Naidu v Native Land Trust Board [2013] FJHC 295; HBC52.2008 (18 June 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 52 of 2008

BETWEEN:

SANMOGAM NAIDU of Namara, Labasa.
PLAINTIFF

AND:

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

COUNSELS : Mr Amrith Sen for the Plaintiff
Ms Raitamata, Legal Officer, NLTB for the Defendant

DATE OF JUDGMENT: 18th June, 2013

JUDGMENT

1. Writ of summons was filed on 9th December 2008 and in the Statement of Claim the following reliefs were claimed:
   
   • (a) A sum of $40,000 as damages;
   • (b) General damages for breach of contract;
   • (c) Exemplary/Punitive damages;
   • (d) Interest.
     
2. In the Statement of Claim the Plaintiff pleaded:
   

2.1 The Plaintiff was the Lessor (correctly be stated as the Lessee) Crown Lease No. 7544 known as Somunaira in the Island of Vanua Levu and in the District of Labasa containing an area of 1 rood and 17 perches on ref. 4/9/3585 (hereinafter referred to as lease land) and issued by Lands and Survey Department (the Lessor).

2.2 In 1994, the Plaintiff made an application to the Directorate of Town and Country Planning for sub-division of the land which was approved on 31st March 1994 subject to conditions.

2.3 On 9th of May 1995, the Plaintiff made an application to the Lands and Survey Department for surrender of the said Crown Lease and for issuance of a new approval Notice in respect of the land for the purpose of sub-division.

2.4 On 1st September 1995, the Lands and Survey Department approved the surrender of lease and new approval Notice was issued subject to payment of $5816 being the lease hold Market Value of the subject land.

2.5 On 24th June 1998, the Plaintiff through a registered surveyor A.K. Karan Consultants Limited made an application for sub-division to Lands and Survey Department which was approved on 23rd February 1999. Thereafter, consent was obtained from the Town and County Planning and the registration process was attended with the respective authorities.

2.6 In the year 1999, the Plaintiff paid all monies due and outstanding being the costs and the lease hold market value to the Lands and Survey Department as required by the Department pursuant to the letter of 23rd February 1999 to enable process of respective leases.
2.7 In the year 2004, the administration of the said crown land vested into the Defendant and rights and obligations of the Plaintiff and the Defendant pertaining to the subject land did not change by change of administration.

2.8 The Plaintiff stated in 2004, the Defendant was aware of the previous dealings between the Plaintiff and the Lands and Survey Department, the Defendant without any authority issued offer letters in respect of the subdivision which was undertaken and completed for which all monies had been satisfied to the predecessor of the Defendant.

2.9 Having full knowledge of thorough documentary evidenced and file notes, the Defendant made demands through its offer of 11th April 2004.

2.10 The Plaintiff stated he had paid various sums of money to the Defendant under protest and requested it to prepare lease in respect of the parcels of land that was subdivided and for which plans have been registered. It was also stated the particulars of the monies paid would be provided at discovery.

2.11 The Plaintiff further pleaded in breach of contractual and statutory obligation to the Plaintiff, the Defendant refused to prepare a registered lease in respect of sub-divided lot namely Lot 4 containing an area of 1978m being NLTB Ref No. 2/9/17291 being part of the subject lease and instead issued a lease to a third person unknown to the Plaintiff and the lease hold value of the said lot was valued at $40,000.00 and stated the Plaintiff is entitled to same.

2.12 By reasons of breach of the Agreement, in breach of its statutory obligations and duty of the Plaintiff, the Plaintiff has been deprived of his land and/or value incurring him loss and damages. As such, the Plaintiff claimed damages from the Defendant as described in the paragraph 1 of this Judgment.

3. Prior to filing the Statement of Defence on 13th August 2010, two occasions default judgments was entered and on summons filed by the Defendant the default judgments were set aside; and finally the Statement of Defence was filed on 13th August 2010.
   
4. By the Statement of Defence, the Defendant pleaded:
   

4.1 Denied paragraphs 1 to 9.

4.2 Admitted the paragraph 10 that in the year 2004, the Administration of the subject crown land vested into Native Land Trust Board.

4.3 Paragraph 11 is as admitted that the rights and obligations of the Plaintiff and the Defendant did not change by reasons of change of the administration and further stated the Defendant's conditions for lease were not subject to those of the original lessor.

4.4 Denied the paragraph 12 and stated the subject land being reverted to native land while the sub-division was still to be formalized and all the subsequent dealings required the approval of the Defendant.

4.5 Paragraph 13 was denied and stated that the Plaintiff never appraised the Defendant of the unilateral dealings he made with the purchasers of the sub-division.

4.6 Paragraph 14 of the claim was denied and stated Plaintiff's unilateral arrangements concerning the respective lots did not diminish the Defendant's responsibility towards those individuals who had fully paid for the respective lots.

4.7 Paragraph 15 of the claim was denied. Plaintiff stated that the Defendant refused to prepare a registered lease in respect of Lot 4 and in breach of contractual and statutory obligation, the Defendant issued a lease to a third party and the Defendant stated the Defendant had not paid the sum required to secure the lease.

4.8 No comment was made by the Defendant about paragraph 16 of the claim.

4.9 Paragraph 17 of the claim is denied further pleaded there being no agreement the Defendant met its statutory obligations by allocating leases to those who met the requirements and the losses claimed by the Plaintiff was due to his own unilateral mistakes.

5. Reply to Defence was filed by the Plaintiff on 19th April 2011 and pleaded.
   

5.1 Referring to para 1 of the Statement of Defence with the records the Defendant should have been aware of the transactions in the Statement of Claim.

5.2 Referring to para 3 of the Defence, it was stated conditions stipulated in the lease document cannot be changed by either party through revision or otherwise.

5.3 Referring to para 4, it was stated all the dealing were approved by the former Lessor and the Defendant is bound by the same.

5.4 Referring to para 5, the Plaintiff repeated the Defendant was fully appraised and was aware of its obligations for new leases to the Plaintiff

6. Summons was filed on 2nd February 2012 and the Plaintiff sought leave from the court for Orders to answer the interrogatories and lease was granted.
   
7. Affidavit of Joreti Dakuwaqa, Manager of the Defendant in Labasa on behalf of the Defendant was filed on 25/6/2012, answering the interrogatories.
   
8. Copy of Pleadings together with the Pre-trial Conference minute was filed on 3/12/2012 and the Plaintiff and the Defendant had also filed their bundles of documents.
   
9. The agreed facts were:
   

9.1 Native Ref. No. 2/9/17291 containing an area of 1078m³ was created after sub-division.

9.2 CL No. 7544 was owned by the Plaintiff prior to its surrender and sub-division.

9.3 CL No. 7544 was administered by Lands and Survey Department until administration of it was taken over by NLTB.

9.4 Lands and Survey Department approved the sub-division of CL No. 7544 pursuant to a letter dated 23rd February 1999.

10. On perusal of the agreed facts and evidence before me, I find that the Plaintiff had obtained necessary approvals from the Director of Town and Country Planning and the subdivision was approved in year 2000.
    
11. The Plaintiff in this case stated in his evidence that:
    

11.1 The Crown Agricultural Lease No. CT 7544 in Plan No. M2818 approval was granted by the Director of Town and Country Planning on 31st March 1994 (Item 3 of the Plaintiff's documents) with conditions. The proposed subdivision was of Lot 1 M2318 into Lots 1-3 for residential and subsistence farming and Lots 4-8 for residential as per said conditional approval by the Director of Town and Country Planning.

11.2 It was stated by the witness that $5818 was paid by the Plaintiff in response to the letter dated 01/09/1998 by the Acting Surveyor General on Lease hold market value $5700 and $116 Stamp duty (item 4).

11.3 The Plaintiff's surveyor A K Karan Consultants wrote a letter dated 24th June 1998 and sought approval for subdivision of Lot 2 in SO 3758 in LD 4/9/3585 and Divisional Surveyor Northern approved the subdivision by his letter dated 23/2/99 and the conditions stated in the said letter were:

1. The Lessee will have to employ a private surveyor to carry out the necessary application to the Director of Town and Country Planning to obtain their approvals and subsequently carry out the surveyor work.
   
2. The Lessee will have to pay LMV Premium for each lot upon approval by the Director of Town and Country Planning.
   
3. Upon registration of Survey Plans and Lessee will either transfer the Lots to his nominees or obtain leases directly on his name and transfer at later stages.
   
4. The Lessee will bear all the costs.
   
5. The Lessee to accept the above conditions.
   

It is evident by this letter which was item 6 of the Plaintiff's document as per paragraph 2 of the above conditions the Plaintiff had to pay LMV premium for each lot. That is for Lots 1, 2, 3, 4, 5, 6, 7 and 8 of the subdivision of Lot 1 in M2818. There was no dispute with regard to Lots 1, 2, 3, 5, 6, 7 and 8. Dispute arose only on Lot 4. The Plaintiff in his evidence admitted he had paid $5818 on 01/09/1995. He was attempting to establish the said $5818 was the only payment to be made, which I don't agree. Since the payment of $5818 was paid on 21/9/95 not connected to the payment mentioned in the letter dated 23/4/1999. Obviously if the said payment was made for the subdivided lots it would have been acknowledged by the Land and Surveyor Department in this letter.

11.4 It was admitted by the parties, the Defendant was vested with the administration of the subject land in 2004. Administration of the land by the Defendant undoubtedly includes to meet the obligations by the predecessor and the fulfillment of obligations by the Plaintiff too.

11.5 Under cross-examination by the Defendant's counsel the Plaintiff admitted that the payment of $5818.00 was made before the Administration of the Land and Surveyors Department was vested with the Defendant.

11.6 The Plaintiff stated letter dated 01/09/1995 (shown item 4 of the Plaintiff's documents):

.......................I was in contact with Votakai Prasad & Associates. The said letter says to pay $5818. I paid this money before the subdivision to the Crown Land. This is for approval for 5 Lots. They asked me to pay. This is before the subdivision of the property. (shown Item No.7 letter dated 11th May 2004). This is offer for the lease on Lot 4. This lot is part of 5 lots. Other 4 lots lease was given. I am registered lessee of the other 4 lots. According to this letter, 4 weeks time was given to pay, have paid $3149.63 to NLTB. This money was given to my lawyers (referred to Item 8 – last 2 pages of the Plaintiff's documents). Payment made $50.00 on 1/3/2005 and on 18/7/2005 $20.00. Total paid was $70.00 not $3149.63, I paid only $70.00 to NLTB. I paid only to Crown Lands, I didn't pay $3149.63. This is why offer was withdrawn.................I confirm money was paid to Crown Lands.

Q. You were informed if you don't act according to the terms and your application is not proceeded?

A. Yes..................

The evidence of the Plaintiff clearly establishes the Plaintiff had not paid $3149.63 for the Lot 4. The said letter by the Defendant dated 11th May 2004 clearly states: "If the sum is not paid within 4 weeks from the date of the letter other applicants for the land may be considered".

12. The Defendan'ts witness Ms Varanisese Vaevale, Estate Officer gave evidence on behalf of the Defendant. She stated:
    

12.1 The Agricultural lease of the Plaintiff was converted to a Development lease. She tendered the Defendants bundle of documents.

12.2 Referred to Item No. 1 of the Defendant's document (which was referred to as Item 7 of the Plaintiff's bundle of documents) letter dated 11th May 2004 and stated the Plaintiff was requested to make the payment indicated and if the Plaintiff does not abide by the time frame; the land in question may be considered for other applicants. There is no indication in the said receipt payment of $100 was for Lot 4. The receipt also stamped to the effect. "This amount is subject to final acceptance and certification by the Board and does not create nor recognize any tenancy". This document cannot be accepted for creation of a tenancy.

12.3 Item 2 was the receipt for $100 dated 8th November 2004 it was evident in terms of the letter of offer dated 11th May 2004, the Plaintiff would have paid the sum indicated before 8th of June 2004.

12.4 On behalf of the Plaintiff letter dated 21/12/2004 was sent by Dame Consultancy and requested extension of time for payment. 2nd para of the said letter stated that the Plaintiff was aware of the monies are not paid; land will be available for others to purchase.

12.5 On 7th of June 2005, the Defendant informed the Plaintiff (Item No. 5 of the Defendant's bundle of documents) referring to letter dated 11th May 2004 assumed the Plaintiff had withdrawn his application further stated that the Plaintiff had paid only $70.00 against the payment of $3169.63 (this was admitted by the Plaintiff during his cross examination).

12.6 The offer to Mr Mohammed Fahid was made on 2/7/2005 and by letter dated 2nd August 2005 (Item 7 and Item 8 of the Defendant's bundle of documents) witness stated time was not extended up to 31/7/2005, for the Plaintiff to pay.

12.7 Lease was issued to Mohammed Fahid on 28th March 2006 (Item 11 of the Defendant's bundle of documents) registered on 13th April 2006.

12.8 The witness further stated the Plaintiff had surrendered the lease to Lands and Surveyors Department and paid the cost for subdivision. If the said Department had offered for each lot, there would have been an offer. The sum requested by the Defendant is to give the Title to the Plaintiff.

12.9 The Plaintiff's counsel cross-examined the witness and tried to establish that there was no payment due to the Defendant. However, during the Re-examination this position was clarified by the witness and stated the payment of $5818.00 to the Lands Department was the payment was for subdivision of Lot 2, Agricultural Lease to a Development Lease. The letter dated 23/2/1999 is not an offer letter. Further stated Item No. 4 of the Plaintiff's bundle of documents (page14), letter dated 01/09/1995 was for CL 7544. It's not for the subdivided Lots.

Conclusions

13. The Plaintiff's counsel in his cross-examination of the Defendant's witness attempted to establish his claim which he failed in the evidence of the Plaintiff himself. However, I am satisfied during the re-examination by the counsel for the Defendant clarified the answers given under cross-examination. Plaintiff had to establish and prove his claim first. In this case Plaintiff failed. The Plaintiff attempted to prove his claim from the answers given under cross-examination by the Defendant's witness. As I stated, Plaintiff failed there too.
    
    • (a) The Plaintiff's case was that Lands and Surveyors Department's obligations had to be followed by the Defendant after the vesting of the Administration. In my view, the Defendant followed the obligations. By letter dated 01/09/1995, the Plaintiff was requested to pay $5816.00 Lease hold market value and stamp duty pertaining to Lot 2 which was the original Agricultural Lease, Ref. LD4/9/3585 by the Director of Lands.
      
    • (b) More importantly, the said payment of $5818.00 was paid on 21/9/1995. In such circumstances, why the letter dated 23/2/1999 (when the approval was granted for the subdivision) did not state the said amount is accepted as a final payment. The paragraph 2 of the said letter stated:
      

"2. The Lessee will have to pay LMV premium for each lot upon approval by the DTCP".

This is corroborated by the evidence of the Plaintiff himself and he stated under cross-examination and admitted. The correspondence too clearly shows the payment of $5816.00 was made before the subdivision. He further admitted that the Plaintiff didn't pay the money and his allocation was cancelled.

In the circumstances, it is well established in this case the Plaintiff had to pay for each lot once the subdivision was completed and in particular the payment of $3196.63 was not paid for Lot No. 4.

14. The Plaintiff had surrendered his Lease on CT 5788 once the application was submitted for the approval. So there was no lease up to the time of allocation of the new lease on Lot 4. As such I conclude the Plaintiff's submission that the Plaintiff payment on 1st March 2005 was not a rental payment and disagree with the Plaintiff and conclude that there was no acknowledgement of tenancy since the lease was surrendered and no lease was created on Lot 4. Therefore no rental payment could be made on non existing lease.
    
15. The Plaintiff attempted to prove his case on the answers given by the Defendants witness under cross-examination. However, all matters were properly explained at the re-examination and I conclude that the Defendant had made an offer of Lease on Lot 4 on fulfillment of the obligation of Land and Surveyors Department and as such there is no issue to consider that the Defendant is estopped from denying the lease to the Plaintiff. The cases quoted by the Plaintiff are not relevant to this matter, since the issues addressed by those cases cannot be applied in the circumstances of this case. Plaintiff submitted that the Defendant is stopped from denying the Plaintiff's tenancy for lease and quoted Bruton v. London and Quadrant Housing Trust (2000) 1AC [1999] UKHL 26; (1999) 3 All ER 481. However, having concluded the lease was surrendered the principles of equitable estoppal cannot be applied in this case. There are no breaches by the Defendant with regard to the contract; it's the Plaintiff who failed to adhere to the terms. The submissions in this regard are relevant if there were actual breaches of contract by the Defendant. Having failed to establish the breaches Plaintiff's submission fails.
    
16. The offer was made to the Plaintiff on 11th May 2004 and the Plaintiff requested through his consultant on 11/12/2004 for extension of the time for final payments. The Plaintiff admitted that he had due payments to be made. Out of the alleged $170 rental payment, $100 was paid before requesting time for extension. I conclude, that Plaintiff had failed to adhere to the terms of payment offered by the Defendant in their letter dated 11th May 2004 and the Defendant had not acted Malafide by allocating the lease to a third party. The Defendant allocated Lot 4 to a 3rd party for the reason Plaintiff defaulted his obligations towards the Defendant. The Plaintiff stated he made the payment of $3196.63 to his lawyer to be paid to the Defendant. There was no documentary proof that the money was paid to the Defendant. As such there is no right for the Plaintiff to maintain a case for damages against the Defendant.
    
17. Having made conclusions as stated in the preceding paragraphs, I hold the Plaintiff had not proven a claim against the Defendant for damages and I make the following Orders:
    
    • (a) The Plaintiff's claim is dismissed;
      
    • (b) The Plaintiff is ordered to pay summarily assessed costs of $1500.00 to the Defendant.
      

Delivered at Labasa on this 18th day of June, 2013.

...................................
[C. Kotigalage]
JUDGE