Hague v Hussain [2014] FJHC 21; HBC166.2013 (22 January 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVL JURISDICTION

Civil Action No. HBC 166 of 2013

BETWEEN:

SHEIK SHAFIYUL HAGUE of Meigunyan, Nadi in the Republic of Fiji.
Plaintiff

AND:

ABID HUSSIAN of Meigunyah, Nadi in the Republic of Fiji, Businessman.
Defendant

Appearances:
Mr F Koya for Messrs Koyas for the Plaintiff
Mrs Naidu for Messrs Rams Law for the Defendant
Date of Hearing: 22th January 2014
Date of Order : 22th January 2014

ORDER

1. This is an application for recovery of possession of the land contained in the Crown Lease No. 9749 being Lot 2 on plan SO 0641A situated at Meigunyan, back road, Nadi being an agricultural land. This application appears to have been filed under O.113 of the High Court Rules 1988.
   
2. Mrs Naidu who appeared for the limited purpose of making an application for adjournment. She later withdrew her appearance when the Court refused her application to adjourn the hearing as she failed to adduce sufficient ground for an adjournment.
   
3. Mr Koya submitted that the Defendant is occupying the land illegally and/or without leave and licence of the plaintiff who is legally entitled to the state land as registered lessee. He further submitted that the Plaintiff had an agreement with the Defendant to transfer the land to him and that agreement has became null and void in the absence of consent of the Director of Lands. He also submitted that the Plaintiff has obtained the necessary consent to file this action to recover possession of the land from the Defendant.
   
4. The Defendant did not participate in the hearing of the Plaintiff's application, albeit he filed an affidavit in response. The Defendant in his affidavit in response stated that he is occupying the land with the consent of the plaintiff but no documents were provided by the Defendant to the Court to establish that assertion.
   
5. Pursuant to O. 113 of the High Court Rules 1988, proceedings may be brought by originating summons where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his.
   
6. The Plaintiff claims possession of the state land from the Defendant. The Defendant deposes that he has entered into an agreement for the sale of the property for the consideration sum of $50,000.00, paid the sum of $14,000.00 to a Mr Rashid, not the Plaintiff, and that the Plaintiff has executed the transfer documents and applied for the consent of the Director of Lands which is still pending.
   
7. Section 13.-(1) of the Crown Lands Act, Cap 132 prohibits the lessee from alienating or dealing with the land comprised in the lease or any part thereof without the written consent of the Director of Lands first had and obtained.
   
8. Section 13.-(1) of the Crown Lands Act provides:-
   

"13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands Act"

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease of any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever, nor to mortgage, charge or pledge the same, without the written consent of the Director of Lands first had and obtained, nor, except at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void (Emphasis added)".

9. In this case the Plaintiff seeking possession as the lessee of the state land (lessee in protected lease). According to the Defendant, he had entered into an agreement for the sale of the property and the Plaintiff executed the transfer documents, but application for consent is still pending.
   
10. In Prasad v Chand (2001) 1FLR 161, Justice Gates J (as then he was) states:-
    

"Section 13 of the State Land Act prohibits any dealing in the land which is comprised in a State Lease, without the Director of Land's consent. Whatever the nature of the permission granted to the defendant to occupy the relevant State Land, it was clearly unlawful because it lacked the Director's consent. The Defendant would have committed the offence of criminal trespass on State Land under section 32 and 40 of the Act. Unlawful occupation of Native land is similarly an offence under section 27 of the Native Lands Trust Act Cap.134 and other breaches of that Act are caught by section 26. Section 12 of NLTA is couched in similar language to that of section 13 of the State Lands Act.

"If I were to accept all of the Defendant's evidence unchallenged by the Plaintiff, the Defendant fails to satisfy me that he has a right to possession. Apart from the paucity of evidence on the agreement with the Plaintiffs' deceased father, the agreement itself falls foul of the statutory prohibition on the dealing with the State leases. The Defendant has gone into possession and built a house without the consent of the Director of the Lands. The Director had no prior opportunity to evaluate the Defendant as a suitable tenant of the State, the very purpose for the consent provision. Any gift or promise to subdivide and to grant part of the State Lease to the Defendant would be null and void in these circumstances. It would also be in breach of section 4(b) of the Subdivision of Land Act Cap. 140 and therefore an offence under section 15 of that Act."

11. The Defendant says that he is not in illegal occupation of the property by reason of the agreement for the sale of the property for the consideration of $50,000.00. The land in question is a state land and the Plaintiff is holding a protected lease as contemplated under section 13 of the Crown Land Act. Obviously, the alleged agreement concerning the land comprised in the protected lease has been reached without prior consent of the Director of Lands as required by section 13 of the Crown Lands Act. In terms of section 13 and in the light of the decision of Prasard v Chand (supra) the agreement the Defendant is referring to becomes illegal and null and void. As a result he cannot claim right to possession based on the alleged illegal agreement. Therefore the Defendant has failed to establish that he is occupying the land legally and/or with the consent of the Plaintiff or that of any predecessor in title of his.
    
12. For the above reasons, I make orders in terms of the originating summons filed on 10 September 2013. I accordingly make order for the vacant possession of the land contained in Crown Lease No.9749 being Lot 2 on Plan SO 0641A situated at Meigunya, Back road, Nadi. The Plaintiff is entitled to summarily assessed cost of $750.00.
    

M H Mohamed Ajmeer
Acting Master

22/01/2014

At Lautoka.