Sharma v Mishra [2015] FJHC 363; HBC12.2012 (15 May 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC12 of 2012

BETWEEN:

SATYA NAND SHARMA
of Maqere, Tavua, Fiji
PLAINTIFF

AND:

SANJEETA MISHRA
of Maqere, Tavua, Fiji, Technician
FIRST DEFENDANT

AND:

TOTA RAM
formerly of Maqere, Tavua, Fiji now of Mangere, Auckland, New Zealand, Retired.
SECOND DEFENDANT

RULING

INTRODUCTION

1. Before me is a summons filed by the first defendant, Sanjeeta Mishra, seeking the following orders:
   

1. that the injunctive order made by this Honourable Court on 27/01/2012 be forthwith dissolved, dismissed and struck out.

2. that the Plaintiff's entire claim against the 1st Defendant be struck out and dismissed on the grounds that:-

(i) it does not disclose a valid cause of action.

(ii) is scandalous, frivolous and vexatious,

(iii) is embarrassing,

(iv) is a clear abuse of the process of this Honourable Court,

(v) is statue barred.

3. that there be an Order of this Honourable Court ordering, that the Plaintiff do give immediate vacant possession of all the land contained in the Certificate of Title No. 56/5521 known as Nasivi (part of) having an area of 20 acres, being lot 30. DP 99.

4. any further or other orders this Honourable Court may deem just.

5. that the cost of the application paid by the Plaintiff on indemnity basis.

2. The application is supported by an affidavit sworn by Mishra[1]. The issue in this case is whether or not the plaintiff has any interest whatsoever in the land in question ("property").

3. The plaintiff claims an interest arising from a promise to him by the predecessor in title of the property. The predecessor in title to the property is Tota Ram, the second plaintiff. Tota Ram died in 2012, a few months after the filing of this claim. The current proprietor of the property is Sanjeeta Mishra, the first defendant.
   
4. The plaintiff alleges that he and Tota Ram had entered into an arrangement sometime in early 2004 when Ram was still registered proprietor of the property. At around that time, the lease of a certain other property over which the plaintiff had been the lessee, was expiring–and the plaintiff was looking at his options. Tota Ram entered the picture and asked the plaintiff to move onto Ram's property and cultivate the land. The plaintiff did so. And he received 50% of cane proceeds as part of the arrangement.
   
5. That much is common ground between the parties.
   
6. But as to what exactly was the legal nature of their relationship, the parties differ. According to the plaintiff, the arrangement he had with Tota Ram was a share farming arrangement. According to the first defendant, Sanjeeta Mishra, the arrangement that the plaintiff had with her late father was an employment contract.
   
7. While one may question Sanjeeta Mishra's competence to comment on an arrangement she was not privy to, she would say that she was advised so by the late Tota Ram who was her father and predecessor in title. It is hard not to believe that Tota Ram would have said something of the nature to Sanjeeta Mishra, given their close blood relationship, and assuming Ram really did transfer the property for valueto Mishra. Also, Mishra annexes to her affidavit a contract purportedly signed by the late Ram and the plaintiff which appears to record that theirs was a contract of employment.
   
8. The question that remains at the end of the day iswhether the agreement in question was a share farming arrangement or whether it was an employment contract. Once that issue is determined, the next question is whether or not that arrangement (whatever it was), binds Mishra, who is now the registered proprietor, but who was not privy that arrangement.
   

TRIABLE ISSUE

9. The exact nature of the arrangement between the plaintiff and Tota Ram, in my view, cannot be determined summarily.
   
10. In Kulamma v. Manadan (1968) 2 WLR 1074, the Privy Council confirmed that a share farming agreement does not necessarily confer on a share farmer an interest in land. Whether that means that it may confer an interest in land in some other situations – appears to be implied in that statement.
    
11. In Dharam Lingam Reddy v Pon Samy & Ors FCA No. ABU 042 of 1981 the Applicant applied to the Tribunal on 16th February 1981 and the section 169 proceedings were issued on 20th March 1981. The Fiji Court of Appeal gave this fact considerable weight when declining to finally determine the matter pending the forthcoming decisions of the Tribunal. That case also concerned an agreement where the cultivator was to serve as labourer and manage and look after the farm and the remuneration was half the cane proceeds.
    
12. Certainly, what appears from the leading authorities on the point is that, the mere fact that an agreement says that it is an employment contract, does not mean it is to be construed as such – for it may well be a share-farming agreement depending on the facts of each case.
    
13. At this point, I will note that any bona fide third party who purchased the property for value from Lal and who did not have notice of the plaintiff's interest, will enjoy his title free of any encumbrance of the plaintiff's interest.
    
14. Prima facie, Mishra falls into such a category. But I think in the circumstances of this particular case, whether or not she is a bona fide purchaser for value must remain a triable issue.
    
15. In this case, the plaintiff must establish that he has a valid interest. Once that is established, the question must then be answered whether whatever interest he has is an interest in the land or whether it is a contractual right only. And once that is determined, he must then establish that the interest is enforceable against both the first defendant and the second defendant.
    
16. Indeed, it will be hard for the plaintiff to prove his claim against the first defendant, given that the first defendant was not privy to the plaintiff's and the defendant's arrangement, and even so, if the first defendant can establish that she was a bona fide purchaser for value without notice. However, having said that, there are many legal and factual issues intertwining in this case andI still think that it would be rather presumptive if I were to strike out the plaintiff's claim summarily at this time. Accordingly, I will dismiss the application and will adjourn the case to Friday 22 May 2015 at 10.30 a.m. for directions.
    
17. No order as to costs.
    

Anare Tuilevuka
JUDGE
15 May 2015.

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^[1] The summons is filed pursuant to Order 18 Rule 18, Order 32 Rule, Order 113 of the High Court Rules 1988, and under the inherent jurisdiction of the Court. The application is supported by an affidavit of one Sangeeta Mishra sworn on 17 February 2012.

1. Mishra deposes her late father, Tota Ram, the second defendant, died on 10 February 2012. Tota Ram was the predecessor in title to the land in question. Ram acquired the property in 1957. He transferred the property to Mishra on 09 February 2009.
2. Mishra deposes that she paid NZ$40,000-00 (fourty thousand dollars) for the property and in that regard, was a bona fide purchaser for value of the said property. She paid that money through remittances from New Zealand to her father through his accountant, Jay Lal & Company.
3. Mishra deposes that, immediately upon becoming the registered proprietor, she told the plaintiff that he was staying on the subject land unlawfully and illegally as he was not a tenant. However, her father then told her that the plaintiff was employed by him pursuant to an employment contract.

(h) That I was informed by my father that the Plaintiff was employed by him as an employee pursuant to employment contract for the period of 10^th March, 2004 to 9/03/2006.

(i) That under the employment contract the Plaintiff was to work on the farm and for which work he was paid 50% of the net cane proceeds.

(j) That the Plaintiff was given the farm house to occupy between periods of 10/03/2004 to 09/03/2006 and thereafter, he was to vacate the house as his contract was never extended or renewed. The Plaintiff seized to be employed by my late father from 10/03/2006 and therefore his continued occupation of subject land was illegal unlawful and without consent.

4. Mishra refutes the plaintiff’s allegation that he (plaintiff) had been in occupation of the land for 8 years and further argues that the plaintiff had committed a material non-disclosure by withholding information about the employment contract.

(k) That in view of the foregoing, I deny the contents of part of paragraph (3) regarding the Plaintiff’s occupation for 8 years, the later part of paragraphs (5), (6), (7), (9), (10) and (11) of the Affidavit of the Plaintiff filed on 27/01/2012.

(l) That furthermore, I have been informed by my solicitors and verily believe that at the time of obtaining the injunctive order, the plaintiff deliberately made a material non-disclosure of very important facts relating to the said employment contract which he signed with my father to work on the farm as a labourer for the period of 10/03/2004 to 09/03/2006. The Plaintiff has lied on oath by stating that he was working on the said land for 8 years when in fact, he had signed and agreed that he would only work from 10/03/2004 – 09/03/2006. His employment contract expired on 09//03/2006 and thereafter, he did not work on the farm as a labourer/employee.

5. According to Mishra, the improvements made by the plaintiff on the farm home, he did at his own free will and was not consented to by her father². She deposes that, upon acquiring the land, she had made it plainly clear to the plaintiff that his continuing occupation of the land was illegal and unlawful and that she had never given him any license to stay on the land.
6. I gather from Mishra’s affidavit that the plaintiff had applied also to the Agricultural Tribunal.

(ii) That my Notice to the Plaintiff has been confirmed by the Plaintiff himself in his statement attached in the application filed in the Agricultural Tribunal Action No. WD 02/12.

That I reannex the relevant page entitled Applicants Section © which was attached in the Tribunal Action. That at lines 8 and 9 under paragraph (15) the Plaintiff has clearly stated:-

“when the 2^nd Respondent became the owner, she stopped me from cultivating cane” and at lines 10 and 11 he further said ‘she also told me to get rid of my cattles”

(iii) That in the Agricultural Tribunal proceeding, I am named as the 1^st Respondent and my late father is the 2^nd Respondent.

7. Mishra deposes that she has plans to farm her land for vegetables for both the domestic and export markets³.
8. Mishra also refutes the plaintiff’s allegation that she (Mishra) had encouraged the plaintiff to stay on the land. She also deposes that her father had assured her when he was still alive that he had made any commitment of the sort the plaintiff alleges.