Chand v Director of Lands [2012] FJHC 842; Civil Action 74.2011 (8 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil action No. 74 of 2011

BETWEEN:

DR. SHRI CHAND, the Sole Executor and Trustee of the estate of Hari Chand of 183 Main Street, Huntly 3740, P.O. Box 203, New Zealand, Medical Practitioner.
PLAINTIFF

AND:

THE DIRECTOR OF LANDS
1st DEFENDANT

AND:

BAL RAM alias SHIU SHARAN RAM alias SHIV SHARAN DASS (occupation not known to the plaintiff) of Nadi in the Republic of Fiji Islands.
2nd DEFENDANT

Before: Master Anare Tuilevuka.
Appearances: Mr. Hari Ram of Rams Law for the Plaintiff.
:Ms. S. Chand of the Office of the Attorney-General for the 1st Defendant.
:2nd Defendant In Person.

Date of Ruling: Wednesday 08 February 2012.

RULING

INTRODUCTION

[1]. This is my ruling on the plaintiff's application for costs against the Director of Lands in the sum of $1,500-00 (one thousand five hundred dollars only). No formal application in the form of a summons has been lodged. Mr. Ram had simply made the application verbally from the bar table on 23 January 2012 which was the date of the hearing. He appears to be of the view that the Director of Lands had relented to his client's claim when he (i.e. the Director) withdrew a certain Notice to Re-Enter Lease on a piece of land which vests in an estate over which his client is the sole executor/trustee. In resisting costs, Ms. Chand argues that the Agricultural Tribunal is the proper forum to deal with the issues. The land in question is Lot 2 on ND 5129 part of Nakoke formerly CT 3000 (farm 2280) in the district of Nadi in the province of Ba and containing an area of 3.9052 and registered as Crown Lease No. 6454. The land is in fact an agricultural lease.

THE NOTICE TO RE-ENTER LEASE

[2]. The Notice to Re-Enter the lease was issued by the Divisional Surveyor Western on 18 August 2010 under sections 57 of the Land Transfer Act and 105 of the Property Law Act[1]. Thereafter, letters were written between Mr. Ram (for the plaintiff) and the Office of the Divisional Surveyor Western. In these letters, Mr. Ram argued that the Notice was null and void while the Divisional Surveyor Western was unrelenting to pressure to withdraw the notice.

THE ORIGINATING SUMMONS

[3]. Against that background, Mr. Ram filed an Originating Summons on 19 May 2011 seeking an Order that the Notice to Re-Enter the lease be declared null and void. Mr. Ram also seeks an Order that the second defendant do give vacant possession of the land and that he be restrained from entering the property.

THE WITHDRAWAL OF THE NOTICE

[4]. Sometime in August 2011, the Director of Lands decided to withdraw the Notice. That decision was communicated to Dr. Shiri Chand[2] vide a letter dated 16 August 2011. No explanation is offered by the Director of Lands[3] as to why it decided to withdraw the Notice.

[5]. I observe that at the time the decision was communicated to Mr. Ram (i.e. 16 August 2011), this matter had only been called over in court before me on one previous occasion (i.e. on 07 June 2011). The first call-over was on 07 June 2011. The second was on 30 August 2011. On 30 August 2011, Mr. Lewaravu appeared for the Director of Lands and advised that the Notice had been withdrawn and that Mr. Ram was contemplating withdrawing the claim. The matter was then adjourned to 22 September 2011, then to the 17 October 2011, 08 November 2011, 29 November 2011 and then finally to 23 January 2012 for hearing.

[6]. I note that between 30 August and 29 November 2011, Mr. Ram was either seeking time to file an affidavit in reply[4] or was bemoaning the defendants[5] lack of compliance with directions or was seeking an adjournment to serve his affidavit[6] and finally – to insist on a hearing date[7]. To this date, Mr. Ram has never filed a Notice of Discontinuance against either of the defendants.

[7]. On 23 January 2011, some five months after the Notice was actually withdrawn by the Director of Lands, Mr. Ram appeared for the plaintiff and advised that the plaintiff has no subsisting claim against the 1st defendant. However, he wanted costs to be summarily assessed against the 1st defendant at $1,500-00 (one thousand and five hundred dollars).

ANALYSIS

[8]. The land in question is an agricultural lease with an area of 3.9052 hectares. It is caught under the Agricultural Landlord & Tenants Act (Cap 270) by virtue of section 3[8] of the Act. As such, any Notice to Re-Enter Lease must be issued pursuant to the provisions of ALTA[9]. The Director of Lands' Notice to Re-Enter Lease is lacking in this regard. But, having said that, the plaintiff's Originating Summons is similarly flawed because the remedies being sought therein ought to be raised before the Agricultural Tribunal. Section 22(1)(g) of ALTA specifically bestows upon the Tribunal the jurisdiction to grant relief against eviction, re-entry or forfeiture in respect of any holding. This is the crux of Ms. Chand's submissions and I totally agree with her[10]. There is an ever growing accumulation of cases in Fiji where the High Court is declining jurisdiction over similar cases[11]. I need not go over these. In the final, I refuse to award any costs to the plaintiff against the first defendant.

[9]. At this juncture, I will remind Mr. Ram that he has not filed any Notice of Discontinuance against the 1st defendant. The case is adjourned to Thursday 16 February 2012 for mention.

Anare Tuilevuka
Master

At Lautoka.
03 February 2012.

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^[1] The Notice also mentions the Crown Lands Act without setting out any particular provision.
^[2] Copied to Mr. Ram.
^[3] Affidavit of Walmik sworn on 28 November 2011.
^[4] On 22 September 2011, Mr. Haroon Ali Shah appeared for Rams Law and sought time to file an Affidavit in Reply. He is also on record to have said that the plaintiff wished to discontinue against the first defendant. The matter was then adjourned to 17 October 2011.

^[5] On 17 October 2011, Mr. Qoro appeared for the plaintiff on instructions from Rams Law. He highlighted that the second defendant was to have served an affidavit in reply and then sought a date to review the plaintiff’s position vis a vis the first defendant. The matter was then adjourned to 08 November 2011.

^[6] On 08 November 2011, Mr. Degei appeared on instructions from Rams Law and informed the court that Rams Law had filed an Affidavit in Reply which was to be served in due course. The case was then adjourned to 29 November 2011 for service of the plaintiff’s affidavit in reply.

^[7] On 29 November 2011, Mr. Hari Ram appeared for the plaintiff and sought a hearing date. The case was then adjourned to 23 January 2012 for hearing.

^[8] Section 3 states that the Act shall apply to all agricultural land in Fiji with three exceptions which are irrelevant in this case.
^[9] Sections 37 and in particular 38 of ALTA set out the prescribed form that a Notice to Re-Enter must follow. See discussion in Fiji Supreme Court decision of Singh v Speakman [2003] FJSC 7; CBV0002U.1998S (17 April 2003).

^[10] In fact, had Ms. Chand filed a summons to strike out on the same ground, she would most certainly have succeeded.

^[11] See Wadavellu Reddy v Gopal Krishna, [2009] FJHC 221; HBC114.2008L (9 October 2009); Azmat Ali v Mohammed Jalil & NLTB [1986] FCA; Civ App 111 of 1985; Soma Raju v Bhajan Lal [1976] 22 FLR 163;