State v Director of Lands [2010] FJHC 307; HBJ002.2010 (6 August 2010)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 02 OF 2010

BETWEEN:

STATE

AND:

1. THE DIRECTOR OF LANDS
2. THE REGISTRAR OF TITLES
3. DOMINION FINANCE LIMITED
4. PROLINE MARKETING LIMITED
(In Receivership)
RESPONDENTS

EX PARTE:

PROLINE BOATING COMPANY LIMITED
APPLICANT

Appearances: Mr. H. Nagin for the Applicant.
Ms. N. Karan of AG's Chambers for 1st and 2nd Respondent.
Mr. D. Sharma for the 3rd Respondent.
No Appearance for the 4th Respondent.

Date/Place of Hearing: Thursday, 15th July, 2010 at Suva.
Date/Place of Judgment: Friday, 06th August, 2010 at Suva.

Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT OF THE COURT
(Leave for Judicial Review and Stay)

___________________________________

ADMINISTRATIVE LAW – APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW AND STAY OF THE DECISION OF THE DIRECTOR OF LANDS AND ALL PROCEEDINGS, ACTIONS OR DEALINGS IN RESPECT OF THREE CROWN LEASES-

CROWN LAND - applicant granted three separate leases over three lots which leases were subsequently cancelled after the Director of Lands re-entered the property for breach of statutory requirement being s. 16 of the Crown Lands Act, Fiji, Cap. 132 on the premise that the applicant had failed to make any application for the leases, failed to disclosed its interest in the land, and failed to notify the interest of the mortgagee-the leases were then granted to the fourth respondent who always had held the interest in the said property by way of an approval notice- the fourth respondent had mortgaged the land to its financier for advances made to it for a substantial sum; the financier having noted its interest in the property by registering its mortgage at the Registrar of Deeds Office-the applicant aggrieved at the Director of Lands action to cancel the lease applied for leave for judicial review to remove and quash the decision of the Director of Lands-Director of Lands statutory powers to cancel lease under s.16 of the Crown Lands Act discussed, procedure to re-enter lease and cancellation of the same discussed- applicant was not entitled to have the lease issued in its name in the first place- the leases were obtained by applicant in breach of s. 16 of the Crown Lands Act-Director had acted honestly in correctly the error in issuing the leases to the applicant- no procedural impropriety shown by the actions of the Director of Lands; no arguable case made out against the respondents-application for leave for Judicial Review refused.

__________________________

Legislations

The High Court Rules, 1988.

The High Court (Amendment) Rules, 1994.

Property Law Act, Fiji, Cap. 130.

Land Transfer Act, Fiji, Cap. 131.

Crown Lands Act, Fiji, Cap. 132.

Crown Lands (Leases and Licenses) Regulations, Fiji, Cap. 132.

___________________________

Cases Referred To

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1981] UKHL 2; [1981] 2 ALL ER 93.

___________________________________________________________________________

The Application

1. On the O7th day of May, 2010 the applicant filed an application for leave to apply for judicial review in respect of a decision made by the Director of Lands on or about the 8th day of February, 2010 whereby he re-entered the applicant's Crown Lease No's. 11769, 17770 and 17771 and issued new Crown Lease Nos.18013, 18014 and 18015 in the name of Proline Marketing Limited and further granted consent to Mortgage No.'s 729939A, 729939B and 729939C in favour of Dominion Finance Limited.
   
2. The applicant seeks a further order that the leave shall operate as a stay of the said decision of the Director of Lands and also for stay of all proceedings, actions or dealings in respect of Crown Lease No.'s 18013, 18014 and 18015.
   
3. On the 2nd day of July, 2010 his Lordship, the Hon. Mr. Justice Calanchini had granted an order that the sale of the Crown Lease No.'s 18013, 18014 and 18015 and any other dealings in respect of the said Crown Leases by the respondents and/or their servants and/or agents be stayed pending the determination of this judicial review action and civil action No. 212 of 2009. This order was granted pursuant to an application filed by the applicant on the 04th day of June, 2010. This order by his lordship has effectively dealt with the stay application in one part. However the application to stay the decision of the Director of Lands is yet to be considered by the court.
   

The Reliefs Sought

4. The applicant has sought the following final reliefs-
   
   1. An order of Certiorari to remove and quash the said decision of the 1st respondent made on or about the 8th day of February, 2010
      
   2. A declaration that the 1st respondent has acted unfairly and/or against the rules of natural justice and/or abused their discretion and/or arbitrarily and/or unreasonably and/or acted in breach of the applicant's legitimate expectations and/or made errors of law and/or exceeded his jurisdiction in purporting to re-enter the applicant's Crown Lease No.'s 11769, 17770 and 17771 and purporting to issue new Crown Lease No.'s 18013, 18014 and 18015 in the name of Proline Marketing Limited and purporting to grant consent to Mortgage No.'s 729939A, 729939B and 729939C in favour of Dominion Finance Limited.
      
   100. An order that the execution of Crown lease No.'s 18013, 18014 and 18015 by the purported receiver in the name of Proline Marketing Limited is unlawful and null and void.
        
   4. An order that the Mortgage No.'s 729939A, 729939B and 729939C are unlawful and void.
      
   5. An order that the registration by the 2nd respondent of the following documents namely re-entry notices no.'s 729937, 729938 and 729939, Crown Lease No.'s 18013, 18014 and 18015 and Mortgage No.'s 729939A, 729939B and 729939C is unlawful, wrongful and null and void.
      
   6. Damages.
      
   7. Costs of the action on indemnity basis.
      

The Grounds

5. The grounds for the relief as outlined in the application are:-
   
   1. The first respondent has acted unfairly and in breach of the rules of natural justice in purporting to re-enter the applicant's Crown Lease No.'s 11769, 17770 and 17771 and purporting to issue new Crown Lease No.'s 18013, 18014 and 18015 in the name of Proline Marketing Limited and purporting to grant consent to Mortgage No.'s 729939A, 729939B and 729939C in favour of Dominion Finance Limited without giving the applicant an opportunity to be heard.
      
   2. The first respondent abused his discretion in that he did not take into consideration the following relevant matters:-
      
      • The Crown Lease No.'s 11769, 17770 and 17771 had been properly issued to the applicant.
        
      • There were proper procedures to be followed if the first respondent wished to re-enter any Crown Lease issued by it.
        
      • Once the Crown Lease No.'s 11769, 17770 and 17771 were validly registered he should not execute new leases over the same land and should not grant consent to mortgage over the same land to parties other than the registered lessee.
        
      • The applicant had not breached any conditions of the Crown Lease No.'s 11769, 17770 and 17771.
        
      • High Court Action Number HBC 212 of 2009 was pending in relation to the same land.
        
   100. The first respondent abused his discretion in that they took into consideration irrelevant matters like:-
        
        • Wrongful representations made by the third respondent.
          
        • Relying on hearsay that the applicant was in material breach of the lease conditions when that was not the case.
          
        • The applicant had committed a breach on 1st January, 2009 when that was not the case and the lease had not been issued at that time.
          
   4. The respondents have acted arbitrarily and/or unreasonably.
      
   5. The respondents have made errors of law.
      
   6. The first and second respondents have exceeded their jurisdiction in purporting to re-enter the applicant's Crown Lease No.'s 11769, 17770 and 17771 and purporting to issue new Crown Lease No.'s 18013, 18014 and 18015 in the name of Proline Marketing Limited and purporting to grant consent to mortgage No.'s 729939A, 729939B and 729939C in favour of Dominion Finance Limited and in purporting to register such documents.
      
   7. The first and second respondents have acted contrary to the legitimate expectations of the applicant.
      

The Opposition

6. The application for leave is opposed by all the respondents.
   
7. The first and second respondents filed their notice of opposition on the 01st day of June, 2010 challenging the application on the following grounds:-
   
   1. The applicant does not have an arguable case.
      
   2. The first and second respondents acted within their powers in arriving at the decision challenged and took into account all relevant facts and circumstances in cancelling the lease.
      
   100. The first respondent has complied with the relevant provision of the Crown Lands Act Cap. 132 by giving notice of re-entry to the applicant.
        
   4. The application is frivolous and vexatious.
      
8. The third and fourth respondents filed their notice of opposition on the 17th day of May, 2010. The grounds for opposition are:-
   
   1. The application made by the applicant to issue the leases in its name was unlawful.
      
   2. The applicant was not entitled to apply for leases in its name.
      
   100. The applicant failed to disclose to the Director of Lands the interest of the 3rd and 4th respondents in the lease.
        
   4. The applicant acted contrary to s. 16 of the Crown Lands Act Cap. 132.
      
   5. The application against the Director of Lands is contrary to s. 28 of the Crown Lands Act Cap. 132 in that the Director only acted bona fide to correct and nullify the applicant's fraudulent application for the leases in question.
      

The Applicant's Affidavit

9. The applicant filed an affidavit in support on the 7th day of May, 2010 and made the following contentions:-
   
   1. On the 8th day of July, 2009 the Director of Lands (1st respondent) issued to the applicant Crown Lease No.'s 11769, 17770 and 17771.
      
   2. The Crown Leases were registered by the 2nd respondent, the Registrar of Titles on the 8th day of July, 2009.
      
   100. On the 16th day of July, 2009, Dominion Finance Limited, the 3rd respondent issued High Court proceedings being Civil Action No. HBC 212 of 2009 against the applicant; the 4th respondent, Apisalome Bai Baro and Esitia Lolohea Baro in which proceedings the 3rd respondent sought to have the applicant's lease cancelled by the 1st respondent even though the 1st respondent was not a party to that proceeding.
        
   4. The applicant then sought to have the said action struck out on the grounds of abuse of process because the issues in the action were in the public law arena and not in the private law. This application has not been heard yet.
      
   5. On the 8th day of February, 2010, without any prior notice, warning or complaint, the 1st respondent issued re-entry notices in respect of the applicant's leases. On the same day the applicant instructed its solicitors, Sherani & Co. to write to the 1st respondent expressing concern at the manner of the purported re-entry. No response was received. Sherani & Co. then wrote another letter on the 22nd day of March, 2010 but they still did not receive any response.
      
   6. Recently the applicant has discovered that the 1st respondent together with the receiver of Proline Marketing Limited have executed new leases in respect of the said properties of the applicant. The leases were all lodged for stamping on the 22nd day of December, 2009 when the applicant's leases were still effective and not subject to any re-entry.
      
   7. The 2nd respondent purported to register Crown Lease No.'s 18013, 18014 and 18015 initially on the 31st day of December, 2009 and then cancelled the same and purported to re-register the same on 24th March, 2010.
      
   8. The mortgage documents in favour of Dominion Finance Limited have also been executed before the re-entry of the applicant's leases and are also purported to be first registered on the 31st day of December, 2009 by the 2nd respondent and then re-registered on the 24th day of March, 2010.
      
   9. The re-entry of the applicant's leases were originally lodged by the 1st respondent with the 2nd respondent on the 31st day of December, 2009.
      
   10. The new leases and the mortgages were also lodged on the 31st day of December, 2009, a date on which the applicant's leases had not been re-entered.
       
   11. The 1st respondent having realised his mistake then purported to re-lodge the re-entry in respect of the applicant's three crown leases on the 24th day of March, 2010 and the respective applications for re-entry was actually lodged with the 2nd respondent on 24th day of March, 2010.
       

The 1st and 2nd Respondent's Affidavit

10. The 1st respondent filed an affidavit on the 6th day of July, 2010 and made the following contentions:-
    
    1. The Crown Lease No.'s 17769, 17770 and 17771 were lodged on the 27th day of May, 2009 and registered with the Registrar of Titles on the 8th day of July, 2009.
       
    2. The Director of Lands later discovered that the leases were issued to the applicant on misrepresentation in the name of Proline Boating Company Limited.
       
    100. The Director of Lands had initially issued the approval notice to Proline Marketing Limited on the 3rd day of November, 1999 to develop Tiri land for developmental purposes. The said approval notice was for 5 years and was duly registered with the commissioner of Stamp Duties on the 5th day of November, 1999.
         
    4. On the 7th day of November, 2003, Proline Marketing Limited requested for an extension of the approval notice which was granted by the Director of Lands by a letter dated the 12th day of December, 2003.
       
    5. The extension was for 3 years. The approval notice was to expire on the 31st day of December, 2003.
       
    6. Mr. Baro on behalf of Proline Marketing Limited had further requested for an extension of the development lease. The request was made on the 24th day of October, 2006.
       
    7. On the 23rd day of November, 2006 and the 12th day of February, 2007, applications for consent to mortgage were filed by the Proline Marketing limited in favour of Dominion Finance Limited.
       
    8. The consent for mortgage was approved by the Director of Lands.
       
    9. At all times the approval notice for the lease was granted to Proline Marketing Limited and the final approval for an extension was granted until the 31st day of March, 2009.
       
    10. The applicant misrepresented himself and fraudulently and without making proper application obtained the leases under the name of Proline Boating Company Limited. Proline Boating Company Limited very well knew that the approval notice was in the name Proline Marketing Limited and that there were mortgages in favour of Dominion Finance Company over the lots mentioned.
        
    11. The applicant knowingly misinformed the officials at the Lands Department and had the lease issued and registered under the name of Proline Boating Company Limited.
        
    50. The applicant has failed to the state the basis on which it had acquired the said leases in its name.
        
    13. The notices of re-entry were sent to the applicant on the 8th day of February, 2010 after it was found out that the leases were wrongly issued to the applicant.
        
    14. The Director of Lands was only exercising its powers under section 16 of the Crown Lands Act Cap. 132. The Director has the statutory powers to cancel leases that were acquired through fraudulent representations.
        
    15. Proline Boating Company Limited at all times had known that the lease belonged to Proline Marketing Limited and acted fraudulently to deprive Dominion Finance Limited.
        
11. The 2nd respondent filed an affidavit in opposition on the 7th day of July, 2010. The 2nd respondent asserts the following:-
    
    1. Crown Lease No.'s 18013, 18014 and 18015 were executed and stamped on the 22nd day of December, 2009 while the re-entry notices were sent on the 8th day of February, 2010. However the said leases were not issued until the 24th day of March, 2010 after all the re-entry notices had expired.
       
    2. The mortgages were executed prior to the re-entry notices but registered on the 24th day of March, 2010 after the expiry of the re-entry notices.
       
    100. The requirements of the Land Transfer Act have been complied with in that re-entry notices were sent prior to cancellation of the old leases and issuance of the new leases. The new leases were registered after the re-entry notices had lapsed.
         

The 3rd Respondent's Affidavit

12. The third respondent filed an affidavit on the 10th day of June, 2010 and made the following contentions:-
    
    1. No authority or resolution has been sighted from the applicant stating that it has authorised the institution of this action and/or that Mr. Bart is authorised to depose an affidavit on its behalf. In absence of any authority, it is contended that the applicant is not authorised to institute this action and that Mr. Bart is not authorised to depose the affidavit.
       
    2. Crown Lease No.'s 17769, 17770 and 17771 were registered with the Registrar of Titles on the 8th day of July, 2009.
       
    100. The applicant has not attached any application made to the Director of Lands to issue the leases in the name of the applicant. There is total silence on the basis upon which the applicant acquired the leases. The approval notice was in the name of the 4th respondent and Dominion Finance Limited had a mortgage over the approval notice registered on the 28th day of February, 2007. The Director of Lands had consented to the mortgage of Dominion Finance Limited for advances up to $800,000. Substantial advances have been made to the 4th respondent.
         
    4. Once the subdivision works were completed the leases were to be issued to the 4th respondent and secured by the mortgage of Dominion Finance Limited.
       
    5. On 7th March, 2008 Dominion Finance Limited wrote to the Director of Lands and advised the Director of its subsisting mortgage which was to be brought down on any leases which were issued from the developmental lease. Dominion Finance Limited's solicitor also wrote to the Director of Lands on the 1st day of April, 2008 asking them not issue leases without prior consent of Dominion Finance Limited. The Director of Lands by a letter dated the 28th day of May, 2008 gave an undertaking that it will not issue any leases without prior consent of the mortgagee.
       
    6. On the 14th day of January, 2009, Dominion Finance Limited instructed its solicitors to apply for the issuance of leases over lots 1, 2, 3 and 5 on Plan SO 5866 subject to its mortgage.
       
    7. On 16th January, 2009 the solicitor's applied for issuance of Crown Leases over Lots 1, 2, 3 and 5. There were exchange of letters between the solicitors and the office of the Director of Lands.
       
    8. The loan account for the 4th respondent went in default. Notices of demand were served on the 4th respondent and the guarantors Apisalome Bai Baro and Esita Lolohea Baro.
       
    9. On the 28th day of April, 2009 the Director of Lands issued four new leases over Lots 2, 3, 4 and 5 on Plan SO 5866 and sent the same to the solicitors so that they could arrange the 4th respondent to sign the leases.
       
    10. The Directors of the 4th respondent refused to sign the leases.
        
    11. On 10th July, 2009 Dominion Finance Limited appointed Amanda Smith to be the Receiver and Manager of the 4th respondent under the Deed of Debenture.
        
    50. On the 8th day of July, 2009, the applicant applied and was issued new leases over lots 2, 3 and 5 on Plan SO 5866 Nukutuku subdivision. Dominion Finance Limited had no knowledge on this aspect. Dominion Finance has no idea on the basis on which the leases were issued and why the mortgages were not registered against the said leases.
        
    13. Director of Lands was not made a party to the proceedings in the civil case which is pending because they were conducting an investigation under s. 16 of the Crown Lands Act. The main purpose of the civil action was to restrain the applicant from selling the property to some bona fide purchasers for value or to some third party who had no notice of the claim of Dominion Finance Limited.
        
    14. Any applicant applying for a lease must disclose to the Director of Lands the interests of any party or person who may have a claim or interest in the said leased land. The applicant failed to do this and thus obtained the leases in its name through material non disclosure and fraud. The Directors and principals of the applicant and the 4th respondent are all family members and until January, 2009 Apisalome Bai Baro and his wife Esita Lolohea Baro were the Directors of the applicant as well as the 4th respondent.
        
    15. The applicant had the opportunity to say in its affidavit the basis on which it was issued with the new leases in place of the 4th respondent or the consideration it paid to the 4th respondent to acquire the leases but nothing has been outlined as there is no truth to disclose.
        
    16. After the Director of Lands completed its investigation and issued new leases to the 4th respondent, the mortgages were then registered on the leases.
        
    17. The mortgages were executed by the receiver on 9th December, 2009. On this date the Director of Lands granted his consent to principal advances of $800,000. Stamp Duty was also paid. The previous mortgage was registered at the Registrar of Deeds Office. When the leases were issued, identical mortgages were brought down against the leases. This could only have been done once re-entry had taken place and new leases were issued in the name of the 4th respondent which was on the 24th day of March, 2010.
        
    18. The fact that the mortgages were executed on 9th December, 2009 is nothing unusual because the mortgage secured the existing debt owed by the 4th respondent and in any event the term of the leases commences from 1st January, 2009.
        
    19. The applicant has acquired the leases to defraud the mortgagee. If it wants to acquire the lease then it should pay the mortgage debt first.
        

Applicant's Submission

13. The applicants counsel basically relied on the affidavit and stated that the applicant has sufficient standing to bring the proceedings. It has brought an arguable case without delay in that it had leases and those leases were cancelled by the Director of Lands and suddenly given to the 4th respondent. All this was done when the High Court action was still on foot and so it must be presumed that there is an arguable case.
    

1st and 2nd Respondent's Submissions

14. Ms. Karan also relied on the affidavits of both the 1st and the 2nd respondents. She further submitted on the procedure for issuance of leases. She submitted that the procedure is that an application must be made to the Director of Lands for issuance of the leases. The records reveal no such application was made by the applicant. At all times, the application, the approval notice and the development lease was in the name of Proline Marketing Limited. It was on the applicant's misrepresentation that the leases were issued to it without it being entitled to the same. There was no basis on which the leases should have been issued to Proline Boating Company Limited. The Director realised that there was an error and then the leases was cancelled under s. 16 of the Crown Lands Act. Cap. 132.
    
15. Ms Karan further submitted that there are no other documents or evidence that the 1st and the 2nd respondents will present and all the documents and the evidence indicate that there is no arguable case for the applicant.
    

3rd Respondent's Submission

16. Mr. D. Sharma, counsel for the 3rd respondent submitted that there is no dispute that the applicant has sufficient interest in the matter so it has locus standi to bring the proceedings. There is also no delay in bringing the application for leave to apply for judicial review. He however submitted that the applicant does not have an arguable case and the matter should be dismissed at the leave stage. He further submitted that the applicant always had an alternative remedy which it failed to pursue.
    
17. On the aspect of there being no arguable case Mr. D. Sharma submitted that the two companies Proline Boating Company Limited and Proline Marketing Limited are family companies. Since there was only an approval notice, the 3rd respondent could only register its mortgage at the Registrar of Deeds office. Proline Boating Company Limited at all times knew of the mortgagees interest and they despite that failed to disclose this interest to the Director of Lands under s. 16 of the Crown Lands Act. The non-disclosure was to defeat the interest of Dominion Finance Limited. When the Director discovered that the applicant has misled and misrepresented and then obtained leases, the Director then exercised its powers to cancel the lease.
    
18. On the aspect of alternative remedy Mr. Sharma submitted that the applicant's could have informed the Director of Lands of the existing interests in the property and since there was failure to do so they were the defaulting party to have their leases cancelled.
    

Applicant's Submission In reply.

19. Mr. Nagin submitted in reply that he does not need to indicate to the court the basis on which his client acquired the lease. It is a matter for the substantive hearing. What is relevant at this stage is that the Director of Lands has overlooked the provisions of indefeasibility of title by just exercising its powers to cancel the lease. The lease could not be re-entered under the provisions of the Property Law Act.
    
20. S. 16 of the Crown Lands Act does not contain any provision for an alternative remedy. If there was an internal appeals procedure and the applicant could have raised his concerns at the internal appeal level, then he had an alternative remedy.
    

The Law

21. A party applying for judicial review must first obtain leave of the court: Order 53, r. 3 (1) of the High Court Amendment Rules, 1994.
    
22. The law on leave is well settled.
    
23. Leave shall not be granted unless the applicant has sufficient interest in the matter to which the application relates: Order 53, r. 3 (5) of the High Court Amendment Rules, 1994.
    
24. Where in any case the court considers that there has been undue delay in making an application for judicial review or an application has been made after the expiry of the relevant period provided for by any statute for bringing an application within a stipulated time period, the court may refuse to grant leave for the making of the application: Order 53, r. 4 (1) and (3) of the High Court Rules, 1988.
    
25. In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period within which the application must be made is three months after the date of the proceeding: Order 53, r. 4 (2) of the High Court Rules, 1988.
    
26. Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceedings which is subject to appeal and the time is limited for the bringing of the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appealing has expired: Order 53, r. 3 (6) of the High Court Amendment Rules, 1994.
    
27. Where leave to apply for judicial review is granted, then, if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders: Order 53, r. 3 (8) (a) of the High Court Amendment Rules, 1994.
    
28. At the leave stage, the applicant must show an arguable case in favour of granting to the applicant the reliefs sought. Lord Diplock in the case of INLAND REVENUE COMMISSIONERS V NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD. [1981] UKHL 2; [1981] 2 ALL ER 93 at 106:-
    

"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called on to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application".

29. In summary, the law on leave is that the applicant must have sufficient interest to bring the application, the applicant must have brought the application without undue delay, the applicant must exhaust the alternative remedy procedure before seeking leave to apply for judicial review and the applicant must have a prima facie case.
    

The Determination

30. I would very briefly state the facts of the case as apparent from the affidavits filed by all the parties.
    
31. The subject property is located at Lot 21, Queens Road, Lami.
    
32. It is undisputed that the directors of the applicant and the 4th respondent are all family members. Until January, 2009 Apisalome Bai Baro and his wife Esita Lolohea were the Directors of the applicant as well as the 4th respondent.
    
33. There was an Approval Notice of Lease No. 64532, LD Ref 60/552 and LD 4/16/8366 in the name of Proline Marketing Limited ("PML") to allow PML to complete subdivision works. The approval notice was initially granted on the 1st day of November, 1999 for a period of 5 years and subsequently extensions were granted the final of which was granted until 31st March 2009.Dominion Finance Limited ("DFL") had a mortgage over the approval notice. The mortgage number 9358 was registered on the 28th day of February, 2007. It was registered at the Registrar of Deeds Office in Suva. The mortgage was taken for advances made by DFL to PML in the sum of $800,000.
    
34. The Director of Lands had consented to DFL's mortgage for advances up to $800,000.
    
35. It is undisputed that on 16th January, 2009 the solicitor's for Dominion Finance Limited applied for issuance of Crown Leases over Lots 1, 2, 3 and 5 on Plan SO 5866. On 28th April, 2009 the Director of Lands issued four new leases over Lots 2, 3, 4, and 5 on SO 5866 [Nukutuku Subdivison]. It is further undisputed that the directors of PML refused to sign the leases.
    
36. The loan account for the PML was in arrears and default notices were served on PML and the two directors who were the guarantors. On 10th July, 2009 Amanda Smith was appointed receiver and manager of PML under the deed of debenture.
    
37. On 8th July 2009 Proline Boating Company Limited ("PBL") applied and was issued with new leases over Lots 2, 3, and 5 on SO 5866 Nukutuku Subdivision.
    
38. On 16th July, 2009 DFL issued High Court proceedings against PBL, PML, Apisalome Baro and Esitia Lolohea Baro in which DFL sought an order that the leases issued to PBL be cancelled and alternatively for an order that the leases issued in the name of PBL be surrendered to the Registrar of Titles who be directed to endorse DFL's mortgage against each lease and to have the leases delivered to DFL at the cost and expense of the defendants. DFL also sought an order for judgment against the defendants in the sum of $1,206,893.40 plus a daily interest at the rate of $746.25 from 8th August, 2009.
    
39. PBL has in the High Court proceedings sought to have the action struck out for abuse of process because the issues were in the public law area and not private law. The application is not yet determined by the court.
    
40. On the 8th day of February, 2010 the Director of Lands issued re-entry notices to PBL in respect of Crown Lease No.'s 17769, 17770 and17771. The terms of the notice were:-
    

"Notice

Section 57 of Land Transfer Act, Cap. 131, Section 105 of Property Law Act, Cap. 130 and Crown Lands Act, Cap. 132

_____________________________________________________________________

TO ALL WHOM IT MAY CONCERN

TAKE NOTICE that I have on this day entered into and taken possession of in the name of the Director of Land of Fiji, on behalf of the Crown, a certain piece of land known as Lot 2 on Plan SO 5866 Nukutuku Subdivison (pt of) in the district of Suva in the province of Rewa and containing an area of 2001 m squares Crown lease No. 17769 on the grounds that the Lessee has committed a breach of the provision of section 4 and section 16 against Crowns Lands Act"

41. Similar notices were issued for Crown Lease numbers 17770 and 17771 for Lots 3 and 5 on Plan SO 5866 Nukutuku Subdivision.
    
42. Subsequently Crown Lease Numbers 18013, 18014 and 18015 were registered on the 24th day of March, 2010. These leases were over the same lots for which the applicant PBL had obtained the leases.
    
43. The mortgages were executed before the re-entry and registered on the 24th day of March, 2010.
    
44. There is no indication in the affidavits that the applicant PBL ever had any dealing in the land in respect of which leases were granted to it. All the dealings were by PML and DFL and the documents do suggest that the interest was PML's and DFL's.
    
45. Having briefly examined the facts of the case as precise as I can draw from the affidavits, I must now examine the issues in the matter.
    
46. It is not disputed that the applicant has sufficient standing to bring the action to this court since it once had leases issued to it and then the same leases were cancelled and new ones granted over the same portion of the land. Indeed the applicant is an aggrieved party because the cancellation of leases affects the company directly.
    
47. It is also not disputed that the applicant had brought the action within the requisite time frame without any delay.
    
48. All the respondents are however very strongly challenging that the applicant has an arguable case to be granted leave for the orders sought. It is also very strongly challenged by DFL, the third respondent that there was an alternative remedy that the applicant could have and must have pursued.
    
49. I will therefore not dwell on the two pre-requisites of sufficient standing and delay. The main issue to be dealt with as strongly argued by the first three respondents is that there is no arguable case for leave to be granted.
    
50. Is there an arguable case? The Director of Land stated in the notices of re-entry that the applicant PBL was in breach of section 4 and section 16 of the Crown Lands Act based on which the Director had re-entered the subject land. The notice did not provide the particulars of the breach.
    
51. To begin, I will first examine s. 4 and s. 16 of the Crown Lands Act.
    
52. Section 4 of the Crown Lands Act Cap. 132 states:-
    

"(1) Where the freehold estate of any person in land in respect of which a Crown grant or native grant has been issued is acquired by the Crown, the title to such land shall be taken in the name of the Director of Lands of Fiji for an on behalf of the Crown.

(2) Notwithstanding anything contained in the Land Transfer Act, upon the registration of any transfer of land to the Director of Lands for and on behalf of the Crown, or in respect of any land which is registered in the name of the Director of Lands for and on behalf of the Crown, the Registrar of Titles shall, if directed in writing by the Director of Lands, cancel, either in whole or in part, the title in respect of such land:

Provided that, in respect of any title against which are registered any encumbrances, no such direction shall be given, without the written consent of the encumbrancee. ..."

53. In my reading of s. 4 of the Crown Lands Act there is no obligation imposed on the applicant but the Registrar of Titles to cancel the lease upon written directions of the Director of Lands, notwithstanding the requirements that the Registrar of Titles may have to follow under the Land Transfer Act. The section also imposes on the Director of Lands an obligation not to direct the Registrar of Titles to cancel a lease without the written consent of any encumbrancee.
    
54. I do not see therefore as to how the applicant could have breached the requirements of section 4 of the Crown Lands Act. Perhaps the section was merely stated to indicate the powers of the Director of Lands and the obligations of the Registrar of Titles when the Director of Lands exercised his powers under the said section.
    
55. The breach is also alleged to be pursuant to section 16 of the Crown Lands Act. Section 16 of the Crown Lands Act Cap. 132 reads as follows:-
    

"(1) No person, who at the time of making his application for a lease or licence has made any arrangement or agreement to permit any other person to acquire by transfer or otherwise the land in respect of which his application is made, or any part thereof, or the applicant's interest therein, and does not inform the Director of Lands of the existence of such arrangement, shall become a lessee or licensee under this Act.

(2) Every person who wilfully commits, or incites, instigates or employs any other person to commit a breach of the provisions of this section shall be guilty of an offence against this Act.

(3)Any lease or licence acquired by breach of the provisions of this section shall be liable to be forfeited."

56. One must note that before the grant of the leases to PBL, PML had always held an interest in the land by way of an approval notice.
    
57. Furthermore the leases over the subject property were initially granted to PML before it was granted to PBL. The Director of Lands had issued the leases to PML on the 28th day of April, 2009 and had on the same day requested PML to execute the lease.
    
58. According to the terms of the notice to execute the lease, PML had three months to execute the leases. This notice was issued pursuant to regulation 27(2) of the Crown Lands (Leases and Licenses) Regulations. The section reads as follows:-
    

"Failure on the part of the applicant to execute the lease within 3 months of notice that such lease is ready for execution shall render the approval of the lease liable to cancellation."

59. PML had three months from 28th April, 2009 to execute the leases. However before the three months expired, leases over the same portion of the land were issued to PBL.
    
60. PML's interests in the unexecuted leases were still in existence when the leases were issued to the applicant PBL. The applicant was not entitled to be issued with any leases on the date it obtained the leases. There was an error in issuance of the leases to the applicant in the first place. If I am wrong in my analysis of regulation 27(2) of the Crown Lands (Leases and Licenses) Regulations, I still find that the applicant has grossly breached the provisions of s. 16 of the Crown Lands Act and regulation 4 of the Crown Lands (Leases and Licences) Regulations.
    
61. Regulation 4 of the Crown Lands (Leases and Licences) Regulation Cap. 132 states as follows:-
    

"Any person desiring to lease Crown land shall himself or by his agent appointed under his hand lodge an application in the appropriate form with the Director and the information required in the form of application shall be fully and correctly stated.

62. The person applying must also state the applicant's interest in the land and must also state whether any person has acquired the transfer or otherwise the land in respect of which he makes the application. If a person fails to make an application and declare his interest or of another person who has acquired the land by transfer or otherwise shall have his lease forfeited.
    
63. I have not located any application by PBL for issuance of the lease in its name. The Director of Lands also does not have any application in its records either. It is mandatory for any person who wishes to have a lease(s) over a portion(s) of land to make an application in an appropriate form.
    
64. The applicant in this case has also not declared its interest in the land nor the interest of the mortgagee DFL.
    
65. The least the applicant could have done was to declare its own interest in the land. The records show that it did not. Further, it is undisputed that the directors of PBL were the directors of PML until January, 2009, some 6 months before the leases were made out in the name of PBL. It is absolutely clear from the documents that PBL knew or ought to have known of DFL's interest in the said land. The interest of PML and DFL is crystal clear from the affidavits and the documents before the court.
    
66. I can only find clear breaches of regulation 4 of the Crown Lands (Leases and Licences) Regulations and s. 16 of the Crown Lands Act.
    
67. In cases of the breaches specified in the above paragraph, s. 16 of the Crown Lands Act provides the Director of Lands with powers to cancel the lease, which powers were properly exercised in the circumstances.
    
68. Section 16 of the Crown Lands Act which grants the Director the statutory powers to cancel the lease lays down no procedure by virtue of which the powers must be exercised but apparent from the affidavit is that the Director served notices of re-entry in respect of the three leases and simultaneously entered and took possession of the leases.
    
69. The notices were given pursuant to section 57 of Land Transfer Act, Cap. 131 and section 105 of the Property Law Act, Cap. 130.
    
70. Section 57 of the Land Transfer Act reads as follows:-
    

"The Registrar, upon proof to his satisfaction of lawful re-entry and recovery of possession by a lessor either by process of law or in conformity with the provisions for re-entry contained or implied in the lease, shall cancel the original of such lease and enter a memorial to that effect in the register, and the estate of the lessee in such land shall thereupon determine but without releasing the lessee from his liability in respect of the breach of any covenant in such lease expressed or implied, and the Registrar shall cancel the duplicate of such lease if delivered up to him for that purpose:

Provided that-

(a)...

(b) unless the re-entry and recovery of possession have been formal by process of law, the Registrar shall require notice of application to register the same to be served on all persons interested under the lease, or, failing such notice, shall give at least one calendar month's notice of the application by publication in the Gazette and in one newspaper published and circulating in Fiji before making any entry in the register."

71. The notices of re-entry were made out and served on the 8th day of February, 2010 and the possession was taken on the same day. The application for cancellation of the lease was made by the Director of Lands on the 18th day of March, 2010 and registered on the 24th day of March, 2010. At the back of the application for cancellation of lease there is a declaration made by one Laisenia Kidianaceva to the effect that re-entry and possession had taken place on the 8th day of February. There is also declaration to the effect that the notices were served on the applicant. There is no dispute that the applicant had not been served with the notices of re-entry. The declaration is sufficient evidence upon which the Registrar of Tittles was satisfied under the provisions of s. 57 of the Land Transfer Act to cancel the lease.

72. There has been no submission by the applicant at any stage to the effect that the provisions of the Land Transfer Act was not complied with before the leases were re-entered, taken possession of and then cancelled.

73. Section 4 of the Crown Lands Act however provides refuge to the Registrar of Titles in cases of non compliance with the provision of section 57 of the Land Transfer Act as long as the Registrar of Titles receives a written direction by the Director of Lands to cancel the lease. One may argue that the application that the Director of Lands had filed did not amount to a direction under s. 4 of the Crown Lands Act. I will not decide this issue conclusively as I am of the judgment that the provisions of s. 57 of the Land Transfer Act was complied with which properly determined the applicant's interest in the said leases.

74. The next section pursuant to which the notices of re-entry were served was section 105 of the Property Law Act. S. 105(1) in my reading is a provision which prescribes the right of re-entry or forfeiture under any proviso or stipulation in a lease for breach of any covenant or condition, express or implied, in the lease. The section further states the procedure prior to re-entry and forfeiture. The re-entry in this case was not done under any proviso or stipulation in the applicant's leases for breach of any covenant or condition of the said leases. The re-entry occurred for the breach of the provisions of the statue, in particular s. 16 of the Crown Lands Act.

75. No notice could or should be served under s. 105 of the Property Law Act as the section does not apply at all. The pre re-entry procedures under s. 105 of the Property Law Act requires the lessor to serve on the lessee a notice specifying the particular breach companied of; and if the breach is capable of remedy, requiring the lessee to remedy the breach; and in any case, requiring the lessee to make compensation in money for the breach.

76. Firstly I would reiterate that s. 105 is not applicable to the matter at hand and secondly if the Director of Lands as the lessor followed the procedures then the actions of the lessor would amount to recognising the existence or continuance of the lease. The lessor's position in this matter is that they had discovered that the applicant had taken advantage of "similar name" and obtained the leases in its name contrary to the provisions of s. 16 of the Crown Lands Act. When the errors in issuing the leases were discovered, the lessor immediately exercised its statutory powers to cancel the leases. The Directors action amounted to giving no recognition or existence or continuance of the lease. In my judgment that is the correct way of determining the leases under s. 16 of the Crown Lands Act for breach under the said section.

77. The leases were not even recognised by the lessor and the lessor in my judgment properly refused to give it any recognition because the applicant was not entitled to be issued with the leases in the first place. From the financiers point of view the leases issued to the applicant are not all binding on the mortgagees as they were issued without the consent of the mortgagees. There is no case at all against the mortgagee. Although the leases were not executed by PML, the interest of DFL was never extinguished as its right to have its encumbrance brought down on the leases existed indefinitely. That right is a statutory right as well and cannot be extinguished because of the change of lessee.

78. Section 55 of the Land Transfer Act Cap. States that:-

" No lease of mortgaged land shall be binding upon the mortgagee unless he has consented to such lease prior to the same being registered, and a memorial of such lease shall thereupon be endorsed by the Registrar on the original and duplicate instruments of such mortgage: ..."

79. Section 60 of the Land Transfer Act reads as follows:-

"Where in the case of a lease which is registered under the provisions of this Act and is subject to any encumbrances appearing in the register, a new lease is registered against the same land and the Registrar is satisfied that-

(a) it is in renewal of or in substitution for a lease previously registered,...

(2) in every such case the new lease shall be deemed subject to all encumbrances to which the prior lease is subject at the time of registration of the new lease..."

80.There is no material before me to suggest that the Director of Lands had obtained the consent of DFL before issuing leases to the applicant. With the Director of Lands failing to obtain the mortgagees consent, the applicant also took advantage of the situation in not disclosing the interest of the mortgagee. This is a greater wrong done by the applicant itself.

81.When the Director of Lands realised the very many reasons why the applicant was not entitled to be issued with the leases in the first place, it proceeded, and in my view correctly, to cancel the said leases. The Director of Lands action in cancelling the improperly issued leases to the applicant and subsequently issuing the leases to the proper lessee, PML was a bona fide act thus this action can not be maintained against the Director of Lands and the Registrar of Titles. Section 28 of the Crown Lands Act reads:-

"Neither the Director of Lands nor any authorised officer shall be liable to any action, suit or proceeding for or in respect of any act or matter bona fide done or omitted to be done in the exercise of the powers conferred by this Act".

82. I have concluded that the applicant does not have an arguable case for leave to be granted. I must not fail to deal briefly, however, with Mr. D. Sharma's argument that there is an alternative remedy that the applicant must have pursued in that it should have disclosed its interest and the interest of the mortgagee when applying for the leases. This s. 16 obligation is not an alternative remedy. Alternative remedy in judicial review cases always refers to internal appeals procedures which the applicants must exhaust before coming to court and asking for an order for certiorari. This argument holds no substance and I will not dwell on this any further.

83.I do not find that there was procedural impropriety in the cancellation of the applicant's leases and issuance of the new leases. Although the new leases and mortgages were in executed before re-entry and possession, the registration and issuance of the same was not until after the re-entry and possession had taken place.

84. Having considered the material before me I am not satisfied that the applicant has shown any proper basis on which leave to apply for judicial review should be granted. Nothing has emerged from the applicant's application which can be said to have raised any arguable questions adversely affecting or tainting the decision of the Director of Lands in cancelling the applicant's leases and granting the leases to PML.

Final Orders

85. The application for leave to apply for judicial review is refused.

86. I shall hear the parties on costs at a time to be appointed by court after consultation with all counsels.

87. The motion for dissolution of injunction must be assigned a date before his Lordship Justice Calanchini for hearing if Mr. D. Sharma so wishes to proceed with the same.

88. Orders Accordingly.

ANJALA WATI
Judge

06.08.2010