Native Land Trust Board v Kumar [2011] FJHC 45; HBC277.2008 (11 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Case No. HBC 277 of 2008

In the matter of the Land Transfer Act (Cap 131)
And in the matter of Native Lease No. 10343

BETWEEN:

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act, Cap 134.
Plaintiff

AND:

SATISH KUMAR
f/n Mahendra Prasad of Legalega Sector Road, Nadi.
Defendant

Before: Master Anare Tuilevuka
Counsel: Board's Legal Officer for the Plaintiff
In Person – Defendant
Date of Ruling: 11th February 2011

RULING

[1]. Before me is an application by NLTB under section 169 of the Land Transfer Act (Cap 131) against the defendant to show cause why he should not give up possession to NLTB of native land known as "Vunaviri" in the Tikina of Nadi and in the province of Ba containing an area of 13 acres 1 rood and 8 perches as comprised in Native Lease No. 10343 - NLTB reference 4/10/15553 ("land in question"). The main ground of the application is that a leasehold over the land in question had expired and that as such, the defendant, who had come to stay on the land on some arrangement with the NLTB tenant - has no colour of right whatsoever to remain on the land.

[2]. Mr. Soloveni Masi, NLTB's Acting Manager, South Western Division (and within whose division the land in question is situated) deposes in his affidavit that the land has an area of 13 acres 1 rood and 8 perches. A copy of the relevant lease annexed to Masi's affidavit shows that the land was first leased by NLTB to one Ganga Prasad f/n Ram Lal for 30 years effective from 1st July 1952 at the yearly rental of 6 pounds. The lease expired on 30th June 1982 and was extended for a further 20 years from the 1st day of July, 1982 under the Agricultural Landlord and Tenant Act Cap 270. On 18th February 1991, the lease was transferred and registered to one Allen Prasad and the lease expired on 30th June 2002. The tenant was given a one (1) year grace period which expired on 30th June 2003.

[3]. I gather from a probate tendered by Mr. Kumar that Allen Prasad died on 18th December 2001and that probate over his estate was granted to Mr. Kumar on the 26th of March 2004. By that time of course, the lease had long expired.

[4]. Kumar, according to Masi, came to be on the land by arrangement with Ganga Prasad f/n Ram Lal – who was the original NLTB tenant over the land in question. Kumar continues to occupy the leasehold after the expiration of the lease. He lives on a lean-to shack on the land.

[5]. Masi deposes that NLTB first served on Kumar a Notice of Unlawful Occupation on the 23rd of July 2003 – but to no avail. The second such notice was issued on 8th March 2005. Then – pursuant to these notices, NLTB instituted eviction proceedings at the Nadi Magistrates Court in 2005 (NLTB v Satish Kumar - MBC No. 64 of 2005).

[6]. But that case was struck out on 26th November 2008 for want of jurisdiction because Kumar had pleaded that the land in question was in fact state land – which raised an issue over the status of the land.

[7]. Just a day after MBC No. 64 of 2005 was struck out - NLTB served yet another Notice of Unlawful Occupation on Mr. Kumar on 27th November 2008.

[8]. Meanwhile – I gather from Masi's affidavit that there is another sitting tenant namely Tikendra Prasad f/n Ganga Prasad who had raised the same argument as Kumar when faced with court eviction proceedings. That case – namely Tikendra Prasad v NLTB Civil Action No. 419 of 2003 – was an injunction application to restrain NLTB from evicting Tikendra Prasad from the land in question. A copy of the related ruling of Madam Justice Philips dated 16th May 2008 is annexed to Masi's affidavit.

[9]. Masi says that NLTB wants to enter into a new tenancy arrangement and Prasad stands in the way by his continuing unlawful occupation.

[10]. The file records will show that I had given Kumar several opportunities to file an affidavit in opposition but to no avail. When it became clear that he was having difficulty putting together an affidavit, I fixed a hearing date anyway. On the date of hearing, I heard submissions first from Mr. Tuifagalele and then put Kumar on oath to hear him out.

[11]. In Court, Kumar came with various documents which he spread out across the table and even on the sitting benches. I was determined that I was not going to dissuade him from being heard in this court so I said nothing about the array of documents all over the court room.

[12]. Kumar said on oath that his father and extended family have lived on that land for many years. The following documents he then handed up to me:

Exhibit No.	Description of Document
01.	Unregistered copy of Transfer of one undivided share in N.L. 10343 to Satya Kumar f/n Tikendra Prasad.
02.	Survey Plan of Vunaniu, Tikina Nadi, Province of Ba
03.	Memorandum of Lease – NL 2849 (cancelled)
04.	C.T. Register 24 Folio 2439 (wholly cancelled) - Irrelevant
05.	Instrument of Tenancy under ALTA between Suresh Chandra Gosai (landlord) and Mahendra Prasad f/n Ganga Prasad over C.T. 24756 12A 3 R OP being lot 27 DP 2905 part of Lands comprised in C.T No. 9959 and Lease No. 69094 known as Nasau (part of)
06.	Memorandum of Lease – NL 10343 NLTB 4/10/1553 issued to Ganga Prasad for 30 years commencing 01.07.52. Transferred to Allen Prasad on 18.02.91.
07.	C.T. Register Vol. 37 Folio 3607 (wholly cancelled)
08.	Sealed Order of Resident Magistrate Sahu Khan striking out NMC 64/05 for want of jurisdiction.
09.	Order of Resident Magistrate S.M Shah sealed on 30th August 2007 in NMC 133/07 restraining the Nadi Town Council and Anand Raju, Namaka Market Master from interfering with Kumar from running his stall business.
10.	Letter from Agricultural Tribunal to Kumar dated 2/6/04 advising that his application for declaration of tenancy over WD 5/04 was refused as Kumar, as trustee of estate of Allen Prasad, already had tenancy.
11.	Probate with Will annexed of late Allen Prasad granted to Kumar on 08th December 2001.
12.	C.T 6932 (wholly cancelled) CT 9735 (cancelled)
13.	Transfer document – NL 10343 to Allen Prasad
14.	Plan of Road Resumption in Matavolivoli

[13]. Mr. Tuifagalele submits that some of the documents that Mr. Kumar relies on actually confirm NLTB's case. Exhibit No. 1 for instance is the Native Lease on which Kumar is occupying illegally and which is the subject matter of the very eviction proceeding now before the Court.

[14]. In this case, the defendant is not saying that he lives outside the boundary of the land in question. If that had been his argument – then – in my view, the onus would have been on him to adduce evidence of such as a surveyor's report marking out the boundary of the said land and also marking out the location of the defendant's house.

[15]. In this case, what the defendant is arguing is that the land in question is actually a piece of crown land not native land. But such general allegations are insufficient even to amount to an averment worth the Court's time. Ironically, I say that having given him all the time in the world to produce every document in his possession which might remotely raise a possibility that he might be telling the truth.

[16]. I share the sentiment that Phillips J made when dealing with Tikendra Prasad when facing eviction from the same piece of land:

"This case illustrates the desperate attempts tenants of expiry leases will go to, to remain on the land. Notwithstanding his lack of forthrightness evinced during the hearing, I have much sympathy for the plight that Mr. Tikendra Prasad finds himself in....However, I am bound to apply the law. The evidence conclusively established that the property that Mr. Prasad considers his own was in fact contained within an expired native lease which belonged to his father and which was transferred to his brother

[17]. Had the defendant at least produced some sort of a surveyor's report to map out the location of his homestead and the legal description of the land on which it purportedly sits – he might have succeeded in convincing me to decline the application. I grant order in terms of the application. The defendant has 31 days from the date of this ruling to vacate Native Lease No. 10343 - NLTB reference 4/10/15553. I award costs against the defendant in the sum of $250-00 to be paid in 31 days.

Anare Tuilevuka
Master

At Lautoka
11th of February 2011.