Gir v Attorney General of Fiji [2008] FJHC 372; HBC 297.2002 (25 July 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION HBC NO 297/2002
No. 70/2008

BETWEEN:

RAM GIR fathers name Maha Deo of Kenani
Settlement, Rarawai, Ba.
(Plaintiff)

AND:

THE ATTORNEY GENERAL OF FIJI
for and on behalf of the DIRECTOR OF LANDS
(First Defendant)

FIJI SUGAR CORPORATION LIMITED
a limited liability company having its registered office at
Western House, Private Mail Bag, Lautoka, Fiji.
(Second Defendant)

Mr V Mishra for the Plaintiff
Mr R. Green for the First Defendant
Mr T. Tuitoga for the Second Defendant

Date of Hearing: 16 July 2008
Date of Judgment: 25 July 2008

JUDGMENT OF FINNIGAN J

Introduction:

[1] The plaintiff seeks freehold title, or a registered lease, for a half acre of residential land at Rarawai, Ba which he has occupied for 35 years. He bought a right to occupy the land in 1973. In 1979 he was told by the Lands Department that it recognized his right to occupy it. In more recent years he sought approval to build a residence and was told by the Fiji Sugar Corporation that he is a trespasser. He seeks injunctions to guarantee his peaceful possession of the land and an order that either or both defendants provide him with a freehold title or a lease for 99 years. He seeks also special damages of $62,000.00 and general damages.

[2] The Amended Statement of Claim does not specify breach of contract. In particular the plaintiff claims that the defendants have created legitimate expectation in him and there has been substantial performance for 35 years. He paid the second defendant for his right of occupation, which then accepted his annual rental payment. Thereafter the rental payment was accepted for many years by the first defendant.

The submissions:

[3] There were only two witnesses. First was the plaintiff, now a 77 year old man. He has a good memory. As a witness he was sharp, knowledgeable and impressive. The other witness was Mr Swarath Singh a Senior Surveyor in the Lands Department at Lautoka. He also has a good memory. He is knowledgeable and impressive in respect of the history of the survey of the land in question. It is however in the submissions that the plaintiff's case at law becomes clear. I compliment counsel because what they filed is the foundation for this decision. Counsel for the plaintiff in particular has been very helpful in setting out the terms of the pleaded claim and of the agreed facts. Counsel for the first defendant conveniently set out the agreed issues and summarized his case. Counsel for the second defendant succinctly set out the argument of the second defendant which if accepted if also a defence for the first defendant. In brief, there was no agreement in writing for transfer of an interest in this land to this plaintiff, there is no note or memorandum signed by or on behalf of the second defendant so that the claim is unenforceable under Section 59 of the Indemnity Guarantee and Bailment Act, Cap 232 ("the IGA Act"). The other substantial defence is raised under the Limitation Act, Cap 35.

The agreed facts:

[4] I set out here the fundamental facts, from the pre-trial conference minutes;

1. The second defendant is the registered owner of half acre of land approximately known as Rarawai (CSR) Lot 287 on Certificate Title No 7822 having Crown Land reference number 4/1/1970.

2. The plaintiff has been paying rental to first defendant since April 1973 in respect of land situated at Kenani Settlement at Rarawai, Ba known as "Rarawai" (CSR) Lot 287 Certificate of Title No 7822 and Crown Land Reference 4/1/1970.

3. The first defendant accepted rentals from the plaintiff.

4. In May 1979 the plaintiff made an application to the first defendant for consent to erect a dwelling house on the said land.

5. The first defendant acknowledged and/or accepted the plaintiff's right to the said land and granted its consent to the plaintiff to build a house.

6. The plaintiff made necessary application for development permission.

7. On or about March 1981 the plaintiff requested the first defendant for issue of a residential lease for the period of 75 years in respect of the said land.

8. The first defendant, by its letter dated 23 March 1981 advised the plaintiff that the said land formed part of DP 2768 and was part of the second defendant's freehold over which the first defendant had no jurisdiction.

9. The second defendant is not prepared to grant a lease in respect of the said land to the plaintiff.

The plaintiff's evidence:

[5] These are the essential parts of the plaintiff's relevant evidence;

I worked for 30 years with the Fiji Sugar Corporation, FSC. I retired on 27 June 1989. I worked at the Rarawai Mill, Ba. I started in 1957. The company name then was Colonial Sugar Refining, CSR. I was educated to class 4.

After the company was called CSR it was South Pacific Sugar Mills Ltd, SPSM. It then became FSC. I was working as a labourer. I got land in the FSC area. I lived there as long as I worked for FSC. I paid rent for the land I used. It was called Kenani Subdivision; it was in the Kenani area, about half a mile from the mills. I was working at the mills so I knew about it and saw......... there was a notice there. It was written by Mr Maxwell's office. He was the Field Officer for FSC.

In 1970 I first heard about it, it was SPSM then. ..............

They would write on a blackboard which was there as a form of notice, the notice was that land would be subdivided and first opportunity would go to the workers after it was subdivided. After some talks in 1973 I went and bought the land, I made my first payment that day. I paid $26.00. I paid this to the Field Officer. (Did you get a receipt?) Yes.

I was allocated land. This was No 287. Others were too. Most of them built a house and are still there, my neighbours. One is Abdul Rehman, also Munsami. I do not remember the date but I paid the money in 1973 and was given the land No 287, it was a half acre. I then came to the Land Department, the Commissioner Western told them to show me the land and peg the land. That was David Matthew. A surveyor showed me the boundaries. I do not know his name. After I paid the rent in 1973 I have lived there. After cleaning it up I planted cassava, a mango tree, a tamarind tree, I planted also banana tree.

I had a receipt for the $26.00 that I paid. The receipts I had were destroyed in the flood, I do not remember when this was, water came into the house and I lost all the receipts. I do not remember what year. I harvested the land. I paid rent $2.00 each year 1973 and 1974. I paid this in the office of the Field Officer Gordon Maxwell. Mr Maxwell told me they had given the land to the Lands Department and I have to see them now and pay the money to them and they will handle the matter.

I spent $200. 00 it was a lot of money. I spent money for posts and I fenced the land. We bought the posts from the mill, they were second hand materials, we got them from the mill on the tramline. It was made of steel, tramline. I paid about $5.00 for about 30 posts.

Then I paid all the rent to the Lands Department here in Lautoka. Then after that I continued paying rent to the Post Office for the lands department and obtained receipts.

This plan [the survey plan annexed to the Statement of Claim] was given to me by the Acting Commissioner Western for the Lands Department Mr Matthew.

[He was shown plaintiff's document D] this is a receipt, it is mine from the Lands Department. The land numbers in the receipt, this is the land allocated to me by Mr Maxwell. [He was shown again the survey plan plaintiff's document A, wherein his ½ acre section is coloured yellow] the writing in the yellow it was written by Commissioner Western David Matthew. The number 4/1/1970 was when the land was subdivided. The number 287 is the number of my lot. This was after 1973. .............I applied for (a lease of) the land. Before that I applied to build a house, no fee was paid. [He was shown plaintiff's document E, a letter dated 25 May 1979. It appears to be a form letter prepared by the Ministry of Lands and Mineral Resources at Lautoka with spaces to be filled in. The L.D. number, the Lot number and his name clearly identify him as the subject of the letter. It was addressed to the Ba Rural Local Authority with a copy to him. In the letter the Director of Lands states that he acknowledges the plaintiff's right to the land and has no objection to the construction of a dwelling on it, subject to the approval of the Ba Rural Local Authority and the dwelling not being sited on any disputed land] This is the letter that was given to me. I have not built on the land. I have shortage of money and later I bought another piece of land because I need a piece of land when I retire.

[He is shown plaintiff's document C, two letters dated 23 March 1981 and 10 January 2001] The one dated 23 March 1981 is signed by David Matthew who was working in the Lands Department office. They say they cannot give me a lease. I had already been on the land 1972 until 1981. [Did you keep paying your rent?] Yes [Were the rents accepted] Yes.

[6] Plaintiffs document C is three receipts (photocopied) from 1975, 1998 and 2001. The first two are Fiji Crown Land Rent Receipts and the last is a post office receipt for rental received on behalf of the Lands Department. The plaintiff's evidence is that he has retired and is living on the second block which he bought for $20,000.00. He said he still looks after the ½ acre block in question. He said he goes himself and cleans the land and has spent about $100.00 for other people to clean the land.

The history of the land:

[7] Mr Swarath Singh the Senior Surveyor gave evidence that the number 4/1/1970 is not a date. All Land Department files start "4/1" and the number 1970 is the number allocated to the plaintiff. Perhaps more accurately to the land which the plaintiff occupies. This witness said he knows David Matthew who was a Lands Clerk at Lautoka in March 1981 when he wrote the letter that I have referred to. The witness became senior surveyor in 1993 and holds that post today in the Western Division. He has been in that office since 1973, before he became a registered surveyor in 1989. David Matthew was there then. He gave his evidence without reference to notes. He was precise and when he was not, he was precise about saying so. He said that the land originally belonged to CSR. It then became the land of SPSM. The land was then transferred to FSC, the government being the shareholder. He said he believed these people had an agreement with SPSM to subdivide all the land allocated to tenants for sugarcane farming. I am not sure who he means by "these people". He said he believed that then an agreement was made with AusAID. In 1973 they came and started sub-divisional work so that plans could be registered and leases issued to individual tenants of SPSM/FSC. The scheme was that the milling company transferred the cane land to the government but held on to the rest for mill purposes such as the mill itself, the residential lines, golf course etc. This land was never to be transferred to the government.

[8] About this particular lot he said once the survey was done and individual farms were created it was found that this ½ acre lot was within FSC freehold lands. This despite the fact that the department had been receiving, and retaining the rent. He produced an account statement (exhibit 1D 2 - tendered by the first defendant) which showed that the department had been receiving the plaintiff's rent since at least 1 January 1988. From at least that time his tenure had been classified "TAW". This means "Tenancy At Will". A tenancy at will is an annual tenancy. It is not a lease. It is renewed every year. He said it is given on land not required by the department at the time and will be revoked when the department wants to use it for whatever purpose for which it was set aside. He said that this land had actually been kept by CSR/SPSM/FSC and he did not have an explanation why the Lands Department had classified the plaintiff as a Tenant At Will of Crown land. He said:

"I believe it could that the survey was not carried out before the individual leases were given. It could be the Department decided to issue tenancies at will unless and until the survey was carried out - it was between 1973 and 1982 - then carry out where it falls".

[9] I presume he meant the department would do whatever was required once the ownership of the land was made certain. Asked further about the conditions of a TAW he replied "it is used where land is set aside for future government use, road or something like that".

[10] It is clear that the survey had been finished by March 1981. That was when David Matthew wrote the letter (plaintiff's doc C also 2D doc 2) referred to above. He said;

"I refer to your verbal request for a survey of the above lot and wish to advise that the area which you claim forms part of DP 2768 which is FSC Ltd freehold and therefore the Department has no jurisdiction of the said land".

The witness offered an illustration from the current Field 40 subdivision in relation to the Lautoka Mill. He said the land is ex CSR land, the higher land was the company's residential tenancies for its workers while the workers tended the cane lands below on the flat. He said "the government gave it all to us to wrap up the ownership of the land. Their mill, golf course, residential lines etc stay with them". When counsel suggested that the government took all of the land, surveyed it then gave back to the company what it used he could not agree. The evidence before me is 2D doc. 14 and 15. The land at first was on Certificate of Title No 7822, now cancelled. It was issued on 21 August 1951. The registered proprietor was the Colonial Sugar Refining Company Limited. The area of the land in the title was 5,433 acres 2 roods and 1 perch. There were five Crown Grants involved, Nos 806, 873, 874, 884 and 1026a. Part of that land was transferred to South Pacific Sugar Mills Limited and became Certificate of Title No 11349 issued on 7 December 1963. The land for which this certificate gave title was 166 acres and 5 perches and involved only Crown Grant No 806. It is Lot 1 on DP 2768, said to be shown in a diagram on the Certificate of Title. Annexed to the photocopy of the title is a sketch plan of 166 acres and 5 perches but it contains no reference to the title. I assume it is the land in question. In 2D doc 15 there is a note made on a copy of that survey plan showing the approximate location of the land claimed by the plaintiff.

[11] From these documents a number of questions emerge. First, the land claimed by the plaintiff appears to be a half-acre island in a sea of 166 acres owned by the second defendant. If that is so, why? Second, what is the situation of the plaintiff's neighbours whom he named? I gather they are on residential lots rather than on cane farms. I gather they have obtained leases of some sort and have built houses. On whose authority was this done and can it not happen for the plaintiff? There may be an answer to these questions in 2D doc 11, a letter written by Swarath Singh on 21 February 2002 to FSC. It was an answer to similar questions by them. Mr Singh was asked nothing about this letter. He refers to "an area adjacent to DP 2768". I cannot deduce anything from it.

[12] Also, I wonder what is the significance of the CSR register of tenants to which the senior surveyor referred as giving guidance in the production of leases to the land which the department surveyed. Nobody asked Mr Singh about that.

[13] The third point is that this land never came within the jurisdiction of the Lands Department. Certificate of Title No 11349 comes directly from its previous title, CT 7822. It says so on its face. The land in CT 11349 belonged from 7 December 1963 to SPSM, it says that on its face also. The land then became the property of FSC, not by transfer but simply by change of name of the registered proprietor. This happened on 31 December 1973 and that also is clear on the face of the title. I have to assume that this title remains intact, there is no suggestion or evidence to the contrary. Without a doubt the plaintiff is occupying land which belongs to FSC. Since at least August 1951 it has belonged to FSC or its predecessors, i.e. the milling company that owned the Rarawai Mill.

[14] Another fact is also clear. It is a conclusion of fact on the evidence and proved to and beyond the civil standard of proof. Clearly the plaintiff was given by FSC or its predecessor an enforceable right to occupy that land in 1973. FSC acquired title to the land on 31 December 1973. It has given no evidence at all about the fact situation regarding this land. I come now to the central issue of these proceedings, what is the nature of that right?

[15] I have no doubt of the following facts;

(i) FSC (including its predecessor) has always owned the land in question. It invited employees to acquire some unproved interest in plots of FSC land. From the plans and evidence these plans were not farming acreages but were residential.

(ii) The plaintiff's plot apparently was surveyed and identifiable by number.

(iii) The plaintiff accepted FSC's offer, paid $26.00 to FSC for whatever the right, was given a receipt and went into occupation of Lot 287.

(iv) The plaintiff paid rent installments of $2.00 per year to FSC for two years. I have no information to judge whether this "peppercorn" rental is significant. It seems a very small amount.

(v) Thereafter, at the direction of FSC he paid his $2.00 per year to the Lands Department. He spent money on fencing, plants and maintenance.

(vi) The Lands Department acknowledged the existence of what apparently is a surveyed lot number 287 of DP 2768, and designated the plaintiff's occupation as a tenancy at will, for its own purposes.

[16] The specific right that he bought from FSC is not directly proved, but in his letters to the Lands Department he calls himself a tenant. There is absolutely no evidence that he purchased freehold title and in my view he should not have claimed a freehold title.

[17] Neither did he buy a lease. By implication from the proved actions of FSC and the plaintiff it is proved that he bought a simple tenancy of the same nature as a Lands Department tenancy at will. He had no registered title at all to enforce. He has not lodged a caveat.

[18] He spent money on his occupation, for a fence and for plants and maintenance. He put up the fence and planted the plants. He maintains the property. He paid rent every year. He never built a house on it and never lived there. He remained in undisturbed occupation, free to do as he wanted except build a house, for 35 years. All that time the land has been owned by FSC. For the best part of 30 years, until his clamour for better title brought him to the attention of FSC it seemed not to know or care that he had some rights over this piece of their land. Its current officials may or may not know what happened back in 1973. They simply produced no evidence. There were some agreed plans. Some were too small to allow me to read what might have been helpful.

The plaintiff's right:

[19] I have given a great deal of thought to the submissions and the authorities put forward by all three counsel. I have studied the evidence particularly the documents in detail. It is interesting to compare this case with Home Finance Company Limited v Liakhat Sahib HBC 233/2002L ruling 18 August 2005. However in that case the fact situation is different, the equities are different, and in that case relief was granted to a defendant, who had the shield of estoppel. Estoppel is not a sword for the plaintiff to bring to the battle. What he seeks is in the nature of specific performance and he cannot deny to the defendants any shield they may have, including estoppel and/or statutory defences.

[20] He does not rely on the doctrine of adverse possession, or any other land law remedy. He sues in contract but in counsel's submissions he relies upon equity. The best chance he has for a remedy is the one apparent from the words of Lord Denning M.R in Inwards & Ors -v- Baker [1965] EWCA Civ 4; [1965] 1 All ER 446, at 448G;

"It is quite plain from those authorities that, if the owner of land requests another or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises any equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity. Counsel for the plaintiffs urged before us that the licensee could not stay indefinitely. The principle only applied, he said, when there was an expectation of some precise legal term; but it seems to me, from Plimmer's case (5) in particular, that the equity arising from the expenditure on land does not fail.

Merely on the ground that the interest to be secured has not been expressly indicated.... the court must look at the circumstances in each case to decide in what way the equity can be satisfied.

So in this case, even though there is no binding contract to grant any particular interest to the licensee, nevertheless the court can look at the circumstances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable to do so".

[21] Against that principle Section 59 of the Indemnity, Guarantee and Bailment Act Cap 232 cannot prevail. Neither, in the present case, can Section 4 of the Limitation Act Cap 35. A timeline of relevant events is this;

(i) 9 May 1979 he wrote to the Lands Department for permission to build a house (2D doc. 1).

(ii) Early in 1981 he verbally asked Lands Department for a survey of Lot 287 (plaintiff's doc C).

(iii) On 23 March 1981 he was told in writing that it is FSC freehold, DP2768, and the Lands Department "has no jurisdiction of the said land" (plaintiff's doc C).

(iv) On 6 December 1996 he wrote to the Lands Department to issue him with a registered lease saying that "all the other tenants of CSR have been issued with registered leases" (2D doc 5).

(v) On 30 October 2000 he wrote again to Lands Department for a registered lease (2D doc 6). He said that in 1981 a survey had been done but his land did not come out of FSC's freehold. He said "it is FSC land, I have been a tenant on Lot 287 since the subdivision".

(vi) On 10 January 2001 his application for a lease was refused again on the grounds that Lot 287 falls within FSC land.

(vii) On 13 September 2002 he issued his writ in this action.

[22] The second defendant, FSC, is the owner of the land and sees itself as the major defendant. However the plaintiff does not. Until his lawyers wrote to FSC in the events that led up this action he himself had never had anything to do with FSC. His claim has always been against the Lands Department. In this action he has sued the Lands Department as first defendant. It is from the Lands Department that he seeks his remedy, a registered lease. This claim as pleaded started on 6 December 1996 (2D doc 5) when he claimed other tenants had leases. It crystallized on 30 October 2000 (para 7 of Statement of Claim) when he wrote (2D doc 6) that he knew the land belonged to FSC but when the survey was done in 1981 his land, like that of the others, should have come out from FSC's freehold. These dates are within the limitation period of Section 4 of Cap 35 but in my view his cause of action did not clearly arise until 10 January 2001 when the Lands Department responded to that particular claim, and refused it.

[23] It matters not that he has failed to obtain the remedy he seeks against that defendant. By Section 23 of the Limitation Act Cap 35 he is entitled to join another defendant in the present circumstances. The fact that his real remedy is found by the court to lie against that other defendant shows the rationale of Section 23.

[24] In case I am wrong about that, there is another timeline. On 29 October 2001 the plaintiff's solicitors wrote to FSC just after the final letter from the Lands Department mentioned above. They mentioned that letter and asked FSC for "certain survey instructions from you so that our client could get at least the proper Title from Fiji Sugar Corporation Limited on the basis of his entitlement. He has been paying rental". (Plaintiff's doc I - J). On 7 December 2001 for the lawyer for FSC replied and not only declined the request but stated that the plaintiff was a trespasser. The letter concluded "as your client is in illegal occupation of our client's land would you request him to vacate failing which our client may have recourse to proceedings for eviction". It was at that time that the plaintiff knew or should have known that he had a dispute with FSC, which itself was claiming to have a cause of action against him. Clearly the Limitation Act did not apply to their cause of action and neither does it apply to this simultaneous cause of action arising in the plaintiff. By the same token as above Section 23 of the Act would allow the joinder of the Lands Department, which is necessary, if perchance the action against that defendant were out of time.

Conclusion:

[25] For these reasons I uphold the plaintiff's claim for a remedy and the remedy is against the second defendant. It is an equitable remedy, arising out of Inwards -v- Baker where it was the land owners were the plaintiff. There, the court said at page 449C;

"So here, too, the plaintiffs, the successors in title of the father, are clearly themselves bound by this equity. It is an equity well recognized in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as the result of that expenditure, he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. I am quite clear in this case that it can be satisfied by holding that the defendant can remain there as long as he desires to use it as his home".

[26] The plaintiff has not shown that he is entitled to a freehold or a leasehold title. He does not intend to use this land for his home. He wants to build a house and rent it. I doubt that he will ever be legally able to do that. However his occupation should be allowed to continue as it is in its present form until he no longer has a use for that land. He and FSC can reach an agreement if they wish. Rental seems to have been waived, but FSC may resume it if they wish. When he relinquishes it or when he dies then FSC may do whatever it likes with it. He has made out no claim for damages, he has lost little or nothing. I dismiss his damages claims. An injunction in my view is unnecessary. I dismiss that claim also.

[27] I therefore made the following orders:

1. The second defendant is directed to allow the plaintiff to remain in undisturbed possession of Lot 287 on DP 2768, until there is mutual agreement that the plaintiff will vacate, or the plaintiff relinquishes the land, or else dies whichever my first occur, or until further order of the court. The plaintiff shall pay rental to the second defendant if a request is made in writing and delivered to the plaintiff at $2.00 per annum.

2. The plaintiff's claims for damages are dismissed.

3. The application for injunctions is dismissed.

Costs:

[28] Costs follow the event and are awarded to the plaintiff. I have considered counsels' brief submissions and assess costs arbitrarily at $1,500. Both defendants defended on the merits. This is against both defendants jointly and severally.

D. D. Finnigan
JUDGE

At Lautoka
25 July 2008