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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO: HBJ 16 of 2015
IN THE MATTER of an application by VERONICA TUIGASIALE for a Judicial Review under Order 53 of the High Court Rules 1988.
AND
IN THE MATTER of the Decision purported to be made by THE DIRECTOR OF LANDS on 17 August 2015 relating to the issue of Crown Lease No. 755 in favour of Rafco Enterprises Limited.
STATE
V
DIRECTOR OF LANDS
FIRST RESPONDENT
RAFCO ENTERPRISES LIMITED
a limited liability company duly incorporated under the laws of Fiji and having its registered office at c/o Shyam Narain Co. P O
Box 12676, Suva.
SECOND RESPONDENT
EX-PARTE : VERONICA TUIGASIALE
of 20 Matuku Street, Samabula, Suva.
APPLICANT
COUNSEL : Mr. J. Bale for the Applicant
Ms. T. Sharma with Ms. O. Solimailagi for the First Respondent
Mr. V. Prasad for the Second Respondent
Date of Hearing : 3 February 2016
Date of Ruling : 21 March 2016
RULING
Introduction and Background
[1] This is an application made by the Applicant, for leave to apply for Judicial Review, in terms of the provisions of Order 53 Rule 3(1) of the High Court Rules 1988. In terms of the provisions of Order 53 Rule 3(2), a Statement in Support of the application for Judicial Review, along with an Affidavit in Support deposed by the Applicant, was also filed.
[2] The Applicant seeks leave to apply for Judicial Review in respect of the First Respondent's decision to issue and/or renew the grant of Crown Lease No. 755 in favour of the Second Respondent, on 17 August 2015.
The reliefs which the Applicant is seeking are as follows:
The grounds upon which the reliefs are sought and said to be supported by the Affidavit filed by the Applicant are set out below:
[3] In her Affidavit in Support the Applicant states that on or about May 1987, she leased Crown Lease No. 755, being Lot 16 Samabula Indian Government Settlement, from the Second Respondent. She says that she has lived on the subject land with her family for the past 28 years.
[4] The First Respondent and the Second Respondent filed their Notice of Opposition to this application, on 29 October 2015 and 16 November 2015, respectively. This was supported by an Affidavit in Response, deposed by Preetika Prasad, Acting Director of Lands, on behalf of the First Respondent, and by an Affidavit in Opposition, deposed by Aktar Ali, a Director and Alternate Secretary of the Second Respondent Company.
[5] The Applicant, Veronica Tuigasiale, filed two Affidavits in Reply (one in reply to the Affidavit of Preetika Prasad and the other in reply to the Affidavit of Aktar Ali). In response, Aktar Ali filed an Affidavit in Response to the Affidavit deposed to by the Applicant.
[6] This matter was taken up for hearing before me on 3 February 2016. On that day Counsel for the Second Respondent took up two preliminary objections. Accordingly, Counsel were called upon to make submissions in respect of the two preliminary issues. The parties also filed written submissions, and also referred to several case authorities, which I have had the benefit of perusing.
The Preliminary Objections
[7] The Counsel for the Second Respondent raised the following preliminary objections.
(1) That no written consent of Director of Lands under section 13(1) of the Crown Lands Act [Chapter 132] has been obtained by the Applicant for the reliefs sought and
(2) That the Applicant has no statutory consent under section 13(1) of the Crown Lands Act [Chapter 132] to occupy the land in question and that the Applicant has no lawful right to bring present action as she is a trespasser
in unlawful and illegal possession of Crown Land.
[8] It must be said that even in the Notice of Opposition filed by the Second Respondent, on 16 November 2015, the Solicitors for the Second Respondent had raised the said two issues, and sought the Court's indulgence to determine them as preliminary issues or objections.
(1) That the Applicant does not have the written consent of the First Respondent, the Director of Lands, under section 13(1) of the Crown Lands Act [Chapter 132] for Crown Lease No. 755 (State Lease No. 19559) (the said land) to be dealt with by any court of law or under the process of any court of law.
(2) That the Applicant is a trespasser in illegal occupation of the said land and in persisting in forcefully remaining in unlawful occupation of the said land without the permission or authority of lawful lessee of the said land, the Second Respondent, and without the consent of First Respondent, under Section 13(1) of Crown Lands Act [Chapter 132].
Legal Provisions and Analysis
[9] Section 13 of the Crown Lands Act [Chapter 132] deals with 'protected leases'. The section reads as follows:
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 or 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 [Emphasis is mine].
Any sale, transfer, sublease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void.
(2) On the death of the lessee of any protected lease his executors or administrators may, subject to the consent of the Director of Lands as above provided, assign such lease.
(3) Any lessee aggrieved by the refusal of the Director of Lands to give any consent required by this section may appeal to the Minister within fourteen days after being notified of such refusal. Every such appeal shall be in writing and shall be lodged with the Director of Lands.
(4) Any consent required by this section may be given in writing by any officer or officers, either solely or jointly, authorised in that behalf by the Director of Lands by notice published in the Gazette. The provisions of subsection (3) shall apply to the refusal of any such officer or officers to give any such consent.
(5) For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee [Emphasis is mine].
[10] Therefore, from a plain reading of Section 13(1) of the Crown Lands Act it can be interpreted as follows:
1. In the case of a protected lease it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease or 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.
2. Except at the suit or with the written consent of the Director of Lands, shall any such protected lease be dealt with by any court of law or under the process of any court of law.
3. The Registrar of Titles shall not register any caveat affecting such protected lease without such written consent of the Director of Lands.
[11] This position is supported by case authorities as well. In the case of Ram Manohar v Lallu Chaudhary [1967] FJCA5; [1967] 13 FLR 33 (23 February 1967), the Court of Appeal held as follows:
"......... The registered title to this land is still in the name of the plaintiff and I hold as a fact that no consent has ever been given by the Director of Lands to it being transferred by the plaintiff to the defendant. The Director of Lands has consented to the plaintiff bringing this action for possession and has not consented to the relief sought by the defendant in his counter-claim being granted by this Court. In the absence of such consent, under the provisions of section 15 of the Crown Lands Ordinance, this Court has no jurisdiction to give the defendant the relief he seeks, even if the evidence justified this course, which in my view it does not."
[12] Another relevant passage of the judgment which further highlights the safeguards attached to protected leases is set out below:
"......... However, it was argued before the learned trial Judge on behalf of the respondent that in any even the court had no jurisdiction to entertain the counter claim by reason of the provisions of subsection (1) of section 15 of the Crown Lands Ordinance (Chapter 138), relating to protected leases, because the appellant has failed to obtain the consent of the Director of Lands to that claim. That subsection provides that no protected lease, and the lease in question is a protected lease, "shall be dealt with by any court or under the process of any court of law" without the written consent of the Director of Lands. No such consent had been obtained in respect of the counter-claim. For the appellant it was argued that once an action was commenced with the consent of the Director such consent was sufficient to cover any counter-claim set up in the same action. The learned trial Judge rejected that view, and the point was taken again before this Court. There is no authority on the point so far as the interpretation of local legislation is concerned, but, with respect, in my opinion the learned trial Judge was correct in the view which he took. The Ordinance requires that consent be obtained before a lease may be dealt with in any court. The consent clearly will involve a consideration by the Director of the relief claimed. In this case, for example, the relief claimed was recovery of possession from a trespasser by the registered lessee. It would be strange, and would go far to defeat the object of the section, if a counterclaim, claiming some quite different relief, as in this case a change in the registered ownership of the lease, could be dealt with without the Director having opportunity to consider whether or not such a change in ownership was acceptable. For those reasons, I am of the view that in dealing with suits regarding leases protected by virtue of the Crown Lands Ordinance, both claim and counter claim requires the consent of the Director of Lands."
[13] On the issue of whether the consent of the Director of Lands should be obtained prior to filing of an action; in Bolalailai v Narayan [2007] FJHC 142; Fiji High Court Civil Action No. HBC 406 of 2004 (7 February 2007), His Lordship Justice Jiten Singh, expressed the following view:
"Crown Lease 2057 is a protected lease under the provisions of the State Lands Act (Chapter 132). As such it cannot be dealt with by a Court without consent of the Director of Lands (in terms of Section 13 of the Act).....
Mr. O'Driscoll (Counsel for the Plaintiffs) before commencement of evidence being taken stated that he accepts that these proceedings were filed on 14 September 2004, but consent to the proceedings was obtained on 1 November 2004. ....... Ms. Chan (Counsel for the Defendant) submits that because consent to take proceedings was obtained after commencement of proceedings, the entire proceedings are null and void. She relies on an ex-tempore judgment in Ratna Wati Sharma v Veer Mati & Another – HBC 425 of 2003L. That case can be distinguished because in that case there was no evidence before the court that consent to commence proceedings had been obtained at any stage.
In the present case there is consent albeit obtained after commencement of proceedings. The critical words in the section are "be dealt with by a court of law". Simply filing an action in a court is not a dealing in land. Actions can be discontinued at any time before any orders are made. Dealing with the land occurs if the orders or judgment of a court in some way affects some interest of the lessee in the land. The prior consent of the Director is confined to transferring, alienating, mortgaging, charging etc. It does not extend to filing of actions.
There is nothing in this section which requires one to obtain the consent of the Director before an action is filed in court. Such consent can be obtained at any time before the land is 'dealt with' by the court. Dealing with occurs when an order is made or judgment is delivered. Mohammed Rasul v Jeet Singh – 10 FLR 16."
[14] Counsel who appeared on behalf of the First Respondent, the Director of Lands, fully endorses the first preliminary objection taken by the Second Respondent. In support they refer to the case of Director of Lands v Razak [1993] FJCA 49; [1993] 39 FLR 292 (11 November 1993). In this case the Court has discussed Section 13(1) of the Act at length and has come to the following finding:
".......Consent is also required for the lease to be dealt with in court proceedings or under any court process before the registration of any caveat affecting the lease. A mortgagees' sale for example would require the consent of the Director although it involves the lease being dealt with other than by lessee".
[15] During the hearing the Counsel for the Applicant took up the position that the requirements of Section 13(1) of the Crown Lands Act are only applicable to lessees. This cannot be accepted as it is enumerated in Section 13(5) of the Crown Lands Act that "For the purposes of this section "lease" includes a sublease and "lessee" includes a sublessee".
[16] Further, the Counsel for the Applicant attempted to distinguish the present case from the two cases of Ram Manohar v Lallu Chaudhary and Bolalailai v Narayan.
[17] Counsel submitted that there are two significant features which distinguish the present case from the Court of Appeal case of Manohar v Chaudhary.
"Firstly, in Manohar v Chaudhary, the Appellant was seeking to change the registered ownership of the land in question in that case. The relief sought by the Appellant in his counter-claim in that case therefore would clearly have resulted in a "dealing" of the land in question and therefore knowledge and consent of the Director of Lands was required. The applicant in the present case does not seek to change the registered ownership of Crown Lease No. 755 (State Lease No. 19559). The applicant is seeking to judicially review the decision of the Director of Lands in issuing Crown Lease No. 755 (State Lease No. 19559) to the Second Respondent on the ground that the decision of the First Respondent was ultra vires vis a vis Section 7A of the Lands Sales Act (as amended).
Secondly, the parties in Mahohar v Chaudhry were the registered lessee (Respondent) and a trespasser (Appellant). The Director of Lands was not a party to that action. There was therefore a possibility that if the Appellant was allowed to proceed with his counter-claim against the Respondent (without the knowledge and consent of the Director of Lands), the case could have resulted in a change in the registered ownership of the land without the knowledge of the Director of Lands. In the present case, the Director of Lands is the First Respondent and so the Director of Lands has had knowledge of these proceedings from the outset."
"...In the present case, the Applicant is not seeking to have the registered ownership of Crown Lease No. 755 (State Lease No. 19559) changed in her favour. The applicant is seeking to judicially review the decision of the Director of Lands in issuing Crown Lease No. 755 (State Lease No. 19559) to the Second Respondent on the ground that the decision of the Director of Lands was ultra vires. In the circumstance, the Applicant respectfully submits that Manohar v Chaudhary is distinguished from the present case and does not therefore apply."
[18] Let me once again refer to the appropriate portion in section 13(1) of the Crown Lands Act (Chapter 132). "... 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."
[19] The term 'suit' is not defined in the Crown Lands Act. However, in Order 1 Rule 2(1) of the High Court Rules 1988 (the interpretation section), it is defined that 'suit' includes action. In the same Rule, 'action' has been defined to mean a civil proceeding commenced by writ or in such other manner as may be prescribed by these Rules but does not include a criminal proceeding by the State.
[20] It is submitted that from the above interpretation it is clear that the term suit would include any civil proceeding commenced by writ or in such other manner as may be prescribed by these Rules, other than a criminal proceeding by the State. This necessarily includes applications for Judicial Review as well.
[21] Counsel for the Applicant further submits that Bolalailai v Narayan and Rasul v Jeet Singh are authorities which can be relied on by this Honourable Court to confirm the legal proposition that the prior written consent of the Director of Lands is not a requirement under Section 13(1) of the Crown Lands Act [Chapter 132] before the filing of any action involving a protected lease.
Furthermore, he states that the two cases, cited above, make it abundantly clear that written consent of the Director of Lands can be obtained any time prior to the making of an order or final judgment and even the absence of consent at the time of the making of the order of final judgment does not invalidate the proceedings as the order of final judgment can be made subject to the pending consent of the Director of Lands.
[22] In the present case however, the Applicant has not obtained any written consent of the Director of Lands, either prior to this Application been filed in court or even subsequently. There is no material to this effect in the initial Affidavit filed in support of the of the application for Judicial Review, nor in the two Affidavits filed in Reply (one in reply to the Affidavit of Preetika Prasad and the other in reply to the Affidavit of Aktar Ali). Going by the submissions made by counsel representing the First Respondent, the Director of Lands, there is no likelihood of such written consent been granted to the Applicant.
Conclusion
[23] For all the aforesaid reasons I uphold the first preliminary objection taken by the Second Respondent, namely that the Applicant does not have the written consent of the First Respondent, the Director of Lands, under section 13(1) of the Crown Lands Act [Chapter 132] for Crown Lease No. 755 (State Lease No. 19559) to be dealt with by any court of law or under the process of any court of law.
[24] Since I am upholding the first preliminary objection taken by the Second Respondent, there is no need for me to go into the second preliminary objection taken by the Second Respondent, namely that the Applicant is a trespasser in illegal occupation of the said land and in persisting in forcefully remaining in unlawful occupation of the said land without the permission or authority of the lawful lessee of the said land, the Second Respondent, and without the consent of First Respondent, under Section 13(1) of Crown Lands Act [Chapter 132]. In any event, this is a matter to be determined in the separate civil action HBC 02/2016, which the Second Respondent is said to have instituted against the Applicant.
[25] Accordingly, I make the following Orders:
ORDERS
Dated this 21st day of March 2016, at Suva.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
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