Panjali v Dugu [2010] FJHC 618; Civil Action 12 of 2010 (19 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION 12 OF 2010

BETWEEN:

PANJALI
PLAINTIFF

AND:

SULITA DUGU
DEFENDANT

Mr S Prasad for the Plaintiff
Mr P Lomaloma for the Defendant

JUDGMENT

By summons dated 19 March 2010 the Plaintiff required the Defendant to show cause why she should not give up immediate possession of land situated at Wailevu, Labasa known as Lot 1 and 5 on M2794, Lot 7 on M2795 and Lot 31 on M29667, part of Wailevu and Rara on Crown Lease No 12083 (the land) to the Plaintiff. It is an application under section 169 of the Land Transfer Act Cap 131 (the Act).

In support of the application, the Plaintiff swore an affidavit on 12 March which was filed with the Summons on 19 March 2010.

The application was opposed by the Defendant who swore an affidavit on 30 March which was subsequently filed on 9 April 2010.

The Plaintiff filed a brief reply affidavit on 13 May 2010. Pursuant to leave the Defendant filed a further affidavit on 24 May 2010 and the Plaintiff filed one further affidavit on 9 July 2010.

Counsel for both parties presented oral submission on 9 July 2010 at Labasa.

The application for ejectment is brought under section 169 of Act which, states:

"The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

If the Plaintiff establishes that she comes within one of the three categories under section 169 then the onus shifts to the Defendant to show cause why she should not give up possession. This is the effect of section 172 of the Act which states:

"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge, a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit:

Provided that the dismissal of the summons shall not prejudice the right of the Plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:"

The proceedings are summary in nature and material is adduced by affidavit.

The Plaintiff became on 18 May 2001 the registered lessee of Crown Lease No 12083 which consisted of the various parcels of land described therein. The lease expressly stated that it was a protected lease under the provisions of the Crown Lands Act Cap 132 (now referred to as the State Lands Act – see section 3 (f) of the Interpretation Act Cap 7 as amended by Decree 35 of 1989 and Act No 6 of 1998).

The following terms were expressly included in the lease:

• The lessee shall not transfer, sublet, assign or part with the possession of the whole or any part of the demised land ... without the written consent of the lessor first had and obtained (see Clause 2).
  
• In the event of any breach by the lessee of any covenant or condition in this lease the lessor may enter upon and take possession of the lease .... (see Clause 27).
  
• This contract is subject to the provisions of the Agricultural Landlord and Tenant Act (ALTA) and may only be determined whether during its currency or at the end of its term, in accordance with such provisions. All disputes and differences whatsoever arising out of this contract for the decision of which this Act makes provision shall be decided in accordance with such provisions (see clause 30).
  

It was not disputed that there was a dwelling house on the leased premises. It was also not disputed that the dwelling house was in a bad condition and in need of urgent maintenance.

At some stage after acquiring the lease, the Plaintiff and the Defendant entered into an agreement whereby the Defendant occupied the dwelling for a monthly rental of $150.00. The Plaintiff claimed the arrangement started in January 2007. The Defendant claimed that occupation commenced in about January 1999. It is unlikely to have commenced that early as the Plaintiff became the registered lessee in 2001. On the material before me I am satisfied on the balance of probabilities that the Defendant had occupied the dwelling house for some years and had done so as a tenant paying rent to the Plaintiff.

There was before me one written tenancy agreement signed by the parties for the period 1 January 2008 to 31 December 2008. The monthly rental is stated as being $150 payable on or before the first of each month, in default of which the tenant is to vacate the property without any further notice given for payment.

The Plaintiff claimed that the Defendant had not paid any rent since February 2009. The Defendant claimed that the rent was paid up to September 2009.

By letter dated 21 December 2009 the Solicitors acting for the Plaintiff served a notice on the Defendant as follows:

"AS SOLICITOR for my above named client I hereby demand and give you notice to quit and deliver up the vacant possession of my client's premises suited on Crown Lease no. 12863 suited at Wailevu, Labasa which you are currently in occupation, full particulars whereof are well known to you. My client very humbly requests the vacate the said premises in order for my client to do the necessary renovation and for personal use.

PLEASE TAKE NOTICE that if you fail to give up vacant possession of my client's said premises within 30 days hereof together with $56.25 being costs of this notice paid into my office, my client will have no alternative but to institute legal proceedings against you for eviction holding you responsible for all the costs and expenses incurred thereby."

The Defendant admitted receiving the notice. The reference in the notice to Crown Lease 12863 is clearly a mistake as the lease is No. 12083. The Plaintiff served the Notice on the basis that the house needed urgent repairs and was required for the Plaintiff's own use. The Plaintiff's affidavit in support of the application alleges in paragraph 5 that the Defendant had failed and or neglected to pay the agreed rental since February 2009. Paragraph 6 states that the Plaintiff served a notice for vacant possession on the Defendant on 21 December 2009.

The inference from these two paragraphs following consecutively as they do is that the non payment of rent was the basis of the Notice for vacant possession. Then paragraph 9 of the affidavit refers to a request for vacant possession to renovate the house.

It would appear that during the course of 2009, the Ministry of Land and Mineral Resources (the Ministry) on behalf of the Director of Lands as lessor had become involved.

This was in part due to the lease being protected and to the land being classified agricultural. The Ministry's involvement as lessor is relevant to this application. In a letter dated 2 September 2009 addressed to the Defendant and her husband, the Ministry's Divisional Surveyor Northern stated:

"...

Please be advised that the rental dealing you entered into with our lessee Panjali is illegal because the lease is for Agricultural purpose and not for Residential use. Even if Panjali had applied, we would not have consented to any Letting Agreement.

By a copy of this letter, I am advising the lessee to rectify this breach.

Please be advised that your ten (10) years of occupation does not allow you to lease that area as the arrangement was done illegally and also the fact that you only occupied a house but not cultivating the Agricultural land.

You will have to negotiate with the lessee on the possibility of subdividing the area to accommodate you. In the meantime we will recognize Punjali as our legal tenant, as her lease is still current."

There is no material before me to indicate what transpired after that letter was received by the parties until the Plaintiff's Solicitor's sent the Notice dated 21 December 2009 to the Defendant. Two days later, by letter dated 23 December 2009 the Ministry's Divisional Surveyor North wrote to the Plaintiff in the following terms:-

"You are leasing 6.7026ha of Agricultural Crown Lease ... 12083. The subject land comes under the provisions of the Agricultural Landlord and Tenant Act (Cap 270).

Section 37 (1) (a) of the Act states:

A landlord may terminate his contract of tenancy and may recover possession of an Agricultural holding without notice where the tenant deserts such holding and leaves if uncultivated and unoccupied for a period of not less than twelve months and owes rent for a period.

Section 37 (1) (b) (i) states:

Where the tenant sublets, assigns or subdivides such holding without having previously obtained the consent in writing of the landlord which consent shall not be unreasonably withheld."

A recent inspection on the site has revealed that you have deserted the subject land and also not cultivating or operating the said holding in a good husbandry manner and instead have allowed one Mr Dugu to rent your house and hence you are in gross breach of the aforesaid sections of the Agricultural Landlord and Tenant Act Cap 270.

You are therefore hereby notified in accordance with Section 37 1(a) and 37(1) (b) (i) of [ALTA] that you are hereby given thirty (30) days from the date hereof to rectify the above breaches, failing which it is my intention to cancel by re-entry your CL 12083.

TAKE NOTICE that failure on your part to comply with the above requirement within the specified time will render this lease liable for cancellation without further notice."

Then by notice dated 19 March 2010 the Ministry entered and took possession of the land described in Crown Lease 12083.

Under Section 169 of the Act the Plaintiff carries the initial burden of establishing that he is a person who falls into at least one of the categories of persons described in the section. In her affidavit in support the Plaintiff appears to be claiming that she falls into both category (b) and category (c).

This aspect of the application raises three issues. The first concerns section 13 of the State Lands Act and may be more accurately described as an issue relating to jurisdiction. The second issue concerns the legislative provisions and the lease clause that prohibit sub-letting. The third is what effect re-entry by the lessor has on the application that is before the Court.

In relation to the question of jurisdiction, so far as is relevant, section 13 of the State Lands Act states:

(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 State Lands Act"

(hereinafter called a protected lease) ... nor, except at the suit or with the 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, ...."

Therefore the consent of the Director is required for the lease to be dealt with in any civil proceedings or under any court process. Does an application for ejectment amount to the lease between the Director and the Plaintiff being dealt with in any court proceedings or under any court process. It is my view that had the Director's written consent been obtained for the sublease to the Defendant, then the present proceedings would be caught by the requirement. However, in the present case, it was not suggested that the Director had given his consent to the sub lease.

Counsel for the Defendant submitted the Plaintiff was required to obtain the consent of the Director before commencing the proceedings. He also submitted that the correspondence passing between the Director of Lands and the Solicitors for the Plaintiff dated 23 and 24 December 2009 did not constitute consent.

The Court must determine whether the Plaintiff was required to obtain the consent of the Director to enable his application to be dealt with by this Court. In Indar Prasad and Bidya Wati –v- Pusup Chand (2001) 1 FLR 164, Gates J (as then was) observed at page 166 (supra) that this is a different issue from that of whether the occupier occupied the relevant State Lease without the prior consent of the Director of Lands. However, on the question whether the Plaintiff was required to obtain the Director's written consent, His Lordship stated on page 166 (supra) that in a case where the Director had not consented to the sub lease which was, as a result null and void the position was that:

"The ejectment of an occupier who holds no lease is therefore not a dealing with a lease. Such occupier has no title. There is no lease to him to be dealt with."

I have concluded that in the present case, there was no requirement for the Plaintiff to obtain the Director's consent to make the application under section 169 of the Act. This is the result of my finding that the sublease was null and void. The basis of that finding is the next issue for consideration.

The statutory prohibition against entering into a sub lease without the consent of the Director first had and obtained is also set out in section 13 of the State Lands Act which states:

"... it shall not be lawful for the lessee (of a protected lease) to alienate or deal with the land comprised in the lease or any part thereof, whether by sale, transfer or sub lease, 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 ...

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

In Indar Prasad (supra) his Lordship discussed this provision at some length, noting at page 170 that:

"Whatever the nature of the permission granted to the Defendant (by the Plaintiff) to occupy the relevant State land, it was clearly unlawful because it lacked the Director's consent .... The Director has had no prior opportunity to evaluate the Defendant as a suitable tenant of the State, the very purpose for the consent provision."

As a result the lease between the Plaintiff and the Defendant was prohibited by the Act and is illegal and void. The legal principles applicable in such cases are explained by Devlin J in St. John Shipping Corporation –v- Joseph Rank Limited [1957] 1 QB 267 at page 283:

"... the court will not enforce a contract which is expressly or impliedly prohibited by statute. If the contract is of this class it does not matter what the interest of the parties is: if the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not."

It follows that the Plaintiff cannot be classified as a lessor with power to re-enter or as a lessor acting under a legal notice to quit for the purposes of section 169. This is because the Plaintiff entered into a sublease which was illegal and void. However, she may still apply to recover possession of the land on the strength of her title. Her right to possession does not depend on the illegal sublease but on her being the registered lessee of the State Lease granted to her by the Director. (See Northern Hotels Limited –v- Gordon C Oliver (1980) 26 FLR 93 at page 106).

The Plaintiff was the last registered lessee and as such the last registered proprietor of an interest in the land (see section 2 definitions).
Up to this point then, the Plaintiff has satisfied the preliminary requirement of establishing her standing.

As for the Defendant, she cannot rely on the sub lease to justify her continuing in possession because of its illegality. However, the Defendant submits that the action by the Director in issuing the Notice dated 19 March 2010 means that the State Lease to the Plaintiff has been determined. That Notice stated:

"TAKE NOTICE that I have on this day entered into and taken possession of in the name of the Director of Lands of Fiji on behalf of the (State) a certain piece of land known as Lot 1 and 5 on M2794, Lot 7 on M2795 and Lot 31 on M2967 Part of Wailevu and Rara in the district of and in the province of Macuata and containing an area of 6.7 ha Crown Lease No. 12083 dated 11 November 1993 on non-compliance of subletting condition."

Clause 30 of the State Lease provided that the lease could only be determined during its currency in accordance with the provisions of ALTA. The notice dated 23 December 2009 setting out the grounds upon which the Director relied for re-entry and taking possession which was required under sections 37 and 38 of ALTA was served on the Defendant.

It is clear that in subleasing to the Defendant without the consent of the lessor (the Director of Lands) the Plaintiff has not only entered into an agreement which is illegal and void, but has also breached the lease and provided the grounds for the lessor to re-enter and take possession. The Plaintiff has breached section 37 of ALTA and a term of the lease agreement.

The right of re-entry which became exercisable as a result of the breach by the Plaintiff is a right to determine the lease by the Director and has the result of bringing the lease to an end earlier than it would otherwise terminate.

The Notice issued on behalf of the Director clearly indicated an intention to re-enter and take passion. However re-entry (or forfeiture) actually takes place when there is physical re-entry. When the premises consist of open land, it is permissible for the lessor to physically re-enter part of the property in the name of the whole and consequently securing part of the premises is sufficient. (See Woodfall: Landlord and Tenant Vol 1 at para 17.089).

There is no material before the Court to enable it to determine whether the Director has physically re-entered the property.

Furthermore, there is a further issue concerning the application of section 57 of the Act and whether the Director has completed the requirements set out in that section.

In the event that re-entry has been effected and the Director has taken physical possession of the property then the Plaintiff has no right to an Order from this Court that the Defendant deliver vacant possession of the property to the Plaintiff.

Under the circumstances the issues that remain to be determined require the joinder of the Director of Lands and further evidence. The Court cannot make a summary order in terms sought by the Plaintiff.

The application is dismissed and the Plaintiff is ordered to pay the Defendant's costs on a party party basis to be agreed and if no agreement to be taxed.

W D Calanchini
JUDGE

19 August 2010
At Suva