Arjun v Devi [2010] FJHC 38; HBC113.2009 (9 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 113 of 2009

BETWEEN:

ARJUN
f/n Padma Nathan aka Padma Navam of Dugapatu, Rakiraki,
Fiji, Machine Operator
Plaintiff

AND:

SAVITA DEVI
f/n Jag Mohan of Dugapatu, Rakiraki, Fiji, engaged in Domestic
Duties as the intended admisitratrix for the Estate of Brij Lal
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Ms N Khan for the Plaintiff
Mr D Gordon on instructions of Haroon Ali Shah Esq. for the Defendant

Solicitors: Natasha Khan Assocs. for the Plaintiff
Haroon Ali Shah Esq. for the Defendant

Date of Hearing: 28 January 2010
Date of Judgment: 9 February 2010

INTRODUCTION

[1] This is an application by Originating Summons for vacant possession under s 169 of the Land Transfer Act.

THE APPLICATION

[2] The Originating Summons filed on 13 July 2009 sought the following orders:

a. That the Defendant deliver to the Plaintiff vacant possession of ALL THAT piece of parcel of land known as Lot 2 on SO 4621 Tuvavatu (Part of) (remainder of Land in Crown Lease Number 6939) in the Tikina of Rakiraki in the province of Ra containing 6.1228 hectares comprised and described in Crown Lease No. 6939 TOGETHER WITH all improvements thereon ("the said property").

b. That the Defendants, their servants, agents or employees be restrained from interfering with the improvements on the said property in any way so as to deplete its value.

c. Such further or other relief as seems just and equitable to this Honourable Court.

d. Costs of this action.

[3] The Summons did not specify which limb of s 169 the Plaintiff was relying on but he is clearly within paragraphs (a) and (c) and possibly (d). In any event the point was not in issue.

THE FACTS FROM THE AFFIDAVITS

[4] The application was supported by the Plaintiffs affidavit also filed on 13 July 2009. The Plaintiff is the sole executor and trustee of the estate of his late father, Padma Nathan, also known as Padma Navan. His father died on 16 November 1995 and he was granted probate on 12 February 1996. His father’s estate included the land in this dispute, Crown Lease No 6939 of about 7 hectares of agricultural land in Tuvavatu in Rakiraki (the "lease"). The lease is declared to be a "protected lease".

[5] On 19 June 1996, the Plaintiffs father entered into a sale and purchase agreement of part of the lease with one Brij Lal (the "contract"). The property being sold was described in the contract as "approximately 6.1228 hectares out of 7.1228 Crown Land as comprised of lease No 6939, situated at Tuvavatu, Rakiraki" (the "land"). It is important to distinguish between the lease and the land because failure to appreciate this had led to some confusion in one of the cases that have been filed in this Court in respect of the same lease. It is also important to bear in mind that the contract is only in respect of the land and not the whole lease.

[6] Brij Lal died on 1 June 2002 and his widow, the Defendant, is being sued as the intended Administratrix of his estate. The land was sold together with an assignment of the sugar cane contract associated with it. The purchase price was $35,000 to be paid by way of a deposit of $10,000 into the trust account of the vendor’s solicitor and then paid out to the vendor "upon obtaining consent from the Lands Department". The balance of $25,000 was to be paid by the purchaser to the vendor from the cane proceeds. The full purchase price was to be paid by 31 December 2002. Until so paid, the cane crop and the land shall be deemed to be the property of the vendor. Brij Lal was to take possession on 1 January 1996 and pay all land rent from that date. Clauses 11, 14 and 15 of the contract are relevant. They provide that:

11 ... the purchaser shall be entitled to possession as from 1st day of January 96 and upon the granting of the necessary consent of the Lands Department and upon actual completion of the purchase, the purchaser shall become absolutely entitled to the possession of the premises.

.

.

14 ... the Vendor shall however pay all the costs for subdivision and other incidental expenses for the issuance of separate Title for approximately 1 hectare that is to be retained by the Vendor out of the said 7.1228 hectares.

15 ... any dispute that may hereafter arise between the parties hereto shall be referred to a single arbitrator if the parties hereto agree upon one otherwise of two arbitrators one to be appointed by either party and if the said arbitrator and the majority decision of the three arbitrators shall be accepted as final and binding upon the parties.

[7] The deposit has been paid but the balance has not been fully paid. On 28 April 2003, the Plaintiffs solicitors wrote to the Defendant giving her notice to complete the contract within 7 days making time of the essence. The letter acknowledged that the deposit had been paid and a further sum of $1,372 was paid from the cane proceeds but the balance of $11,280 remained outstanding as at 30 August 2002. There was also $1,151.04 which the Plaintiff had paid for arrears of rent on behalf of the purchaser. The letter put the Defendant on notice that if the outstanding balance plus the sum of $1,151.04 for arrears of rent making a total of $12,431.04 was not paid within 7 days the Plaintiffs solicitors would institute legal proceedings for vacant possession and all the moneys paid so far would be forfeited.

[8] The Defendant did not respond to the letter or pay the amount demanded so on 30 December 2003, the Plaintiffs solicitors wrote to the Defendant saying that since the demand for payment had not been complied with, the Defendant was required to give immediate vacant possession.

[9] Sometime in 2002, with the approval of Town and Country Planning, granted on 8 February 2002 the lease was subdivided in accordance with the contract into Lots 1 and 2, with Lot 2 being the area occupied by the Defendant (roughly 6 hectares), and Lot 1 being the area occupied by the Plaintiff (roughly 1 hectare). The Plaintiff was issued with a new registered lease, Crown Lease 15103 on 11 June 2004.

PREVIOUS PROCEEDINGS

[10] On 24 April 2004, the Plaintiff instructed Pillai Naidu & Associates to move this Court for an order for vacant possession in civil action HBC 114 of 2004. That action was defended and was eventually struck out for reasons which the Plaintiff says were not known to him.

[11] A further Originating Summons was filed by the Plaintiffs current solicitors in civil action HBC 188 of 2007 to evict the Defendant which eventually came to be heard by a Judge on 18 November 2008 and the judgment was delivered on 8 December 2008. His Lordship concluded:

[28] In concluding, I think it was inappropriate to file an originating summons and seek orders under the inherent jurisdiction of the court. A clear application under section 169 of Cap 131 would have required the defendant to show cause and might have brought the issues to a head. However these parties, if they must litigate, should each produce full evidence including documentary evidence and be subject to cross examination. The issue of the legality of the agreement could be one of the issues at trial but it would need better evidence than I have been given.

[29] Therefore, for lack of sufficient evidence to make necessary determinations, I dismiss both the plaintiffs originating summons and the summons filed by the defendant. The merits of that determination clearly lie with the defendant and costs are awarded in her favour. Rather than have costs taxed I will assess them summarily so that he matter is at an end. The proceedings have been continuously active since the first appearance by both parties on 20 July 2007 and on that basis I assess the costs at $1,100.

[12] With the greatest of respect, I think the Judge was wrong. The undisputed facts in this case are such that it can be appropriately determined by Originating Summons. Further, it is clear from His Lordships reasons that the "illegality" point was left open for later consideration so it is therefore open for me to decide it in this application.

THE LEGAL POINT FOR DETERMINATION

In my opinion, there is only one legal point which determines this dispute, and that is the application of s 13 of the Crown Lands Act which provides:

13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void. (emphasis added)

THE DEFENDANT’S CASE

[14] It is for the Defendant to show cause why she should not give up possession. Mr Gordon for the Defendant argued that the contract in this case was subject to a condition precedent. The contract was not to be binding until the Director of Lands approval was obtained. It was therefore not caught by s 13 of the Act.

[15] He conceded that no actual approval was obtained at the time the contract was signed. He also conceded that the contract was partly performed and the purchaser took possession and started cultivating the land at a time when no such approval had been obtained. However, he argued that certain obligations under the contract were conditional on the Director’s approval and for these obligations, approvals were infact obtained before they were carried out.

CONSIDERATION OF THE APPLICATION

[16] The lease in question is a protected lease within the meaning of the Act. The approval of the Director of Lands was not sought nor did he give his approval before the parties executed the contract. Did the vendor, by entering into the contract of 19 June 1996, did "alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same"? If he did then under s 13 the contract is null and void.

[17] I think this case falls squarely within the principle in the Privy Council decision of Chalmers v Pardoe [1963] 3 All E R 552.

[18] The facts in that case were that Mr Pardoe was the holder of a lease of native land. That land was subject to the equivalent of s 12(1) of the Native Land Trust Act which is in the exact same terms as s 13 of the Crown Lands Act, provides:

Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealing effected without such consent shall be null and void ... (emphasis added)

[19] Mr Chalmers was not only the solicitor but also a friend of Mr Pardoe. Mr Chalmers, on retirement and because of their friendship, was allowed by Mr Pardoe to occupy part of Mr Pardoe’s land and build his home. Mr Pardoe said in evidence that he told Mr Chalmers that he could build provided he got the necessary consent and permission of the NLTB. He was willing for Mr Chalmers to have a sublease or a direct lease following a surrender of that part of the land on which his house was built.¹ They had a falling out and Mr Pardoe claimed that this "friendly arrangement" was a "dealing" in native land and because the prior consent and permission of the NLTB had not been obtained, it was null and void. Mr Chalmers on the other hand argued that he had an equity in the land and that equity should intervene to prevent Mr Pardoe from taking the buildings for nothing.

[20] As to whether the "friendly arrangement’ amounted to a "dealing" with native land within the meaning of s. 12 of the Ordinance, Sir Terence Donovan, in delivering the speech of the Privy Council in Chalmers v Pardoe (supra), explained it as follows:²

Repeating this term, but without necessarily adopting it, the Court of Appeal held, as their lordships have already indicated, that the least effect which could be given to the "friendly arrangement" was that of a licence to occupy coupled with possession. Their lordships think the matter might have been put higher. "I gave him the land for nothing" said Mr Pardoe. Again, "He could get anything – a sublease or a surrender, which was perfectly correct..." And so on. In their lordships view an agreement for a lease or sublease in Mr Chalmers’ favour could reasonably be inferred from Pardoe’s evidence.

Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as Mr Chalmers and Mr Pardoe well knew, of erecting a dwelling-house and necessary buildings, it seems to their lordships that, when this purpose was carried into effect, a "dealing" with the land took place. On this point their lordships are in accord with the Court of Appeal: and since the prior consent of the Board was not obtained, it follows that under the terms of s. 12 of the ordinance, cap 104, this dealing with the land was unlawful. It is true that in Harman Singh and Backshish Singh v Bawa Singh [1958-59] FLR 31, the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s. 12, for there must necessarily be some prior agreement in all such cases. Otherwise there would be nothing for which to seek the Board’s consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the land without having the opportunity of considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s. 12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from Mr Pardoe: but whatever effect this might have on the remedies the Board would otherwise have against Mr Pardoe under the lease, it cannot make lawful that which the ordinance declares to be unlawful.

[21] In respect of Mr Chalmers’ claim for an equitable charge or lien over the land because of the substantial buildings he had erected on the land, the Privy Council in Chalmers v Pardoe (supra) said this:³

The claim is based on the general equitable principle that, on the facts of the case, it would be against conscience that Mr Pardoe should retain the benefit of the buildings erected by Mr Chalmers on Mr Pardoe’s land so as to become part of the land without repaying to Mr Chalmers the sums expended by him in their erection...

There can be no doubt on the authorities that where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land will be made over to the person so expending his money a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended.

(my emphasis)

[22] In Gonzalez v Akhtar [2004] FJSC 2; CBV00011.2002S (21 May 2004), the Supreme Court held that a contract for the sale and purchase of land entered into without the required prior approval of the Minister for Lands in breach of s 6(1) of the Land Sales Act was illegal and unenforceable. The Supreme Court approved the decision of Palmer J in Hunter v Apgar (1989) 35 F.L.R. 180 to the same effect.

[23] In my view, it makes no difference whether the contract was made subject to the Director’s consent or a condition precedent that the contract was not to operate until the Director has given his approval because, in the present case, the deposit was paid, the Defendant took possession and the contract partly performed. Indeed, no consent of the Director was ever obtained. Subsequent approvals by Town and Country Planning for the subdivision cannot validate the lack of consent of the Director before the parties signed their contract in 1996. This is clear from Gonzalez v Akhtar (supra) and Hunter v Apgar (supra).

THE OUTCOME

[24] The result therefore is that the contract of 19 June 1996 is null and void, illegal and unenforceable. It also follows that anything done pursuant to that contract is also null and void and unenforceable. Thus, the subdivision of the original Crown Lease No 6939 is unlawful and the issue of titles following that subdivision is also unlawful. It is not necessary to consider the effect of the provisions of the Subdivision of Lands Act. The Defendant is however, entitled to repayment by the Plaintiff for all monies paid pursuant to or under the contract to the Plaintiff or his father when he was alive. These points were not fully argued before me and even though the Originating Summons asked for such further or other order as seems just and equitable to this Court, I do not think I need to make any specific orders in respect of them and leave them to be the subject of other proceedings.

[25] As far as this application is concerned, the Defendant has no right to occupy because her rights flow from the contract of 19 June 1996 which is null and void, illegal and unenforceable for lack of the Director’s prior consent, so the Plaintiffs application therefore succeeds. I can delay eviction which I so do for 6 months. I also grant the relief sought in paragraph 2 of the Originating Summons.

COSTS

[26] In Judgment of 8 December 2008, the Plaintiff was ordered to pay the Defendant’s costs of $1,100 because the learned Judge thought that the Defendant won. I think the Plaintiff should have won in that application and he has won in this application so I award costs to the Plaintiff of $1,100.

ORDERS

[27] The Orders are therefore as follows:

a. The Plaintiffs application by Originating Summons filed on 13 July 2009 is granted in respect of paragraph (a) but is stayed for 6 months from the date hereof.

b. The Defendant, her servants, agents or employees are restrained from interfering with the improvements on the said property in any way so as to deplete their value.

c. The Defendant shall pay the Plaintiffs costs of $1,100 within 28 days.

Sosefo Inoke
Judge

________________________

Endnote:

1. [1963] 3 All E R 552, 556G
2. op cit at 557C
3. At p 555B