Gounder v Gounder [2012] FJHC 866; HBC232.2010 (14 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC No. 232 of 2010

BETWEEN:

RANGASAMI GOUNDER of Dreketi, Saweni, Lautoka, Farmer.
PLAINTIFF

AND:

SUBARMANI GOUNDER of Dreketi, Saweni, Lautoka, Farmer.
1st DEFENDANT

AND:

THE DIRECTOR OF LANDS, Government Buildings, Victoria Parade, Suva.
2nd DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI Level 5-7, Suvavou House, Victoria Parade, Suva.
3rd DEFENDANT

Before: Master Anare Tuilevuka.
Appearances: Mr. Degei of Haroon Ali Shah Esquire, for the Plaintiff/Respondent.
:Mr. Lewaravu for the 2nd & 3rd Defendants/Applicants.
:Ms. Q. Vokanavanua for the 1st Defendant.

Date of Ruling: 14 February 2012.

RULING

INTRODUCTION

[1]. Before me is a Summons by the Office of the Attorney-General to strike out the plaintiff's claim against the 2nd and 3rd defendants. The application is made pursuant to Order 18 Rule 18(1) (a) and (d) of the High Court Rules 1988. The grounds alleged are that the claim discloses no reasonable cause of action and is an abuse of process. The application is supported by an affidavit sworn by Walmik, a senior surveyor with the Divisional Surveyor Western's Office in Lautoka. The plaintiff, Rangasmi Gounder opposes the application by an affidavit he swore on 11 February 2012.

STATEMENT OF CLAIM

[2]. From the statement of claim[1], I gather that Ragasami Goundar is the brother of the 1st defendant, Subarmani Goundar. They are equal beneficiaries in the estate of Muluamma - their late mother. Subarmani is the sole executor/trustee of this estate. Rangasami Goundar alleges that Subarmani breached his fiduciary duties as executor/trustee in the way he unfairly handled the distribution of the estate property[2]. Amongst the facts pleaded to support that allegation, is a claim that Subarmani included his own children in the distribution as if they were direct beneficiaries in the Muluamma estate. The property in question is Crown Lease No. 5225 (Lot 21 of Plan ND 5003 sheet 2 Nakorokoro and Kasotu (part of) together with the benefit of sugar cane contract No. 593, Saweni Sector at Vuda, Lautoka. This land has a total area of 15 acres and 0 roods and 11 perches.

ALLEGATIONS AGAINST THE DIRECTOR OF LANDS

[3]. Against the Director of Lands, Rangasami Goundar pleads[3] that it/he "has acted in breach of its duties as a Statutory Landlord". The particulars of breach are as follows:

• (i) agreeing to allocate parts of the estate land for the use and benefit of the 1st defendant and his children to the detriment and exclusion of the plaintiff.
  
• (ii) failing to act fairly for the benefit of all the beneficiaries of the estate.
  
• (iii) neglecting to act according to the provisions of the will.
  
• (iv) failing to issue a proper lease for the equal benefit of all the beneficiaries of the said estate.
  

[4]. Although no particular statute or section thereof is pleaded, in his submissions[4], Mr. Degei refers to sections 16 and 18 of the Crown Lands Act (Cap 132) and also sections 4, 9 (1) & (2), 10 and 38 of the Agricultural Landlord & Tennant Act (Cap 270).

[5]. I have perused these provisions this morning and find nothing in them relevant to support the cause of action that Rangasami Gounder alleges against the Director of Lands.

ANALYSIS

[6]. One of the issues that emerged at the hearing of the application is whether or not Crown Lease No. 5225 still vests in the estate. In the affidavit in support, Walmik[5] deposes that the original lease over the land in question had a term of ten years in Muluamma's name. This lease expired in 1983 but was granted a twenty year statutory extension under section 13 of the Agricultural Landlord & Tennant Act (Cap 270)[6]. That extension expired in 2003. There has been no further extension since.

[7]. Mr. Lewaravu submits that the property only vested in the estate up to 2003 during the currency of the twenty year extension. At the expiry of that twenty years extension, the lease reverted to the State. The Department of Lands thereupon had the clear discretion to grant a new lease to anyone who applied for it.

[8]. Hence, neither the plaintiff by virtue of his being a beneficiary in the Muluamma estate, nor the estate itself, has a right of first refusal on the land - whether under any statute or any other law. Nor does any such right accrue to them under any law simply by virtue of the fact that they are still in occupation of the said lease. It follows then that there is no statutory duty or other obligation on the part of the Director of Lands to consult the plaintiff first before leasing out the land afresh (see Mr. Justice Jiten Singh's decision in The State v Ministry of Lands & Mineral Resourses & A-G ex-parte Rafiqan Bi and Jantul Bi v Abdul Hakim - Judicial Review No. HBJ 01 of 2007.

[9]. In the above case, Singh J' held that no argument based on legitimate expectation for a further extension can be validly be made by the occupiers of an ALTA lease where the twenty year extension[7] had run its course and in the absence of any evidence that there was a policy in place to grant a further extension as such[8].

[10]. After considering all, I grant Order in Terms of the application and hereby strike out the plaintiff's statement of claim against the Director of Lands and the Attorney-General. Costs in the sum of $450-00 in favour of the Director of Lands.

[11]. I do not agree with the proposition by Mr. Degei that the fact that the Director of Lands has filed a statement of defence means that they are acknowledging that the plaintiff has an arguable case.

[12]. In my view, there is clearly no arguable case on the pleadings against the Director of Lands. Accordingly, I strike out the claim against the Director of Lands and the Attorney-General. Costs in the sum of $300-00 against the plaintiff in favour of the Director of Lands. The case against the first defendant is to take its normal course and is adjourned to Tuesday 21 February 2012 for mention.

Anare Tuilevuka
Master

At Lautoka.
14 February 2012.

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^[1] filed on 30 November 2010.
^[2] In particular, Rangasami Gounder pleads that Subarmani tried to allocate parcels of the land to his children and excluding the plaintiff, that Rangasami constructed a concrete structure on the plaintiff’s allotment and attempted to obtain residential lots on the farm without the plaintiff’s consent, that Rangasami obstructed the cultivation and harvesting of cane on the plaintiff’s allotment, withholding the plaintiff’s share of cane proceeds, not providing accounts for the estate, jeopardizing the estate by neglect of good husbandry.

^[3] As per paragraph 8 (i) to (iv) of the Statement of Claim.
^[4] Filed earlier today.
^[5] a Senior Surveyor at the Department of Lands in Lautoka.
^[6] Section 13 of the Agricultural Landlord & Tennant Act (Cap 270) states as follows:

Extension of contract of tenancy

13.-(1) Subject to the provisions of this Act relating to the termination of a contract of tenancy, a tenant holding under a contract of tenancy created before or extended pursuant to the provisions of this Act in force before the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976,* shall be entitled to be granted a single extension (or a further extension, as the case may be) of his contract of tenancy for a period of twenty years, unless-
* 1^st September 1977

(a) during the term of such contract the tenant has failed to cultivate the land in a manner consistent with the practice of good husbandry; or

(b) the contract of tenancy was created before the commencement of this Act and has at the commencement of the Agricultural Landlord and Tenant (Amendment) Act, 1976* an unexpired term of more than thirty years:

Provided that, notwithstanding the provisions of section 14, a premium equivalent to one year's rent shall be payable in full in advance on the first day of the first year and of the eleventh year of such extension.

(Substituted by 35 of 1976, s. 8.)

* 1^st September 1977

^[7] Under section 13 of the Agricultural Landlord & Tennant Act.
^[8] Singh J said as follows:

Absent a clear known policy [to grant a further extension] to the contrary, the Department had the discretion to grant the lease to any one of the persons who applied for it.