State v Director of Lands of Suva ex parte Daulat Nisha [2013] FJHC 6; HBJ7.2009 (16 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBJ 7 OF 2009

BETWEEN:

THE STATE

AND:

THE DIRECTOR OF LANDS OF SUVA and
THE ATTORNEY GENERAL OF FIJI
RESPONDENTS

EX PARTE: DAULAT NISHA
APPLICANT

Appearances: Mr. M. Raza for the Applicant.
Ms. Noleen Karan for the Respondents.
Date / Place of Judgment: Wednesday 16 January, 2013 at Suva.
Coram: The Hon. Justice Anjala Wati.

CATCHWORDS:

LEAVE FOR JUDICIAL REVIEW- SUFFICIENT INTEREST- ARGUABLE CASE-BREACH OF RULES OF NATURAL JUSTICE- BIAS-LEGITIMATE EXPECTATION.

LEGISLATION:

THE HIGH COURT RULES 1988 ("HCR")

RULING
(Leave for Judicial Review)

The Cause

1. The application is for leave to issue judicial review proceedings against the Director of Lands to impugn his decision of 23 December 2008 and 23 February 2009 when the Director decided to subdivide the applicant's Crown Lease No. 8739 into 2 lots and give an area of 2.41 hectares to the applicant and an area of 1.95 hectares to another person.
   
2. The substantive reliefs sought are:
   
   • An order for certiorari to quash and remove the decision of the respondent; and
     
   • An order declaring that the decision of the respondent was biased, made in breach of the principles of natural justice, contrary to her legitimate expectation and null and void.
     

Grounds in Support

3. The applicant by an affidavit deposed the background of her case and raised numerous grounds upon which she seeks the relief. She deposed that:
   

• Since 1974, her husband had been the lessee of the subject Crown Lease on a yearly term until 1983 when her husband was duly granted the Crown Lease No. 8739 being Lot 6 and 10.
  
  • After the death of her husband in the year 1993, she became the lessee of the said Crown Lease and continued to do farming of cash crops. This has been her only source of income.
    
  • She has a pair of bullocks and horse for farming and other uses, cows for milk and some goats for private use. She uses approximately 3 acres of the land for grazing. She uses labourers to assist her in farming and harvesting of the cash crop.
    
  • On 10 April 2007, she was requested to pay all the outstanding land rent and was told that her lease will be renewed. She thereafter paid the rents to the Director of Lands. The land rent for the whole lease was paid up to 31 December 2008.
    
  • The lease had expired in year 2003 and she was assured that it will be fully renewed if she cleared all the outstanding rents from the date the lease had expired. On 12 April 2007, she was again requested to apply for the renewal of the lease in writing.
    
  • She verily believes that initially her lease for the whole land was approved and after an i-taukei man approached the Minister of Lands on the advice of one Mr. Lai, the surveyor, the said approval was cancelled. The file notes are in File No. LD 4/14/1421 and it will be there unless removed by the Director or its agents or servants.
    
  • On 23 December 2008, she received a letter from the Director of Lands which stated that they are going to subdivide her lease into two where he will give 2.41 ha to her and 1.95 ha to another deserving person.
    
  • After receiving this letter she saw an i- taukei man had started to clean her land. He is from the nearby village and related to surveyor Lai who surveyed the land.
    
  • On 6 January 2009 her solicitor wrote a letter to the Director of Lands challenging his decision to subdivide her lease without giving her the right to be heard.
    
  • On 7 January 2009, on the advice of the agents or servants of the Director of Lands, she paid the rent for the whole lease for a year.
    
  • She had legitimate expectation that her lease will be renewed after the land rental was taken from her from the date the lease expired to the end of the year.
    
  • On 26 January 2009 her solicitor again wrote a letter to the Director of Lands requesting for his response to his letter of 6 January 2009.
    
  • On 10 March 2009, her solicitor received a letter from the Director of Lands confirming the subdivision of the lease on the basis that it will be given to the evicted farmers contrary to the fact that it had been given to an i-taukei man from a nearby village and a friend and relative of Lai.
    

4. She urged that the respondent failed to:-
   
   • Give or provide notice of all adverse documents or finding to the applicant before pronouncing the decision.
     
   • Consider that the applicant relies solely on the income from the cash crop from the said farm.
     
   • Consider that the applicant relies on1.95 ha for grazing her cattle that is being used for farming and growing cash crops.
     
   • Consider that initially it had approved the full renewal of the applicant's lease and only decided to subdivide the lease after one of the alleged deserving person approached the Minister for Land directly.
     
   • Provide the applicant a right to be heard.
     
   • To act in good faith, reasonably and consistently.
     

The Opposition

5. The Director of Lands deposed an affidavit to the effect that:
   
   • The lease was under the claimant's husband's name until it expired on 30 June 2003. The applicant has not provided the Court with any document to show that she is the administratix of her late husband's estate. She therefore does not have sufficient authority to bring the proceedings.
     
   • The payment of all outstanding land leases should have been up to 30 June 2003 as part of the term of the lease. The applicant had at various times defaulted in paying the rental arrears.
     
   • An application for renewal of leases is in accordance with the formalities but the final decision whether or not the lease is renewed rests with the Director of Lands.
     
   • The approval of the lease for the whole land was considered subject to the field inspection report done by the surveyors.
     
   • Several applications from interested persons are with the lands department for the renewal of the lease. The decision to subdivide the lease was based on the assessment of the subject land by the surveyors and put forth in the field inspection report.
     
   • It was the duty of the lessee to ensure that all rents are paid on time as required by the terms and conditions of the lease. In this case the lessee kept defaulting with the payments and only cleared the rent after the lease expired in 2003.
     
   • The main purpose of subdividing the lease was based on the surveyors report that certain portion of the land is unused and thus given to people who are genuinely in need of land particularly evicted farmers from the Northern and Western Division.
     
   • The applicant's lease was renewed in exercise of the powers under Crown Lands Act (Cap. 132) and the applicant was given reasons and conditions of the renewal.
     
6. In synopsis, the respondents raised that the application for leave cannot succeed because the applicant does not have sufficient standing to bring the application and that there is no arguable case for leave to be granted to the applicant.
   

The Issues

7. Based on the opposition, I need to decide:
   
   • (a) Whether the applicant has a sufficient interest in bringing the proceedings; and
     
   • (b) Is there an arguable case.
     

The Law and Analysis

8. Leave to bring judicial review proceedings will not be granted if the applicant does not have a sufficient interest in the matter.
   
9. Since the demise of her husband in 1993, the applicant has been the lessee of the same subject property. Although the lease expired in 2003, the applicant continued to occupy the whole land leased to her husband until 2008 when the decision to subdivide and transfer the property to another was made. The applicant indisputably has a proprietary interest which has been affected by the subdivision. As the occupant of the land or the previous lessee, the applicant undoubtedly obtains a locus to apply for judicial review.
   
10. The next issue is whether on the affidavits I find an arguable case. I answer that in the affirmative.
    
11. The Director of Lands stated that the basic report on which he based his decision was a field report. The issue at the substantive level is to see the legislated procedure required to subdivide an interest in a land. The question is whether that procedure encompasses rights of natural justice and whether that was followed.
    
12. It is apparent from the affidavit evidence that no opportunity was given to the applicant to see and comment on the report and present her case to the Director.
    
13. Bias is another arguable issue. The allegation at this stage is that the field report was biased as it favoured a relative or a friend. The basic rule in a decision making process is that the decision maker must not be interested in the matter to be decided nor there be an appearance that the decision maker brings to the matter a prejudiced mind.
    
14. The question of legitimate expectation also needs to be explored at the substantive stage. The applicant says that she was promised that she would be given a renewal of the whole lease upon payment of the rent. She did as she was told to and she had legitimate expectation to have her lease renewed.
    
15. On the affidavit evidence, I find that the issues of breach of natural justice, bias and legitimate expectation needs to be tried as they are pertinent to any decision making process.
    

Final Orders

16. I therefore grant the applicant leave to issue judicial review proceedings. The motion for judicial review must be entered within 14 days.
    
17. There shall be costs in the cause.
    

Anjala Wati
Judge

16.01.2013
___________________________
To:

1. Mehboob Raza & Associates, for Applicant.
2. AG's Chambers for Respondent.
3. File: Suva HBJ 7 of 2009.