Arjun v Director of Lands [2011] FJHC 353; HBC207.2010L (21 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 207 of 2010L

BETWEEN:

ARJUN father's name Padma Nathan aka Padma Navam of
Dugapatu, Rakiraki, Fiji Machine Operator
Plaintiff

AND:

DIRECTOR OF LANDS appointment under the Crown Lands

Act situated at Government Buildings in Suva.
Defendant

FINAL JUDGMENT
Judgment of : Ms Dias Wickramasinghe J.

Counsel : Ms Natasha Khan for the Plaintiff

: Mr Ropate Green for the Defendant

Solicitors : NKA Associates for the Plaintiff

Attorney-General's Office for the Defendant

Date of Judgment : 21 June 2011

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Keywords:	Section 6 (1) of the Land Sales Act, Section 13 of the Agricultural Landlord and Tenancy Act, Section 13 of the Crown Lands Act (Cap 132); lease when expired cannot be extended.

INTRODUCTION

[1] The defendant by its summons, moves this court to determine a preliminary legal issue, i.e. whether the applicant, an Australian citizen requires the consent of the Minister of Lands under s. 6(1) of the Land Sales Act [Cap 137] to obtain an extension, after the expiry of the lease period, of an agricultural land.
[2] I heard the parties on the issue on 26 May 2011. Parties also filed written submissions.

[3] Mr Green states that he is relying on the affidavit in reply filed by the plaintiff on 12 April 2011 and the affidavit of Walmik filed on behalf of the defendants on 20 January 2011, in support of his argument.

[4] Both counsel concede that the plaintiff was an Australian citizen on 16 November 1995.

TAXONOMY

[5] The plaintiff filed two affidavits; first, the affidavit in support of the originating summons and second, the affidavit of Arjun in reply to the affidavit of Walmik. I find that the marking given in both these affidavits follows the same numbering commencing A1 to A9 in the affidavit in support of the originating summons and A1 to A6 in the affidavit of Arjun in reply to the affidavit of Walmik. For clarity and convenience, I have referred to these two affidavits as follows.

• (a) Affidavit in support of Arjun file with origination summons – P 1
• (b) Affidavit of Arjun in reply to the affidavit of Walmik - P2
  

BACKGROUND FACTS

[6] The plaintiff in his originating summons of 22 October 2010 and the supporting affidavit dated 17 October 2010 deposes that he is the sole executor and trustee of the estate of his father Padma Nathan aka Padma Navan, deceased on 16 November 1995. The probate was granted on 12 February 1996 (A1). The Will, bequeath part of crown lease No 6939 (land) to the plaintiff and his mother Muniamma in equal shares and the balance part to the plaintiff's sister Kamaciamma and his mother in equal shares.

[7] The land, which is a protected crown lease, was leased to the plaintiff's father for 33 years and 9 months, in 1973, which expired on 30 September 2006 (P2 - A 5). Both mother and the sister of the plaintiff had sold their beneficial interest they received under the Will to the plaintiff, pursuant to a Sale and Purchase Agreement, in 2002. (P1-A3- the document is undated).

[8] On 11 June 2004, part of the land had been surrendered back to the State and the variation of the lease had been registered by the plaintiff as sole executor and trustee. The rent too was re-assessed, increased, and registered on 11 June 2004.

[9] Admittedly, the plaintiff migrated to Australia, and as at 16 November 1995 was an Australian citizen. He had applied for his dual citizenship on 13 October 2010. Mr Walmik, who filed the affidavit on behalf of the defendant states that the Director of Lands was unaware of this change of status of the plaintiff's citizenship and in fact the department file discloses the plaintiff's residence as Rakiraki. (W13 and W14). He also deposed that the plaintiff had never sought the statutory approvals for any of the transfers executed by him.

LEGAL MATRIX

[10] The facts of this case requires the consideration of three statutes viz, the Crown Lands Act - s 13 - as the land is a protected lease; Agricultural Landlord and Tenancy Act (ALTA))- s 13- as the land is an agricultural land; and Land Sales Act -s 6(1)- as the plaintiff is a non-resident.

[11] Section 6(1) of the Lands Sales Act (Cap 137) which, refers to purchase of land by non-residents, requires such non-residents to obtain the prior written consent of the Minister before executing any contract to purchase or to lease any land. Replete of cases had considered this issue and the precedent as at today stands that the section is not prohibitory of the non residents purchasing lands in Fiji; it is only declaratory or regulatory where the Minister's consent should be obtained prior to the 'dealings' and not subsequent. The rationale for this prior consent is to facilitate the Minister to make an informed, well-considered decision, thereby enabling the Minister to impose necessary terms and conditions or even prohibit the transaction. Therefore when parties make 'dealings'; i.e, when the parties are committed to the transaction with a firm understanding of the project, Minister's consent should be obtained before any further transactions. Viz, payments of deposits to the landowner either directly or through solicitors trust accounts or executing any deeds. In my mind, the parties at its best could only execute a Memorandum of Understanding with a firm understanding of the project but without deriving legal rights. Narayan v Narayan [2011] FJCA 22;ABU0037.2010 (10 March 2011); Gonzalez v Akhtar [2004] FJSC 2- CBV 00011.2002S (21 May 2004); Sakashita v Concave investment Ltd [1999] FJHC 4; [1999] 45 FLR 13 (5 February 1999); and Hunter v Apgar [1989] FJHC 40; [1989 35 FLR 180 (15 September 1989).

[12] Section 13 of the Agricultural Landlord and Tenancy Act (ALTA) (Cap 270) stipulates that at the termination of a contract of a tenancy created before 1976 or extended pursuant to ALTA will be entitled to be granted a single extension of the contract of tenancy (or a further extension, as the case may be) for a period of twenty years subject to the conditions stated in the said section. The lease in the instant case was executed in 1973.

• [13] Section 13 of the Crown Lands Act (Cap 132) 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 or 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.

(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. (Emphasis added)

(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. (Emphasis added)

(4) Any consent required by this section may be given in writing by any officer or officers, either solely or jointly, authorised 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.

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

DEFENDANT'S CONTENTION

[14] Mr Green argues that the protected lease, when expired reverted to the State, and any alienation or dealing thereafter is then within the Minister's discretion; the plaintiff's application therefore cannot be considered as an extension but could only as a new lease; and since the plaintiff is a non citizen, the Minister's prior approval is a pre-requisite, under s. 6(1) of the Land Sales Act.

[15] In support of his argument Mr Green relied on several cases including the case of Ministry of Lands and Mineral Recourses v Rafiqan Bi et al Judicial Review No HBJ 01 of 2007 (Labasa) where Singh J said:

' ....... that lease had expired and therefore land reverted to the State. Absent of clear known policy to the contrary the department had the discretion to grant the lease to any one of the persons who applied for it. The applicant had lodged no application so they had no right to be heard...'.

PLAINTIFF'S CONTENTION

[16] Ms Khan submits that the plaintiff's application for an extension is made as the executor and trustee of the estate of Padma Nathan and not in his personal capacity. She also states that under s. 13 of the Agricultural Landlord and Tenancy Act, agricultural leases are automatically extended for 20 years if the tenancy does not fall under the exceptions stated in the section, which she says is not contested by the defendant. She further states that the plaintiff upon approval of the extension, is required to distribute the property according to the Will and it is only then that the plaintiff is required to obtain the Minister's approval before registering his share.

[17] Ms Khan submits that application for extension under s 13 of ALTA does not require the Minister's consent under s 6 of the Land Sales Act as the application is made as the 'executor and trustee of the plaintiff's father's Will'. She argues that the plaintiff's case does not fall within the ambit of s 6 of the Lands Sales Act, therefore should be distinguished from a normal application by a non- resident purchasing land in Fiji. Perhaps if the plaintiff's application was not made on his behalf for his personal gain and was made only to protect and execute the rights of his father's will, as executor and trustee, then the citizenship status of the plaintiff might not be an issue. However, that is not what had happened in this case.

[18] The events that had taken place in this case are different to Ms Khan's submissions. The plaintiff had already purchased his mother's and sister's share for a consideration of $1,000 each pursuant to a sales & purchase agreement in 2002. He was as at that date an Australian citizen. Ms Khans's submission that the property is hitherto to be distributed is therefore erroneous. Furthermore, the origination summons before me is also for declarations inter alia:

• (i) That the plaintiff is entitled to an extension of Crown Lease No. 6939 for 20 years in terms of the Agricultural Landlord and Tenants Act with effect from January 2007 and the defendant should process the same forthwith in the name of the plaintiff only and not to anyone else.
  

(ii) An order that the defendant not process issuance of the crown lease No. 6939 in another person's name till the determination of this case.

Clearly, the origination summons and the sales & purchase agreement disclose that the plaintiff's application is not made as executor and trustee of the Will, but for his personal gain.

ANALYSIS OF FACTS AND LAW

[19] The land in issue is a protected lease under the Crown Lands Act. Section 13 (2) of the Crown Lands Act stipulates that on the death of the lessee of any protected lease, his executors or administrators may, subject to the consent of the Director of Lands, assign such lease. When the mother and sister of the plaintiff transferred and assigned their rights to the plaintiff in 2002 (undated), for a consideration of $1000 each and natural love and affection, such assignment required the consent of the Director of Lands. An agreement made without the Director of Land's consent is a nullity as provided for in s 13(1) of the Crown Lands Act.

[20] Since the land in issue is admittedly an agricultural land, the plaintiff could have made an application as the executor and trustee for an extension, subject to satisfying the conditions stated in section 13 of ALTA. I am however not inclined to agree with Ms Khan's argument that the statutory extension stipulated in s 13 of ALTA is automatic. A plain reading of the section clearly envisage that the Director of Lands must be fully satisfied after due investigation that the conditions in section 13 of ALTA are duly met, before approving the extension. If the conditions are not met, the Director of Lands can refuse the extension. The statutory extension is not automatic.

[21] Receipt No. 258773, at P1-A 7- dated 14 February 2007, paid as renewal fees is evident of the fact that the plaintiff made an application for extension after the lease expired. I am inclined to agree with Mr Green's submissions that an application for extension should be made before it expires, as thereafter it reverts back to the State.

[22] As held in the case of Ministry of Lands and Mineral Resources v Rafiqan Bi et al (supra), upon termination, a leased cannot be extended. The rationale of this principle is that after the expiration of the lease the rights of the parties cease to exist. Therefore, the application for an extension must necessarily be made before the lease expires. An application made after the expiry of the lease would have to be considered by the Director of Lands as a new lease. I therefore determine that when the lease period of crown Lease no. 6939 expired, it reverted to the State. I also determine that the application of the plaintiff for an extension was made in the personal capacity, for his own personal gain and not as the executor and the trustee. The plaintiff's application would therefore be subject to section 6 of the Land Sales Act, which required the consent of the Minister under s6 of the Land Sales Act before further dealings.

[23] Mr Walmik, in his affidavit deposes there had been several litigations relating to the same land. He states that in one such case, His Lordship Inoke J has already determined that the sale and purchase agreement entered into by the plaintiff and Barij Lal (s/o Gajhari) dated 19 June 1996 relating to part of the same land is null and void for want of consent of the Director of Lands. Arujun v Savita Devi [2010] FJHC 38; HBC113.2009 (9 February 2010).

ORIGINATION SUMMONS

[24] The crown lease no 6939 between the parties at paragraph 30 provides:

'this contract is subject to the provisions of the Agricultural Landlord and tenant Act 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 whether arising out of this contract for the decision of which the Act make provision shall be decided in accordance with such provisions'.

[25] As I said earlier, the originating summons seeks a declaration of this court that the plaintiff is entitled to an extension of crown lease no 6939 for 20 years under ALTA.

[26] The lease agreement at paragraph 30 clearly states that all disputes and differences relating to agricultural land under ALTA should be determined under the Act. Section 22 of the ALTA states that disputes between landlord and tenant should be determined by the tribunal set up by the Act. When an alternative remedy is available, the parties must first seek such alternative remedy before invoking the jurisdiction of this court.

[27] The plaintiff has filed a supporting affidavit and documents along with his originating summons, which I considered at length.

[28] I have not called submissions from the parties relating to my jurisdiction to hear the originating summons. However, the law is very clear and I do not need further submissions to determine this issue, i.e that I do not have jurisdiction to hear the plaintiff's action. The plaintiff must necessarily submit any dispute relating to his application for an extension of the crown lease, first before the agricultural tribunal and not before the High Court.

[29] Due to the foregoing reasons, I hold that I have no jurisdiction to hear and determine the origination summons and I therefore dismiss the origination summons of the plaintiff.

[30] I am informed by Mr Green that receipt No. 258773, at P1-A 7- dated 14 February 2007 was paid to consider an extension, but the administrative process was halted due to this case and the uncertainty of the plaintiff's status quo. Since I have already determined that the crown lease land no. 6939 has reverted to State, the Director of Lands is free to consider a fresh application made by the plaintiff for a new lease subject to the prior written consent of the Minister under s 6 of the Lands Sales Act.

COSTS

[31] Having considered the documents filed before me and the five mention dates and one hearing date, I summarily assess Costs at $775, to be paid by the plaintiff to the defendant.

ORDERS

1. Plaintiff's origination summons dismissed.
2. The plaintiff to pay the defendant $775 as Costs within 21 days hereof.
   

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Ms D. Dias Wickramasinghe
Judge