Deo v Director of Lands [2011] FJHC 511; HBC66.2011L (8 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 66 of 2011L

BETWEEN:

ROOP DEO
Plaintiff

AND:

DIRECTOR OF LANDS
Defendant

FINAL JUDGMENT ON ORIGINATING SUMMONS

Judgment of: Inoke J.

Counsel Appearing: Mr E Maopa (Plaintiff)
Ms S Chand (Defendant)

Solicitors: Babu Singh & Assocs (Plaintiff)
AG's Chambers (Defendant)

Dates of Hearing: 29 July 2011

Date of Judgment: 8 September 2011

INTRODUCTION

[1] The Agricultural Tribunal granted the plaintiff a declaration of tenancy over 15 acres of Crown C lease land at Veivadravadra in Sigatoka described as CG 566 LD A57/82 on 30 August 1995.

[2] However, the Director of Lands has refused to grant him a lease and he brings this application by originating summons for declarations and other relief to enforce the Tribunal decision.

CASE HISTORY

[3] The plaintiff says in his affidavit that he had been occupying and cultivating the land since 1982. In 1985 he applied to the Agricultural Tribunal for a declaration of tenancy which the Tribunal granted on 30 August 1995. Since then he has been paying yearly rental and conducted a survey of the land but the Director of Lands has refused to grant him the lease in compliance with the Tribunal decision.

[4] His solicitors wrote to the Divisional Surveyor Western on 13 April 1999 requesting allocation and facilitation of the lease. The plaintiff visited the Lands Department in Lautoka and was advised that he would be given residential land at Cuvu. His solicitors wrote another letter on 9 November 1999 to the Divisional Surveyor advising that their client would accept four of the quarter acre lots at Cuvu for his loss of the 15 acres lease. The Divisional Surveyor replied on 17 May 2000 saying that the matter had been referred to the Director for decision and he would be advised of the outcome in due course. On 25 September 2001 the Divisional Surveyor Western wrote to the plaintiff's solicitors advising that two residential lots in Cuvu, Lots 39 and 40 on plan NDSW 125C, had been approved for the plaintiff in exchange for the 15 acres land. However, a survey needed to be done for the Cuvu subdivision so the Divisional Surveyor advised the solicitors that they would be advised later. On 6 June 2002 the plaintiff's solicitors followed up the matter with the Divisional Surveyor. On 21 June 2002, the Divisional Surveyor replied informing the solicitors that the Cuvu subdivision had been delayed because of a landowners' claim over the land but the offer of 25 September 2001 still stood. Nothing seemed to have taken place because on 28 July 2006, the plaintiff's solicitors wrote to the Divisional Surveyor enquiring as to the status of the Cuvu subdivision. That was followed by another two letters dated 5 March 2007 and 5 May 2007. The Director of Lands replied on 17 May 2007 advising that the 15 acres at Veivadravadra was not available for lease because it had been leased to the National Trust of Fiji for 99 years from 1 May 1990 as National Park LD 4/11/1563 and the two lots at Cuvu may also not be available for sometime because of the landowners' claim still pending. The Director had discussed with the plaintiff the possibility of allocating other land in the Sigatoka area for him and was instructing the Divisional Surveyor accordingly. On 8 June 2007 the plaintiff's solicitors wrote to the Director of Lands noting that the plaintiff had been allocated land at Olosara which he would accept 10 acres of. On 25 June 2007, the Director of Lands replied saying that there were no 10 acres lots available but what he was looking for was two residential lots as in the Cuvu offer in the Sigatoka areas and Nadi-Lautoka area. The matter had been referred to the Divisional Surveyor for action. The solicitors followed up with a letter on 24 July 2007 to the Divisional Surveyor. On 1 August 2007, the plaintiff went and saw the Permanent Secretary for the Prime Minister for assistance. He then followed that up with a letter on 3 August 2007 and the documentation requested of him. The Permanent Secretary wrote to the Director of Lands on 15 August 2007 noting that this matter had remained unresolved for some 25 years and requesting that it be expedited. On 26 September 2007, the Permanent Secretary wrote to the plaintiff informing him that his best option was to issue a writ against the Director of Lands. Further negotiations followed and on 9 May 2008, the Divisional Surveyor wrote to the plaintiff's solicitors informing them that on 27 December 2007, the plaintiff had accepted two residential lots at the Kulukulu Subdivision, lots 3 and 4 on SO 5565; the Department was in the process of having the subdivision completed and a lease would be issued as soon as the survey plan was approved; and the plaintiff would be required to pay the associated costs such as "survey fees, stamp duty, registration and drawing charges". The solicitors replied on 21 August 2009, confirming that the offer was accepted but if the land could not be given then the plaintiff wanted $50,000 compensation. On 16 September 2010, the Permanent Secretary for Lands wrote to the plaintiff advising him to liaise with the Divisional Surveyor. The plaintiff's solicitors followed it up with a letter on 17 December 2010. The plaintiff, on his solicitors' advice, then went and saw the Divisional Surveyor and was told that the 15 acres at Veivadravadra had been leased to the National Trust. On 15 April 2011, the plaintiff's solicitors filed this originating summons.

[5] A senior surveyor in the Lands Department in Lautoka swore an affidavit in reply. He said on 9 March 1982, the plaintiff applied to the Lands Department for lease of 12 acres at Veivadravadra, LD A57/82. His application stated that he was staying on iTaukei land at Rakiraki at the time. The Department then carried out a detail survey of the land and issued a plan. The plan is dated 18-20 August 1986. They discovered that the plaintiff's father had built a small tin and timber house and planted peanuts on that land in an area of 4,755 square metres. The survey plan also showed that 14 other families were living on the land. On 21 June 1984, the Divisional Surveyor Western wrote to the plaintiff informing him that the land he applied for on 9 March 1982 for lease was not available because it was in a "closed area for mining under the mining act."

[6] In January 1984, the plaintiff paid $135 as land rental for 1 January 1984 to 31 December 1986. On 16 July 1984, the Department wrote to the plaintiff's then solicitor and informed him of what they had said earlier on 21 June 1984 that the area was not available for leasing; the money was received erroneously; and that arrangement was being made to refund it. A payment voucher for the amount was raised on 5 December 1984 and a cheque was sent under cover of a letter to the plaintiff's solicitor and received by him on 6 December 1984. The solicitors wrote back on 10 December 1984 disputing that the money was paid in error saying that the plaintiff was advised that the land was available for lease and returned the cheque. The solicitors said they were instructed to issue legal proceedings.

[7] The plaintiff applied to the Tribunal for a declaration of tenancy on 17 December 1985, even after being advised that the land was not available for leasing. On 3 July 1990, the Director of Lands granted an approval to lease the land to the National Trust. On 8 November 1991, the Divisional Surveyor wrote to the plaintiff's then solicitor and informed him that the land in question was less than 2.5 acres and consequently outside the jurisdiction of the Tribunal. On 30 August 1995, in the absence of the Department's representative, the plaintiff formally proved his application for declaration of tenancy over the 15 acres which had already been granted to the National Trust. The Department applied to set aside the Tribunal decision but the application was dismissed. The Director does not deny the offers to resettle the plaintiff in the other lands and would issue an approval notice to the plaintiff in the meantime pending completion and approval of the surveys.

[8] The plaintiff did not file an affidavit in response.

THE TRIBUNAL DECISION

[9] The reasons for the Tribunal decision of 30 August 1995 were as follows:

... On the day of the hearing, no one from the Attorney General's Chambers appeared on behalf of and nor was there any officer from the Director of Lands. The Deputy Tribunal then decided to proceed to formal proof.

The applicant told the Tribunal that he had made an application and paid the appropriate fees for the 15 acres of land vide revenue receipt number 1500026 of 9/3/82. A Mr Surend of the Lands Department gave the applicant verbal approval after which the applicant cleared the bush, built a house and cultivated the land. A $400 survey fee was paid by the applicant to Surend in 1983 but no receipt was given despite repeated request for one. Thereafter, the applicant has been paying land rent at the rate of $3 an acre totalling $135 for 15 acres for the year 1984 for the period ending 31/12/86, 8/11/85 for the period ending 31/12/89, on 24/5/88 for the period ending 31/12/95 and on 3/2/95 for the period ending 31/12/98.

The applicant had continuously cultivated the 15 acres land from 1982 until about 1987 even though this application was made in December 1985.

The other witness for the applicant was a Mr Pauliasi Daunoco, a registered surveyor who said he surveyed the land in question on instructions from the applicant. The survey was made with reference to the survey pegs from the Lands Department. He had prepared a survey plan which has, plotted on it, the house of the applicant.

I am satisfied with the facts before me that this is a proper case where a tenancy should be declared and it is ordered accordingly.

THE ORIGINATING SUMMONS

[10] The plaintiff sought the following orders in his originating summons:

1. A declaration that the defendant is negligent in failing to implement the judgment of the Tribunal dated 30 August 1995 and or failing to allocate to the plaintiff land described as Crown Land CG 566 LD A57/82 at Veivadravadra, Sigatoka.
   
2. A declaration that the plaintiff is entitled to be registered as a tenant/lessee on the said land and any other purported person or intended tenant/lessee on the same land is declared a trespasser. Thus the judgment be registered on the said land.
   
3. An order that the defendant executes forthwith a tenancy and or lease document in favour of the plaintiff in respect of the said land or in the alternative, the defendant pays compensation to the plaintiff in the sum of $55,000.
   
4. An order for costs and damages to be assessed.
   

CONSIDERATION OF THE APPLICATION

[11] Counsel for the defendant submitted that this application is statute barred because of s 4(4) of the Limitation Act which required actions upon a judgment to be brought within 12 years of the date the judgment became enforceable.

[12] I do not think I need to consider the submission because there is a more fundamental point than that. I think the decision of the Tribunal cannot be allowed to stand because in my opinion, the plaintiff had misled the Tribunal. His application was heard ex-parte and the onus was on him to fully and frankly disclose the facts: South Pacific Aquatic Inc v Information Technology Services (Fiji) Ltd [2001] FJHC 97; Hbc0411j.2001s (5 December 2001). He did not tell the Tribunal in 1995 that he applied on 9 March 1982 for a lease of the land and was rejected by the Director of Lands because the land was "closed"; he did not tell the Tribunal that he was told in June 1984 that the land was not available for lease; he did not tell the Tribunal that the rent he paid in 1984 for 1984-6 was reimbursed to his solicitors but they rejected it; he did not tell the Tribunal that the Divisional Surveyor informed his then solicitors that the land he occupied was less than 2.5 acres and could not be decided upon by the Tribunal. It seems that all these matters were not disclosed to his new solicitors.

[13] I do not think the decision of the Tribunal granting the plaintiff a declaration of tenancy should be allowed to stand or be enforced because the plaintiff failed to fulfil his duty of full and frank disclosure that he owed the Tribunal. As quoted in South Pacific Aquatic Inc (supra):

"...... the court ought not to go into the merits of the case, but simply say, 'we will not listen to your application because of what you have done'."

[14] But there is a more compelling reason for me to refuse this application. Had all the facts leading up to 1995 been put before the Tribunal, no reasonable Tribunal would have granted the declaration of tenancy.

[15] I would dismiss the plaintiff's application. I think he should consider himself lucky that he had been offered alternative land.

COSTS

[16] The plaintiff should pay the defendant's costs which I assess as $800.

ORDERS

[17] I therefore order:

• (a) The plaintiff's originating summons is dismissed and the declarations sought therein are refused, and
  
• (b) The plaintiff shall pay the defendant's costs of $800 within 28 days.
  

Sosefo Inoke
Judge