Ram v Ali [2009] FJHC 234; HBC228.2008L (22 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 228 of 2008L

IN THE MATTER of Section 169, 170 and 171 of the Land Transfer Act Cap 131

BETWEEN:

MANI RAM f/n Ram Pal of Edmonton, Canada, Retired
Plaintiff/Applicant

AND:

SAIJAD ALI f/n Jaffar Ali of Buabua, Lautoka, Farmer
Defendant/Respondent

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. Anu Patel for the Plaintiff/Applicant
Dr. M S Sahu Khan for the Defendant/Respondent

Solicitors: S B Patel & Co. for the Plaintiff/Applicant
Sahu Khan & Sahu Khan for the Defendant/Respondent

Date of Hearing: 22 September 2009
Date of Judgment: 22 October 2009

INTRODUCTION

[1] This is an application under s 169 of the Land Transfer Act ("LTA") by the Plaintiff, Mani Ram, to evict the Defendant, Saijad Ali, from a sugar cane farm which the latter is now living on and farming sugar cane.

[2] Saijad Ali opposes the application on the grounds that he has taken out proceedings in the Agricultural Tribunal in respect of the cane farm so the proceedings in this Court should be dismissed.

THE APPLICATION

[3] The Originating Summons was filed on 21 October 2008. It is supported by an affidavit by Padma Wati who holds a power of attorney for Mani Ram, who is now retired and lives in Canada, also filed on 21 October 2008. The affidavit of service says that the Summons and supporting affidavit were served on Saijad Ali on 24 October 2008. The application was to be called before the Master on 14 November 2008. However, the matter was instead called on 10 November 2008 and as no one appeared the Master struck out the application. On 3 December 2008 solicitors for Mani Ram filed an application to restore it. The application was called on 12 December 2008. An order for restoration by consent was granted by Phillips J and the matter sent back to the Master on 13 March 2009 to fix a hearing date before His Worship. The matter appears to have not been called on that day. Following April 2009 and the unavailability of a Judge in this Court, the Registry advised the solicitors involved that the application would be mentioned on 22 September 2009. The solicitors for the Plaintiff applied on 29 July 2009 for this matter to be heard earlier so I had the application called before me on 14 August 2009 and gave directions for filing of further affidavits and set the matter down for hearing on 22 September 2009. When the matter was called on 22 September 2009 both Counsels agreed that I deliver this Judgment based on their submissions which they have now filed and for which I am grateful.

[4] Mani Ram through his attorney says in his affidavit that he is the last registered proprietor of the farm described in Native Lease No 13246 in Vuda containing an area of a little over 36 acres (the "Land"). Pursuant to a sale and purchase agreement between him and Saijad Ali dated 16 June 2006, (the "Agreement"), Saijad Ali entered into possession of the Land before the consent of the Native Land Trust Board ("NLTB") was obtained. Saijad Ali has not paid the whole of the purchase price within the time stipulated in the Agreement. About two thirds of the purchase price remains outstanding. On 26 August 2008, Mani Ram’s solicitors had Saijad Ali served with a notice to quit.

[5] Saijad Ali in reply, says that he has taken out proceedings in the Agricultural Tribunal and possibly the Central Agricultural Tribunal pursuant to the Agricultural Landlord and Tenant Act ("ALTA") claiming a tenancy over the same land so these proceedings should be stayed until the Tribunal proceedings are determined.

THE CENTRAL ISSUE

[6] Mr Patel, Counsel for Mani Ram, submits that because the prior consent of the NLTB, or any consent for that matter, has not been obtained in compliance with s 12 of the Native Land Trust Act, Saijad Ali’s occupation of the Land is unlawful.

THE LAW AND DETERMINATION OF THE CENTRAL ISSUE

[7] I agree with Dr Sahu Khan, Counsel for Saijad Ali, that the Court of Appeal in Azmat Ali v Mohammed Jalil & NLTB [1986] FCA; Civ App 111 of 1985 has decided the point so this application must be stayed.

[8] I recently decided the point in Reddy v Krishna [2009] FJHC 221; HBC114.2008L (9 October 2009) in respect of Crown land which I think is equally applicable to Native land. In that case I dismissed a s 169 LTA application for want of jurisdiction. This application should also be similarly dismissed. As I said in Reddy, the Plaintiffs remedy lies in the Agricultural Tribunal pursuant to the provisions of the ALTA.

COSTS

[9] The Defendant has won so he should be entitled to his costs. In Reddy (supra) I fixed costs at $1,000 because there was substantial submissions and oral argument. Such was not the case here so I fix it at $600.

ORDERS

[10] The Orders are therefore as follows:

1. The Plaintiffs Summons filed on 21 October 2008 is dismissed for want of jurisdiction.

2. The Plaintiff shall pay the Defendant’s costs of $600 within 21 days.

Sosefo Inoke
Judge