IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 11 of 2011

BETWEEN :

CHANDRA LOK 
(fathers name Ballaiya) of 7 Royal Palm Road, Navutu, Lautoka and Retired Businessman.
PLAINTIFF

AND :

KUMAR SAMI NAIDU 
(fathers name unknown to the Plaintiff) of Toko, Tavua, Fiji.
FIRST DEFENDANT

AND :

KRISHNA RAJU 
(fathers name unknown to the Plaintiff) of Toko, Tavua, Fiji.
SECOND DEFENDANT

Counsel : Mishra Prakash & Associates
Nawaikula Esquire for the Defendants

RULING
INTRODUCTION

1.	On 15 July 2015, I delivered a ruling in this matter in which I dismissed the plaintiff's application under section 169 of the Land Transfer Act (Cap 131) and awarded $500 costs in favour of the defendants (see paclii (Lok v Naidu [2015] FJHC 538; HBC11.2011 (15 July 2015)). In that ruling, I did rely on the decision of Mr Justice Nawana in Ram v Lok [2011] FJHC 798; HBC320.2007 (9 December 2011) and also on the Fiji Court of Appeal's ruling in Lok v Ram [2012] FJCA 92; ABU0005.2012 (30 November 2012) which upheld Nawana J's ruling. What I did not realise at the time was that an application for special leave to appeal the decision of the Fiji Court of Appeal in Lok v Ram had, in fact, been made to, and determined by, the Supreme Court of Fiji in Lok v Ram [2014] FJSC 4; CBV001.2013 (4 April 2014). The decision of the Supreme Court effectively – in effect- did set aside the decision of Nawana J as well as the Fiji Court of Appeal. What this all boils down to is that Lok's title to the land in question must remain unscathed. 

ISSUES

2.	Had I been aware of the Supreme Court's decision, my ruling in Lok v Naidu [2015] FJHC 538; HBC11.2011 (15 July 2015) would have been different. The question I have to consider now is whether or not I can recall my above ruling and substitute it with one which would align with the Supreme Court's pronouncements?

DISCUSSION

3.	In Dietz v Lennig Chemicals Ltd [1969] 1 A.C 170., a widow, who was also the administratrix of her late husband's estate, was suing for compensation for the death of her husband as a result of an accident. In time, she would settle the claim by a trust deed that her solicitor had drawn up with his counterpart. As it turned out, the said widow actually did remarry shortly before she settled her claim. However, both solicitors were unaware of this fact when they were settling the claim. The fact of the widow's remarriage would have been a material factor in the case because, if known – it would have affected her entitlement to certain specified damages. The Master had endorsed the trust deed by initialling on the summons. Later, on application, the Master did set aside the consent order. He felt he was not yet functus and therefore, could still set aside the consent order considering that the consent order was yet to be perfected in the drawing up and sealing of a Consent Order. 

4.	That decision to set aside by the Master was upheld in every step of the appeal process right up to the Privy Council. The headnotes to the case reads as follows:

"..that as the order of November 12 had not been drawn up, it had not been perfected and the respondents were entitled to have it set  aside  as their  consent  to its making had been induced by an innocent representation on behalf of the appellant that she was a widow at the date of the  order "

5.	Albeit the above case was concerned with the setting aside of a consent order, I do not see any reason why it cannot also be applied in the circumstances of this case now before me. Accordingly, I now hold that - as my Ruling of 15 July 2015 is yet to be drawn up, it has not been perfected and it is open to this Court to recall it and to have it set aside.

6.	Accordingly, I now recall my earlier Ruling and set it aside.

7.	The reason why I am setting my earlier Ruling aside is because the defendants, in my view, have failed to show cause why an Order for Vacant possession should not be granted. They have been relying on an agreement they entered into with Bal Ram (Lok's brother). Bal Ram, in turn, would argue that the portion of land in question (which he had sold to the defendants), was allocated to him by his (and Lok's father) pursuant to a rely on a Deed of Family Arrangement or Deed of Family Settlement. 

8.	However, that Deed of Family Arrangement/Settlement was impugned by the Supreme Court of Fiji as follows:

[19] Consideration of the 1st question of law (see para 18 above)

…. the pivotal question that awaits determination by this Court is whether the present 1st respondent had sufficient locus standi to institute the civil action bearing No.HBC/320 of 2007 in the High Court. As per his statement of claim filed in the High Court his claim has been mainly based on the 1/6th share alleged to have received by him under the Deed of Family Settlement (DFS) in September 1982 and on another share said to be received by another brother of his by the name Jai Raj from the father under the said DFS. The 1st Respondent's stance had been that he possessed both the above mentioned the said portions of the subject matter. According to the aforesaid Deed of Family Settlement, there had been a clause to the effect that it should get the consent of the Native Land Trust Board as required under section 12 of Native Land Trust Act. It had been the clear position of the 1st Respondent in the High Court that no consent was obtained from the I Taukei Land Trust Board (ITLTB). At this juncture it would be appropriate to consider the provisions in Section 12(1) of the Native Land Trust Act. The said section thus reads as follows:

"Section 12(1) Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lease under this Act to alienate or deal with the land comprised in his lease or any part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the Board as lessor or head lessor first had and obtained. The granting or withholding of consent shall be in the absolute discretion of the Board, and any sale, transfer, sublease or other unlawful alienation or dealings effected without such consent shall be null and void."

Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease. 

[20] In terms of the above section it shall not be lawful for any lease to alienate or deal with a land which is the subject of the lease or any part thereof whether by sale, transfer or sublease or in any other manner whatsoever without the consent of the ITLB as lessor or head lessor first had and obtained.

[21] On the material available it is manifestly clear that no consent had been obtained with regard to the Deed of Family Settlement and as such the 1st respondent could not have raised any claim to the subject matter under the aforesaid Deed. The stance taken by the present 1st respondent in the High Court appears to be the same. If the aforesaid deed is legally invalid the other brother (Jai Raj) who was alleged to have got another share of the land under the same deed also could not have got anything legally.

[22] …….

[23] …….

[24] The ….. conclusion of the Court of Appeal needs careful consideration by this Court. It is observed that the first respondent in his oral testimony in the High Court under cross-examination had specifically stated that there was no consent for subdivision by the Land Board. Obviously this has to be in relation to the so called Family Settlement Deed executed by the father (Ballaiya) during his life time. The 1st respondent's testimony to the above effect destroys the basis of his claim in the High Court, for the reason that even as admitted in his own testimony no consent was obtained from the Land Board. As such, due to lack of consent from the Land Board the said DFS is not a lawfully valid document. Therefore the claim raised by the 1st respondent on the basis of his possession of the portion of land he is said to have got under the said Deed together with the portion Jai Raj is said to have got under the same Deed, should fail.

9.	The above ruling of the Supreme Court justifies a similar approach above I had applied in Lok v Goundar [2011] FJHC 17; HBC203.2010 (26 January 2011) when dealing with another section 169 application by the same plaintiff against a different defendant who was occupying a different portion of the same land and who was mounting the same argument that the defendants before me have been making.

[15]. The question then is whether or not the defendant has discharged that burden?

[16]. It appears that the right to possession that the defendants claim rests ultimately on whether or not the plaintiff's title will be defeated in Balram's pending action in HBC 320 of 2007. I gather that this case has been marked for hearing from the 23rd to the 25th of May 2011 before Wickramasinghe J.

[17]. The question I ask is whether or not the pendency of that action is enough to sustain a right to possession for the time being in the defendants.

[18]. That issue was dealt with by the Fiji Court of Appeal case of Dinesh Jamnadas Lalji and Anor v Honson Limited F.C.A. Civ. App. 22/85 where Mishra J.A. said:

"At the hearing, the appellants' main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act." (emphasis added).

[19]. Also in Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) Mishra J.A. expressed the same view as above in the following words:

".....that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper."

Although the defendant has alleged fraud, and which is also the subject matter of the said action instituted by the defendant, there are no complicated questions of fact to be investigated. The procedure under s 169 is most appropriate here. On this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

"... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straight forward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."

[20]. Clearly, from these authorities, the pendency of related Writ proceedings is not – by itself – sufficient to shut out a section 169 claim. In my view, the pendency of a related civil action would be immaterial to a section 169 application in a situation where it is clear that the plaintiff's (i.e. plaintiff in the section 169 application) title is secure beyond impeachment. One such instance would be – where the section 169 application has been instituted by A who is a bona fide purchaser for value and the pending civil action is based on an allegation of fraud of the B who sold the land to A (see for example Chute v Wati  [2009] FJHC 247; HBC049.2008 (30 October 2009)).

[21]. However, in cases such as the present – where the nature of the allegations in the pending HBC 320 of 2007 – if proved – may well see the plaintiff's title being defeated – and where some evidence tending to support those allegations (in this case, the Deed of Family Arrangement) is adduced in the defendant's affidavit opposing the section 169 application – a summary eviction order should be refused.

[22]. If in this case before me now, an order for vacant possession would immediately set in motion a train of events beginning with the dismantling of the defendant's house and relocating to an alternative site – only to return if HBC 320 of 2007 was to be decided against the Chandra Lok (plaintiff in this case) – assuming Balram recommits to an arrangement similar to the existing one.

[23]. It is not clear to me how exactly one might classify the basis of the defendant's claim to possession – whether they had been paying some sort of rent to Balram pursuant to an "informal" tenancy arrangement, whether they are licensees – and so on and so forth. What is clear though is that the authority that Balram had given to the defendants purportedly gave them a right to occupy that portion of land that Balram thought belonged to him.

[24]. Whether or not Balram had that authority to give – will have to emerge from HBC 320 of 2007. However, it also rests on whether or not the NLTB had consented to that arrangement.

[25]. In reviewing the evidence before me - I was initially of the view that the defendants had shown sufficient evidence to remain in possession for the time being pending the outcome of HBC 320 of 2007. 

[26]. However, as alluded to above, there is one slight glitch in their case that changed my mind. That is the fact that there is no evidence before me that the Native Lands Trust Board ever consented to their occupation.

[27]. In Khan v Prasad [1996] FJHC 85; Hbc0480j.96s (23 December 1996), Mr Justice Pathik expressed the view that where the Director of Lands consent was not obtained on the defendant's occupation of a crown protected lease, the defendant's occupation was therefore unlawful which means that the defendant cannot justify remaining in possession. Interestingly, the defendant in that case had submitted that because there was no consent of the Director of Lands he cannot be evicted.

[28]. Pathik J said that the defendant cannot in the circumstances be regarded as a lawful tenant of the plaintiffs.

The defendant's assertion will not stand as in MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded." (quoting from RAM KALI below).

Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-

"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. .... While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case". (underlining mine)

[29]. The above case was concerned with the issue of whether or not the defendant/tenant had some arguable right of possession pursuant to a landlord-tenant arrangement over a Crown protected lease where the Director of Lands' consent to the arrangement had not been sought let alone obtained. There is no reason why the same principles cannot be applied here. If, in the event Balram is to win his case in HBC 320 of 2007, and decides to bring defendants back in, then he will just have to then regularize his arrangement with the defendants by seeking and obtain prior consent from NLTB.

[30]. Accordingly, I grant order in terms of the plaintiff's application. The defendants are to vacate the land in question (described in Lease No. 44656) within four weeks of the date of this ruling. I also order costs against the defendant which I summarily assess at $250-00 to be paid in 28 days.

10.	Having said all that, the bottom line is that the defendants cannot rely on their arrangement with Bal Ram to show cause because that arrangement is tainted with illegality for the following reasons:

(i)	the arrangement between the defendants and the iTLTB was not consented to by the iTLTB.

(ii)	furthermore, the above arrangement is premised on the Deed of Family Arrangement/Settlement which the Supreme Court has impugned for want of iTLTB consent on the Deed.

CONCLUSION

11.	Accordingly, I grant Order in Terms of the plaintiff's application and grant costs to the plaintiffs which I summarily assess at $1,000 ($500 each against each of the two defendants).

……………………….
Anare Tuilevuka
Judge
Lautoka High Court
26 August 2015