Hague v Hussain [2015] FJHC 74; HBC166.2013 (6 February 2015)

IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA

DISTRICT REGISTRY
Civil Action No. HBC 166 of 2013

BETWEEN:

SHEIK SHAFIYUL HAQUE of Meigunyah, Nadi, Self-
Employed
PLAINTIFF

AND:

ABID HUSSAIN of Meigunyah, Nadi, Businessman
DEFENDANT

Appearances:
Ms. Laisani Tabuakuro for Plaintiff
Ms. Barbara Doton for Defendant

JUDGMENT

Introduction

1. The Defendant filed Summons dated 15th August, 2014 under Order 58 Rule

8 and Rule 11 of the High Court Rules 1988 and the inherent jurisdiction of this Court seeking inter alia the following orders.

(i) An ORDER that leave be granted to the Defendant to appeal to the Judge from an Interlocutory Decision/Ruling/Judgment delivered by the Master of the High Court Mr Mohammed Ajmeer on the 11th day of August, 2014.

(ii) An ORDER that the time for bringing such appeal be extended until such time as this Honourable Court determines the Defendants' application for leave to appeal if necessary.

(iii) An ORDER that the execution and/or enforcement of the said Decision/Ruling/Judgment delivered made by the Master of the High Court on the 11th day of August, 2014 be stayed until the determination of this Application and the Appeal.

2. The Defendants' application for leave to appeal is supported by an Affidavit

sworn by him on 14th August, 2014.

Background

3. By way of originating Summons [expedited form] the Plaintiff sought

immediate vacant possession of the land comprised in the crown lease No.
9749 (the property) on the basis that the Defendant is occupying the property without consent of his or his predecessors in title. The property involved in this action is a state land. The Plaintiff made the summary application before the Honorable Master under Order 113 of the High Court Rules.

4. The Defendant filed affidavit in response deposing the following facts:
   
   • (i) That the crown lease is registered under the name of the Plaintiff but he is not the beneficial owner of the property.
     
   • (ii) That from or about February 2006 to July 2006 the Plaintiff rented out the farm house to him at a rental of $250.00 per month.
     
   • (iii) That the rental was increased to $300.00 per month from August 2006 and that he paid $300.00 per month from August 2006 to on or about December 2008.
     
   • (iv) That from on or about January 2009 to December 2010 he carried out work for the Plaintiff and his uncle on the farm land and it was agreed that instead of paying money for him for the work they would in lieu treat the same as payment of rent from him to the Plaintiff.
     
   • (v) That on or about 2010 it was orally agreed between the Plaintiff and his uncle and the Defendant that the Plaintiff would sell the said property and improvements thereon to the Defendant for a sum of $50,000.00.
   • (vi) That the Defendant was to pay $1500.00 per month until entire payment was made in full and not to pay any rent to the Plaintiff from January, 2010.
     
   • (vii) That the Defendant made substantial improvement to the property and cultivated the land ever since he started renting the farm house.
     
   • (viii) That the Plaintiff duly executed the relevant documents to complete the transaction and authorised his uncle to complete the transaction. The Defendant has paid $14,000.00 to the Plaintiffs' uncle, Mr Rashid for the property.
     
   • (ix) That the Defendants' Solicitors applied for consent of the Director of Lands for the transfer of the property to him and due to the moratorium over agricultural lease placed by the Government the application for consent for the transfer is still pending in the Lands Department.
     
   • (x) That he is not in illegal occupation of the property.
     
5. On 22nd January, 2014 when the matter was taken up for hearing, Hon.

Master made orders in terms of the Originating Summons filed on 10th September, 2013. He also ordered for vacant possession of the property. The Defendant has not participated in the hearing of the application.

6. The Defendant filed Ex-Parte Notice dated 10th February, 2014 seeking

Orders to set aside the Order made by the Honourable Master and a Stay Order to stop the execution of the said Order. His application was supported by an Affidavit sworn by him on 8th February, 2014.

7. The Plaintiff filed Affidavit in reply opposing the application of the Defendant

and the Defendant filed affidavit in response to Affidavit of the Plaintiff.

8. Upon hearing the application to set aside the Order, Honourable

Master delivered his Ruling dated 11th August, 2014 dismissing and striking out the application with costs.

9. The Defendant filed the present application seeking leave to appeal from the

said ruling of the Master and for stay of execution.

10. The Plaintiff opposed the application by the Defendant by filing Affidavit on

11th September, 2014. The Defendant filed Affidavit in Response to the Affidavit of the Plaintiff.

11. On the date of hearing of the matter the Learned Counsel for both parties

made oral submissions and tendered written submissions with leave of the Court.

The Law & Analysis

12. In this matter the onus is on the Defendant to establish that there is an

arguable grounds and chances of appeal succeeding if the application for leave to appeal is allowed.

13. The Defendant in his Affidavit claims that he is not in illegal occupation of

the Crown lease no. 9749 as the Plaintiff had given consent for him to occupy the property as a tenant and therefore the Plaintiff is not entitled to commence the action under Order 113 for the recovery of the property. He also states that he has a matter pending at the Agricultural Tribunal and the Nadi Magistrates Court with respect to the subject property.

14. It is his contention that he has a meritorious defence and has raised triable

issues in his setting aside application which were not considered by the Master of the High Court.

15. In the Affidavit filed by David Sachindra Reddy in support of the application

to stay, it is stated that the Agricultural Tribunal had struck out the Defendants' application by the Ruling dated 14th August, 2014 and that the Defendant has lodged an appeal on the said decision. The Defendants' proposed grounds of appeal against the decision of the Learned Master are annexed to the Affidavit of Mr Reddy marked "DSR4".

16. It was argued by the Plaintiffs' Counsel that the Defendants' possession is

illegal/and or without leave because the Plaintiff is the registered lessee of the property. She submitted that the agreement to transfer the land to Defendant has become null and void in the absence of consent from the Director of Lands. In contra the Defendants' Counsel argued that the Defendant has a meritorious defence as he entered the land with the consent of the Plaintiff and also that the matter should not have been decided summarily without calling evidence.

17. At this stage it's not my duty to go into the actual merits of the appeal but to

consider whether there is a serious question to be adjudicated if leave is
granted opposed to it being frivolous and vexatious. For this purpose I will
first consider grounds of appeal No. 1 and 5 which are as follows:

(1) The Learned Master erred in law and in fact in finding that the

Plaintiff is entitled to commence the action under Order 113 for the recovery of the Property.

(5) The Learned Master erred in law and in fact in finding that the Sale &

Purchase Agreement dated the 14th day of October 2010 is illegal and

null and void.

18. This application for leave to appeal is made pursuant to the Ruling of the

Learned Master dismissing and striking out the application to set aside the Order granting immediate vacant possession to the Plaintiff of the land contained in Crown Lease No. 9749 being lot 2 on plan SO/0641, which is an agricultural land.

19. The order granting vacant possession was made on the summary application

made under Order 113 of the High Court Rules.

Order 113 of the High Court Rules provides:

"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, the proceedings may be brought by Originating Summons in accordance with the provisions of this Order".

20. In this matter the Defendant admits that the Plaintiff is the registered lessee of the property and that the property is a state land.
    
21. He says that he first came into the land with the consent of the owner and that he was a tenant paying monthly rentals to him. He opposes the application to evict him under Order 113 stating that he is not a trespasser on the land.
    
22. The Defendant in his Affidavit deposes that on or about 14th October, 2010 he entered into an agreement with the Plaintiff for the Defendant to purchase the Crown Lease No. 9749 for a consideration of $50000.00 subject to consent of the Director of Lands. It is also stated by the Defendant that he has already paid $14000.00 to the Plaintiff. He has also deposed that his Solicitor applied for consent of the Director of Lands for the transfer of the property to him and the said consent is still pending in the Lands Department.
    
23. Having considered the affidavit evidence adduced in these proceedings I find that the Defendant has first entered the land with the consent of the owner and paid rent for the farm house. However, on or about the 14th of October, 2010 the Defendant has entered into a sale and purchase agreement with the Plaintiff for the Plaintiff to sell the property to the Defendant for a sum of $50000.00 and the Defendant has not paid any rent to the Plaintiff thereafter.
    
24. On the facts revealed in evidence I find that the Defendant has entered the Plaintiffs' land with the consent of the Plaintiff as a tenant. It is also revealed that from the year 2010 he is occupying the property not as a tenant but as a purchaser on a sale and purchase agreement which has not been consented to by the Director of Lands. Therefore it is my view that the legal relationship between the Plaintiff and the Defendant has changed since 2010 and the Defendant cannot now claim that he is on the land with the leave and licence of the Plaintiff as he is now relying on the aforesaid sale and purchase agreement to occupy the property.
    
25. Scope of Order 113 of the High Court Rules is discussed in The Supreme

Court Practice, 1993 Volume 1, 0,113/1 – 8/1 at page 1602. The relevant paragraph is as follows:

"The application of this Order is narrowly confined to the particular circumstances described in r.1.i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974]1 AII E.R. 593." (emphasis added)

26. It is clear from the above paragraph that Order 113 also applies to a person

who has entered into possession of land with license but has remained in occupation without licence.

27. In this matter the Defendant has entered into possession of land with a

licence but remains in possession relying on a sale and purchase agreement which lacks the consent of the Director of Lands. He has also paid part of the agreed sum to the Plaintiff. It is evident from the said facts that the said transaction amounts to a dealing on the land.

28. In Reddy v Kumar [2012] FJCA 38, ABU 0011.11 (8 June 2012) Fiji Court of

Appeal held that any dealing in respect of a Government land effected without the consent of the Director of Lands shall be considered ab-intio void and has no effect or force in the eyes of the law. It is further stated in the said Judgment that the consent of the Director under the Crown Lands stands as a mandatory requirement before any transaction or similar dealing is effected in respect of a leasehold Government Land.

In paragraph 9 and 10 of the Judgment, his Lordship Chirasiri J stated as follows:

"9. The above section of the Crown Lands Act, clearly stipulates that it is unlawful to alienate or deal with a land comprising a lease unless the written consent of the Director of Lands first had and obtained. It is further stated that any sale or transfer or other alienation or any dealing effected in respect of such land without the consent of the Director of Lands shall be null and void. Accordingly, a statutory bar is being imposed for the transactions or dealings affecting Government land or part thereof which is subjected to a protected lease unless and until the consent for such a transaction is obtained from the Director of Lands beforehand. Therefore, if any dealing in respect of a Government land is effected without the consent referred to above, such a transaction shall be considered ab-intio void and has no effect or force in the eyes of the law."

"10. When looking at the said Section 13, it seems that the consent of the Director referred to therein should be given by him only upon considering the totality of the provisions contained in the Crown Lands Act. That power of the Director cannot be exercised by a person functioning in another capacity than of the Director of Lands. [Section 13(4) of the Act] However, it must be noted that it does not mean that the right to review decisions of the Director or the Minister, if there had been an appeal under Section 13(3) to the Minister, is taken away from the jurisdiction of Courts but of course subject to the provisions of the law prevailing in Fiji. Hence, the requirement to have the consent of the Director under the Crown Lands Act stands as a mandatory requirement before any transaction or similar dealing is effected in respect of a leasehold Government land."

(emphasis added)

29. In considering the principles laid down in the above Judgment it is clear that

the dealing in respect of the Government land by the Defendant in this matter without the consent of the Director of Lands is ab-intio void and as such he should be considered as a trespasser who has no license to occupy the land since 2010. Therefore I hold that the Defendant has entered the property with the license but remains in occupation without a licence.

30. The Learned Master had dealt with this issue in his Ruling and the Order

and correctly held that the Plaintiff is entitled to possession under Order 113 of the High Court Rules.

31. Though the Defendant takes up in grounds of appeal that a notice to

vacate was not served on the Defendant, it is my view that such notice is not required in proceedings under Order 113 rule 3.

32. Considering all of the above it is my view that the Defendant has not raised

arguable grounds of appeal in this matter and that there is no serious question for adjudication in appeal and therefore leave should not be granted to appeal the Masters' decision.

Final Order

33. (i) The Defendants' application for leave to appeal and stay of the

execution is dismissed.

(ii) The Defendant to pay cost summarily assessed at $750.00 to the Plaintiff.

Lal S. Abeygunaratne
Judge

At Lautoka
6th February 2015