India Sanmargya Ikya Sangam of Fiji v Director of Lands [2011] FJHC 181; HBC204.2003 (23 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 204 of 2003

BETWEEN:

THE THEN INDIA SANMARGYA IKYA SANGAM OF FIJI
Plaintiff

AND:

THE DIRECTOR OF LANDS
1st Defendant

AND

THE ATTORNEY GENERAL OF FIJI
2nd Defendant

AND:

SATYA NADAN PILLAY son of Sundressan Pillai,
BAL KRISHNA MUDALIAR son of Murgessan Mudaliar and SHIU NADAN PILLAY son of Tangavellu Pillay all of RaviRavi, Ba, as duly elected President, Manager and Secretary of the RaviRavi Sangam School Committee.
3rd Defendants

AND:

DORSAMI NAICKER son of Murgessan Naicker,
NARAYAN SAMI son of Kannan and DHARMAIYA son of Rangaiya all of RaviRavi, Ba as the purported Trustees of RaviRavi Sangam School.
4th Defendants

APPEARANCES: Mr. Dorsami Naidu - Counsel for the Plaintiff
Mr. Turaga S.D. - Counsel for the 1st & 2nd Defendants
Mr. Ram Krishna - Counsel for the 3rd Defendant
Dates of Trial; 16th (&17th) of September 2010.
Written Submissions filed; 10th January 2011 by the 3rd Defendant.
Date of Judgment; 23rd of March 2011.

JUDGMENT

(1) The Plaintiff- "The Then India Sanmargya Ikya Sangam Of Fiji"- filed Writ of Summons on19/6/2003 against the 1st,2nd&3rd Defendants. His Lordship Connors J, by his order of 1/12/2004 gave the Plaintiff leave to join the 4th Defendants and made order that "the Trustees" (4th Defendants) be "stopped from interfering in the Management of the RaviRavi school and in calling the Annual General meeting until the determination of this action".

(2) The 1st Defendant is the Director of Lands, the 2nd Defendant the Attorney General of Fiji, and the 3rd Defendants are the President, Manager and Secretary of the Ravi Ravi Sangam School Committee, Ba.

(3) The 4th Defendants were joined as the purported Trustees of the Ravi Ravi Sangam School, Ba.

(4) The Plaintiff consequently filed the Amended Writ of Summons on 5th May 2005 seeking the following relief's in the Amended Statement of Claim;

"(a) Declaration that the Deed of Appointment of Trustees dated the 16th day of October 1999 is improper unlawful therefore the Appointment of the 4th Defendants as Trustees named therein is null and void.,

(b) Declaration that the Plaintiff is the proper party in whom all the property whether real and / or personal should be vested in.,

(c) That Crown Lease described as Lot 7, BA 2399 part of Ravi Ravi L.D-4/7/2193 on which stands Ravi Ravi Sangam School be transferred into the name of the Plaintiff.,

(d) Any other relief that to this Honourable Court appears just and equitable.,

(e) costs."

(5) The Statement of Defence of the 4th Defendants was filed on the 20/May/2008.

(6) This case was fixed for trial when all parties were being represented on 2/2/2010, for the 16th & 17th September 2010.

(7) On the 16th September 2010 when this case was taken up for trial the 4th Defendants were not represented or present and the Plaintiff moved that the 4th Defendants defence be struck out and for judgment on formal and minimum evidence. The 4th Defendants Defence was accordingly struck out subject to taxed costs to the other Defendants, and the Court proceeded to trial against the other Defendants. The 1st and 2nd Defendants stated that they were made nominal Defendants.

Background;

(8) There was no evidence led as to what happened to the original "Trustees" in whose favour the Crown lease may originally have issued as "Trustees" of the Ravi Ravi Sangam School, Ba. The Plaintiff seeks the Crown lease of the land on which the said school stands to be transferred in its name.

(9) The Minutes alleged by the Plaintiff of the General Meeting of 25/9/1994 resolving to vest the land in the Plaintiff and not in the Trustees, was also not led in evidence.

(10) It is the Plaintiffs position that RaviRavi Sangam School is registered with the Ministry of Education under the Plaintiff as Trustee or owners etc, however no documents from the Ministry of Education to that effect was led in evidence.

(11) In such a lacuna of background evidence this court was compelled to refer to the other documents in the 1st and 2nd Defendants bundle of Documents styled "DEFENDANTS BUNDLE OF DOCUMENTS" signed on the 16th September 2010, by Counsel for the State Mr. Turaga, to come to an understanding of the general background keeping in mind that they are not the documents marked and tested at the trial. The said bundle of documents consists of the correspondence the Director of Lands (1st Defendant) had with the Plaintiff and other contesting Defendants claiming the lease.

The general background gathered as above is as follows;

(12) The said lease is a 99 year lease and comes up for reassessment every 25 years. The last reassessment was in 1998. It is a "Protected lease". (vide Document 1 of the documents of the 1st & 2nd Defendant.)

(13) The 1st renting was by the Colonial Sugar Refining Company Ltd, to "The Committee", "The RaviRavi Sangam School Ravi Ravi" in 1952. (Document 2 of the 1st & 2nd Defendants Documents).

(14) By the letter of the Divisional Surveyor Western dated 13/4/95, the Plaintiff has been informed in answer to its request to transfer the lease in its name, that, the "Trustees of RaviRavi Sangam School" have already been issued with approval notice on the subject land and a lease will be issued on production of Deed of Trust by them". It further states; "should you wish to obtain lease in the name of Then India Sanmarga Ikya Sangam, then transfer formalities will have to be complied with." – ( Document 3 of the 1st & 2nd Defendant Documents.)

(15) There has been a previous Trust Deed of 30/11/1993 appointing Manikam, Narayan Sami Naidu and Dharmaiya as Trustees, drawing authority from an election at a "General Meeting of RaviRavi Sangam School Committee" as trustees. It refers to a "constitution of the school."(Document 4, of the 1st& 2nd Defendants bundle of Documents.)

(16) By letters of 13/4/95, 14/8/95 & 25/1/96 the Divisional Surveyor Western has repeatedly informed the Plaintiff that if it wants the lease to be in the name of the Plaintiff the transfer formalities will have to be complied with, otherwise, the Trustees of RaviRavi Sangam School has been issued with the approval Notice on the subject land.( Documents 3, 6 & 8 of the 1st &2nd Defendants Bundle of documents). The Divisional Surveyor Western appears to be the deputized officer of the Director of Lands for the Western Division.

(17) By an open letter dated October/9/2002, titled "To whom it may concern", the Divisional Surveyor Western has stated; "This is to certify that a new 99 years Educational Lease would be issued to the Trustees of Ravi Ravi Sangam School over Lot 7 BA 2399 with effect from 1.4.73." (Document 17 of 1st & 2nd Defendant's Documents.)

(18) By the subsequent letter dated 17/12/02 – the 4th Defendants seek clarification from the Divisional Surveyor Western as to who are the "Legal Trustees of RaviRavi Sangam School" as per the lease and the records of the Divisional Surveyor Western. (Document 18 of the 1st & 2nd Defendants bundle of Documents.)

EVIDENCE;

(19) The Plaintiff led the evidence of 2 witnesses, that of Janki Ram and Ponsami Naiker and marked in evidence exhibits P1, P2(a), P2(b), P3 and P4.

(20) By P2(a) the then Committee of the school seeks that as per the Deed of Trust the land be given on lease to the "Trustees" the 4th Defendants. However the person who has signed P2(a) as the "President" (2nd Witness for Plaintiff) gave evidence and stated that he signed it, and though it was dated "in 2000" he was President only up to 1999. He stated that the Secretary too has not signed it. However the said letter refers to a "General Meeting on 6/12/1998" which refers to a time when he was the President. In evidence he stated that there was no such General Meeting on 6/12/1998 and no such trustees were appointed. He further stated the school had no constitution of its own as referred to in P2(b).

(21) He stated he is not literate in English though the documents he signed, P2(a), is in English. Though he admitted signing P2(a) he denied the General meeting and the appointment of Trustees therein. When he gave evidence he was assisted by a translator (Court clerk ), and being under oath, this Court is more inclined to believe his evidence, than the contents of the document he signed which he now rejects and repudiates.

(22) It is sad that persons who could sign documents without understanding the contents therein are elected as Presidents of School Committees. But then at the same time they are elected from among those who are present and interested in the School at the General Meetings. Perhaps educated past pupils or professionals, or in the event of the dearth of all such persons it is appropriate for other Officers of the state to be called upon ex- officio to overlook such positions at least as Patrons in the interest of such Schools and their students. It is advisable to maintain a record of the office bearers as well as a copy of the attendance registers at General Meetings along with a duly signed copy of the Minutes in respect of School Committees or any meeting of Trustees at least as a record for reference at the Ministry of Education. It is in a school that students, the human resource of a nation, learn what responsible and permissible behaviour is in Society. Such matters are unfortunately not always capable of being included in School curricular and more often learnt by the students by observing the conduct and behaviour of members of School Committees.

(23) The 1st Witness for the Plaintiff one Janki Ram a past Vice President of the school too confirmed that the school had no separate constitution.

(24) Though Clause 1 of P2(b) states that the 4th Defendants are "duly appointed in accordance with the constitution of the school", the 4th Defendants (prior to being added as 4th Defendants) by their affidavit filed on 9/9/2004 at paragraph 5 states that they are not aware of any "written constitution of the RaviRavi Sangam School". The 4th Defendants who are supposed to have been appointed in 1998, were not aware of the constitution of the school under which they allege they were appointed, even by 2004!

(25) Even P2(a) by which the 4th Defendants seek to be made lessee of the land as Trustee, is also on a letter head of the school, with the Plaintiff's name above that of the school name, which signifies that, it is a school under the Plaintiff's control or under its umbrella.

(26) The documents P1,P2(a) & P2(b) are produced from the documents of the 1st & 2nd Defendants, and they are the ones sent by the 4th Defendants as well as the Plaintiff to seek the transfer of the lease in their names.

(27) The Plaintiff in 1995 made the first request for the said lease to be transferred to its name (P1). It is only thereafter that the 4th Defendant by P2(a) & P2(b) made the request to transfer the lease in their names. Even in P2(a), the letter-head bears the name of the Plaintiff at the top and it's "emblem" as well, signifying that it is the Parent body.

(28) Therefore the 4th Defendants too appear to have conceded to the Plaintiff's right as the Parent and controlling body of the said school.

(29) The recital in P2(b) –the "Trust Deed"- draws authority and existence from the General meeting of 6/12/1998 for the appointment of the "Trustees", the 4th defendants. In the absence of such a General Meeting the appointment or election of "Trustee" in P2(b) is a fiction.

(30) In a power of Attorney reciting the Principal's intended absence abroad and his desire to appoint an Attorney to act during his absence, the operative part, though unlimited, was held to be confined to the principal's absence, as limited by the recital. Derby vs Coutts & Co (1885) 29 chD.500. Halsbury's Laws of England 6th Ed.Vol.13, page 148 para 220.

(31) As such even if P2(b) may not be a fraudulent document, its very recital in the light of the evidence as aforesaid, negates the appointment claimed therein of the 4th Defendants as Trustees.

(32) The documents marked P2(b) – was marked without admitting same and for the purpose of seeking a declaration that it is null and void and that the appointment of Trustee's therein is void. P2(b) is strictly not a "Trust Deed" as the very trustees are appointing themselves trustees relying on an alleged resolution at a General Meeting said to have been held on 6/12/1998. It is not a Trust deed where, the trustees are appointed by the proprietor of the property or by a person who has an interest in the beneficiaries to appoint trustees. If P2(b) is a deed discharging trustees, it may be signed by the trustees, but it is not. P2(b) is one that is more "declaratory" than "appointing" in nature.

(33) The said "Trust deed" P2 (b) is not signed by the office bearers of the school committee who convened the said alleged General Meeting, as appointors (legal term for appointers of Trustees as used in the Charitable Trust Act etc.).

(34) Clause 5 of P2(b) gives the self appointed "Trustees" the power to "borrow moneys and mortgage the lands of the school as security". However very little or nothing is said therein about the objectives or duties of the Trustees for the betterment of the School.

(35) It is not in the interest of the Beneficiary school, for the land on which it stands to be leased in the name of "Trustees" who could be changed annually at a "General meeting" held pursuant to a non existent School Constitution.

(36) It is even more undesirable for such "Trustees" to be given such powers as to borrow moneys by mortgaging the said land. It is also not in the interest of the state to lease to such "Trustees" who could encumber the land to their benefit leaving the burden to subsequent "Trustees" to the detriment of the School as well as the state, especially when the lease is meant for an educational purpose for a long period of time.

(37) Though the parties to this action have not brought it to the notice of this Court, the particular lease appears to be a "Protected lease" under the Crown Lands Act, and as such requires the written consent of the Director of Lands for this Court to deal with the said lease. As no such written consent has been obtained, and on the Director of Lands being made a party and the Director of Lands having filed a defence seeking the Plaintiffs action be dismissed, this Court cannot assume such consent per se, even though the 1st Defendant states they have been made nominal Defendants.

Section 13(1) of the Crown Lands Act (Cap 132) reads as follows;

"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 Aereinafter called a proteprotected lease) it shall not be lawful for the lessee thereof to alienate or deal with the landrised in the lease of any part thereof, whether by sale, transfer or sublease or in any othy 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.

(2) On the death of the lessee of any protected lease his executors or administrators may, subject to the consent of the Director of Lands as above provided, assign such lease.

(3) Any lessee aggrieved by the refusal of the Director of Lands to give any consent required by this section may appeal to the Minister within fourteen days after being notified of such refusal. Every such appeal shall be in writing and shall be lodged with the Director of Lands.

(4) Any consent required by this section may be given in writing by any officer or officers, either solely or jointly, authorized in that behalf by the Director of Lands by notice published in the Gazette. The provisions of subsection (3) shall apply to the refusal of any such officer or officers to give any such consent.

(Inserted by 21 of 1959, s. 2)

(5) For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee."

(38) Therefore this Court shall only deal with the appointment of the "Trustees" by the purported "Trust Deed" P2(b), and declare upon their status, independent of the Crown land and the lease.

(39) It is for the Director of Lands to either recall the lease and grant it to the Plaintiff as Trustee, or await the appointment of Trustees and grant the lease to those Trustees on terms.

(40) This Court is of the view that the Plaintiff is a more suitable Trustee in that it has continuity and appears to be a better represented body than any Trustees appointed annually by a gathering under a non existent constitution. However the Plaintiff appears to be seeking to have the lease in its name rather than as "Trustees" of the Ravi Ravi Sangam School, which may well have led to the current impasse with the Director of Lands. This position of the Plaintiff appears to be based on a perception that it cannot hold property as a "trustee" under its constitution. However in the Memorandum and Articles of Association of the Plaintiff marked as exhibit P3 under the objects of the Plaintiff at article 3(o) one of the objects of the Plaintiff is to "undertake and execute any trust.." Article 3(r) further empowers it "to do all or any of the above things either as principals, agents, trustees or otherwise and by or through trustees..". Unfortunately this Court did not have the benefit of the Plaintiffs submissions on this aspect.

(41) However this Court cannot curtail the freedom of contract a lessor is entitled to, by declaring as to who should be granted a lease, given the evidence in this case. It is for the lessor the Director of Lands, the 1st Defendant, to exercise the discretion and duty imposed by statute as the custodian of state land, to grant the lease to a suitable party. In doing so the 1st Defendant may take the above view expressed as to suitability, by this court, in to consideration.

(42) The 4th Defendant has not shown interest in this case. They have not attended the Pre trial Conference, and as such the Plaintiff has filed Summons on 8/9/2010, to strike out the 4th Defendants defence. The 4th Defendants were represented when this matter was fixed for trial but still they were absent on the date of the trial and not represented.

(43) Previously interim order was made by Judge Connors on 1/12/2004 restraining the 4th Defendants till final determination of this action.

(44) Therefore, on the evidence available and on a test of probability this Court is inclined to consider the 1st declaratory relief only, sought in the prayer to the Amended statement of claim filed on 5th May 2005, to wit;

"(a) Declaration that the Deed of Appointment of Trustees dated the 16th day of October 1999 is improper unlawful therefore the Appointment of the 4th Defendants as Trustees named therein is null and void."

(45) The other relief's sought by the Plaintiff are;

"(b) Declaration that the Plaintiff is the proper party in whom all the property whether real and / or personal should be vested in.,

(c) That Crown Lease described as Lot 7, BA 2399 part of Ravi Ravi L.D-4/7/2193 on which stands Ravi Ravi Sangam School be transferred into the name of the Plaintiff.,

(d) Any other relief that to this Honourable Court appears just and equitable.,

(e) costs."

(46) There was no evidence led to establish whether Plaintiff was the "proper party" in whom all the property whether real and / or personal should be vested in". The registration of the Ravi Ravi Sangam School with the Ministry of Education under the Plaintiff, though alleged by the Plaintiff, was notably not led in evidence. The said relief appears to be sought as of right in relation to the said land and as such the Plaintiff must establish its right to ownership or such other proprietary right to be entitled to such a declaration. Being the better among a few Defendants does not by itself qualify the Plaintiff to be entitled to such a declaration which binds all and sundry. There was no legal provision or authority submitted by the Plaintiff that, such a "proper party" is in law entitled to such a declaration. Therefore this Court is not inclined to grant the declaration sought in prayer (b) above.

(47) In view of section 13 of the Crown Lands Act, as the consent of the Director of Lands had not been obtained for this Court to deal with the lease as yet, and in any event especially as this Court cannot encroach on the freedom of contract the lessor is entitled to, as aforesaid, this Court is not inclined to grant the declaration sought in relief (c) above. Though it may be interpreted that the prior consent of the Director of Lands is not required under section 13 of the said Act for this Court to proceed, still any order or judgment dealing with the land or lease is subject to the consent of the Director of Lands. As the relief in (b) above too is not granted by Court this Court is not inclined to grant the relief in (c) as well.

(48) This Court did not have the benefit of written submissions from the Plaintiff though the opportunity was provided by Court. Only the 3rd Defendants filed written Submissions after the trial in this case. The 1st, 2nd and 3rd Defendants are entitled to their costs as against the 4th Defendant as well as against the Plaintiff, as it turned out to be unnecessary litigation against the 1st, 2nd and 3rd Defendants.

Orders on Judgment;

1) The General Meeting of the Ravi Ravi Sangam School Committee, alleged to have been held on 6/12/1998 at which the 4th Defendants allege that they were appointed Trustees, in fact did not take place, and as such the 4th Defendants were not appointed Trustees of the RAVI RAVI SANGAM SCHOOL of Ba Fiji, and as such the Deed of Appointment of Trustees dated 16th of October 1999 and marked in these proceedings as P2(b) is herby declared null and void,

2) The Plaintiff is awarded taxed costs against the 4th Defendants only.

3) The 1st, 2nd and 3rd Defendants are awarded taxed costs against the 4th Defendants and against the Plaintiff.

4) The Deputy Registrar of Lautoka High Court is directed to forward a copy of this judgment to the Director of Education/ Minister at the Ministry of Education for his information.

.............................................
Hon. Justice Yohan Fernando.
PUISNE JUDGE.

High Court of Fiji
At Lautoka
23rd March 2011.