Chand v Pal [2011] FJHC 191; HBC127.2010L (28 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 127 of 2010L

BETWEEN:

PRAKASH CHAND
Plaintiff

AND:

RAJ PAL
1st Defendant

AND:

FIJI SUGAR CO-OPERATION
2nd Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. K. Qoro for the Plaintiff
Mr. H. A. Shah for the 1st Defendant

Solicitors: Messrs Qoro Legal for the Plaintiff
Haroon Ali Shah Esquire for the 1st Defendant

Date of Hearing: 25 October 2010
Date of Judgment: 28 March 2011

INTRODUCTION

[1] This is a dispute over a cane farm which is seen all too often in this Court. The farm is registered in the First Defendant's name. He now lives overseas and since his departure the farm has been occupied and farmed by the Plaintiff and the Plaintiff's brother, each farming his own portion of the farm. The relationship between the First Defendant and the Plaintiff went well until the First Defendant decided to take the side of the Plaintiff's brother.

[2] On 28 June 2010, I granted interim orders ex-parte in favour of the Plaintiff restraining both the Defendants from stopping him harvesting his sugar cane crop. The orders also froze the cane payments from being paid out, except for payment of land rent to the Native Land Trust Board (NLTB), until further order.

[3] The substantive application came for hearing before me on 25 October 2010. The Second Defendant, FSC, was excused from attending and did not participate in the hearing. This is my judgment after that brief hearing.

THE APPLICATION

[4] The application was by Originating Summons in the expedited form filed on 28 June 2010 pursuant to O 29 r 1 and O 7 r 2 of the High Court Rules 1988. It sought the following orders:

1. That 1st Defendant by himself and/or his servants and/or his agents and/or whosoever be restrained from either physically or verbally or howsoever from interfering with the Plaintiff in cultivating and harvesting sugar cane grown on section 112 Lovu and on all that native land known as Nasauniwaqa No. 2 situated in the Tikina of Ba in the Province of Ba and containing an area of 17 acres on native lease with NLTB Ref: 4/7/2062 until the determination of the Agricultural Tribunal Ref W/D 05/10.
   
2. That 2nd Defendant by themselves and/or their servants and/or their agents and/or whosoever be restrained from releasing and/or paying out all current and future cane proceeds standing in the name of 1st Defendant as Grower 0199 Sector 112 Lovu to the 1st Defendant and/or his servants and/or his agents and whosoever until the determination of the Agricultural Tribunal Ref W/D 05/10.
   
3. That an Order that costs of this application be paid by the 1st Defendant.
   
4. That any other Orders this Honourable Court deems just and equitable.
   

[5] It was supported by Prakash Chand's affidavit in which he says that the First Defendant Raj Pal, who now lives in Australia, is the registered lessee of approximately 27 acres of sugar cane farm land. The land is native land registered as Native Lease No 13052. Although Raj Pal is registered as the grower, he has been living in Australia all this time so it is he, Prakash Chand, who has been farming 17 acres of the land since 1995. Prakash Chand's brother, Pravin Chand, has been farming the other 10 acres of the farm.

[6] Prakash Chand says that in 1995 Raj Pal agreed to sell the farm to him for $40,000. He paid Raj Pal $11,000 as a deposit. The balance was to be paid from the sugar cane proceeds from the farm. Rental payments were deducted from the cane payments from the cane cultivated by him. But on 9 March 2010 solicitors acting for Raj Pal sent an eviction notice requiring him to vacate the farm within 30 days. He did not agree with the notice so he instructed his solicitors to file an application for relief against eviction and forfeiture and for declaration of tenancy under the Agricultural Landlord and Tenant Act (ALTA) in the Agricultural Tribunal which they did on 12 April 2010. This application is listed for mention on 20 July 2010 to fix a date for hearing. Since 16 June 2010, he says the Fiji Sugar Corporation (FSC) has told him that he can no longer cultivate the farm because Raj Pal has given that right to his brother, Pravin Chand, instead. He harvested 360 tonnes of sugar cane last year and he was hoping to harvest 350 tonnes this year until stopped by Raj Pal. He says Raj Pal gave him a power of attorney in 1989 until 1995 when it was given to his brother. He says until now he was authorised to operate Raj Pal's ANZ Bank account and withdraw funds but the authority has been withdrawn and given to his brother. The cane harvesting season started 4 days ago and he stands to lose the whole of the proceeds from the cane he planted on his 17 acres of the farm.

THE FIRST DEFENDANT'S RESPONSE

[7] The First Defendant, Raj Pal, who resides in Sydney, Australia, did not file an affidavit in response personally but instead authorised his attorney, Pravin Chand (the Plaintiff's brother) holding a registered power of attorney on his behalf, to swear the affidavit on his behalf. Pravin Chand says "the Plaintiff is in unlawful occupation of Native Lease No 13052; there is no consent to the Plaintiff's occupation and any alleged dealing between the Plaintiff and the 1st Defendant". Pravin Chan says that he is the one living on the land and cultivating it. He denies that there was an agreement between the Plaintiff and the First Defendant for the Plaintiff to buy the farm. He explains that the Plaintiff was only assisting the First Defendant by being allowed to live on the land.

CONSIDERATION OF THE APPLICATION

[8] There is no update as to the status of the application before the Tribunal for a declaration of tenancy in favour of the Plaintiff. In my interim judgment of 28 June 2010 I cited case authorities to the effect that this Court does not have jurisdiction to evict persons such as the Plaintiff in this case under s 169 of the Land Transfer Act occupying agricultural land under the Agricultural Landlord and Tenant Act (ALTA): Azmat Ali v Mohammed Jalil & NLTB [1986] FJCA; Civ App 111 of 1985; Reddy v Krishna [2009] FJHC 221; HBC114.2008L (9 October 2009).

[9] I also expressed some doubt as to whether the Tribunal could grant interim injunctive relief. Mr Qoro has, since the hearing, given me a copy of a judgment by Dyke J of this Court which has dispelled such doubt. That decision is In Re ALTA and Shiu Phula HBC 481 of 1981L (4 February 1982). In that case Dyke J was asked to decide whether the Tribunal had power to make an interlocutory order freezing cane proceeds. His Lordship held that there were no provisions in ALTA which gave the Tribunal such powers and the Tribunal therefore acted ultra vires in freezing cane proceeds until final determination of the dispute.

[10] His Lordship also held in that case that, despite the Tribunal being given wide and exclusive powers to determine disputes over ALTA land, this Court nevertheless has jurisdiction to intervene where the Tribunal acts ultra vires the Act.

[11] Mr Shah urged me to follow my decision in Arjun v Devi [2010] FJHC 38; HBC113.2009 (9 February 2010). But that decision is about State land and therefore does not apply in this case.

[12] In my interim judgment I said the injunctive orders sought in this case were to operate until the determination of the Agricultural Tribunal of the application for declaration of tenancy and thought this Court should have some measure of control over its orders so I granted the injunctions subject to them being in force until further order of this Court. Having reviewed this matter after receiving the First Defendant's affidavit material I am not convinced that I should change my initial ruling.

COSTS

[13] There is no reason shown to depart from the normal rule that the Plaintiff is entitled to his costs, including the costs of the interim application, which I summarily assess as $1,500.

ORDERS

[14] I therefore order as follows:

1. That First Defendant by himself and/or his servants and/or his agents and/or whosoever be restrained from either physically or verbally or howsoever from interfering with the Plaintiff in cultivating and harvesting sugar cane grown on section 112 Lovu and on all that native land known as Nasauniwaqa No. 2 situated in the Tikina of Ba in the Province of Ba and containing an area of 17 acres on native lease with NLTB Ref: 4/7/2062 until the determination of the Agricultural Tribunal Ref W/D 05/10.
   
2. That Second Defendant by themselves and/or their servants and/or their agents and/or whosoever be restrained from releasing and/or paying out all current and future cane proceeds standing in the name of First Defendant as Grower 0199 Sector 112 Lovu to the First Defendant and/or his servants and/or his agents and whosoever until the determination of the Agricultural Tribunal Ref W/D 05/10.
   
3. That the First Defendant shall pay the Plaintiff's costs of $1,500 within 21 days.
   

Sosefo Inoke
Judge