perches*

Rent	$75.00 per annum w.e.f. 1/1/71

Tikina	Nawaka

Mataqali	Bua t.t. Vunaboboi

Purpose	Agricultural

High Court of Fiji

Lal v Native Land Trust Board [2008] FJHC 296; HBC230.2000L (11 July 2008)