IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 195 of 2014

BETWEEN:

MCGREGOR INVESTMENTS LIMITED a limited liability Company having its registered office at 60 – 62 Army Street, Toorak, Suva.
PLAINTIFF

AND:

MOHAMMED FAROOK of Enamanu Road, Nadi.
DEFENDANT

Mr. GyanendraAdish Kumar Narayan with (Ms) Nilema Samantha for the Plaintiff
Mr. KemueliQoro with (Ms).JyotiSangeeta Singh for the Defendant

Date of Hearing: - 23rd November 2015
Date of Ruling : - 15th April 2016

RULING

(A)	INTRODUCTION
(1)	The matter before me stems from the Plaintiff's Originating Summons for an Order for vacant possession against the Defendant, made pursuant to Order 113 of the High Court Rules, dated 01st December 2014.

(2)	The application for eviction is supported by an affidavit sworn by Mr. Vikesh Vinod Gokal, the Director of the Plaintiff Company.

(3)	By the action, the Plaintiff seeks vacant possession of State Lease 6362 Lot 13 ND 5121 Pt of Enamanu & Solawaru & ND 88 formerly CT 5248 7 CL 3149 (Farm 2883) situated at Enamanu Road, Nadi comprising an area of 13 acres, 1 rood and 4 perches. This lease expired during the pendency of this action and has now been renewed and replaced with a fresh lease being State Lease 19555.

The Court permitted the Plaintiff time to obtain and produce State Lease 19555 after completion of the formalities by the Director of Lands to prepare and register this with the Registrar of Titles. State Lease 19555 has now been produced by the supplementary affidavit of "Elizabeth Saverio" sworn on 7th September 2015 marked EYS-2.

(4)	The application for eviction is strongly resisted by the Defendant.

(5)	The Defendant filed an "Affidavit in Opposition" opposing the application for eviction followed by an "Affidavit in Reply" thereto.

(6)	The Plaintiff and the Defendant were heard on the Originating Summons. They made oral submissions to Court. In addition to oral submissions, the Counsel for the Plaintiff and the Defendant filed a careful and comprehensive written submission for which I am most grateful.

(B)	THE FACTUAL BACKGROUND

(1)	What are the circumstances that give rise to the present application?

(2)	To give the whole picture of the action, I can do no better than set out hereunder, the main averments/assertions of the pleadings.

(3)	The Plaintiff was the registered proprietor/lessee of Crown Lease 6362 Lot 13 ND 5121 Pt of Enamanu & Solawaru& ND 88 formerly CT 5248 7 CL 3149 (Farm 2883) situated at Enamanu Road, Nadi comprising an area of 13 acres, 1 rood and 4 perches (L.D. Ref: 4/10/1485) 

(Annexure VVG-2 in the Affidavit of Vikesh Vinod Gokal)

 This has now been replaced with State Lease 19555 over the same land for a period of 99 years with effect from 1stJanuary 2015.

(Annexure EYS-2 to the Affidavit of Elizabeth Saverio sworn on 7th September 2015.)

The Plaintiff had purchased Crown Lease 6362 on or about 10th May 2006 and the transfer was registered in its favour from the Estate of Kewal Ram.

 * Paragraph 3 in the First Affidavit of VikeshGokal sworn on 26th November 2014 and in particular the memorial page.

With that short introduction, let me set out the relevant facts;

(4)	Mr. Vikesh Vinod Gokal, the Director of the Plaintiff Company, in his "Affidavit in Support" deposes inter alia; (as far as relevant)

Para 4. AK Lawyers and I have made enquiries from the previous owner and with the Director of Lands office and have ascertained that the Defendant was an interested purchaser pursuant to a Sale and Purchase Agreement made on 19th July, 2002 entered with the previous proprietors, Mr Arvind Kumar and Anoj Kumar, as administrators of the Estate of Kewal Ram. The Defendant had agreed to buy part of the land in State Lease 6362 being an area of approximately one quarter acre. I produce a copy of the Agreement dated 19th July, 2002 marked as annexure "WG-3".

5. State Lease 6362 is a protected lease and the transaction required the consent of the Director of Lands. The enquiries have revealed that the Director of Lands did not consent to the above transaction and had advised Babu Singh & Associates who are the solicitors for the trustees of the Estate if Kewal Ram that the Defendant is a trespasser on State Lease 6362. I produce a copy of the letter from the Divisional Surveyor Western marked "VVG-4".

6. Enquiries with representatives of the Estate of KewalRam also revealed that an application to the Director of Town an Country Planning as required under the Subdivision of Lands Act was also refused. I now produce a copy of the refusal marked "VVG-5."

7. The defendant in 2009 instituted civil proceedings against the vendors on the Agreement dated 19th July, 2002 being Nadi Magistrate Court Civil Action No. 128 of 2009. In this action the defendant sought monetary restitution as he admitted in the pleadings that no consent was obtained from the Director of Lands. This action was struck out due to non- appearance by the Plaintiff and/or his Solicitors. I produce a copy of the Writ and a better transcribed copy of the Statement of Claim and a sealed Order marked as "VVG-6", "VVG-6a" and VVG-6b" respectively.

8. Sometime in 2013, the Defendant forcefully entered part of the State Lease 6362 and started occupying an area of approximately one quarter acre. The Defendant has constructed a swelling and is occupying this with his family. The Plaintiff has not granted any lease, licence or consent for the Defendant, his family or any third party to occupy the land in question. The Plaintiff has not demanded or received any rent from the Defendant and nor has the Plaintiff authorized anyone on its behalf to collect rent or to lease any part of the Plaintiff's said land to the Defendant.

9. A notice was served on the Defendant on 13th February 2014 to provide vacant possession. However the Defendant has failed refused and/or neglected to vacate and wrongfully holds possession of the part of the property comprised in State lease 6362. A copy of the notice is produced by me marked "VVG-7".

10. The Defendant and his family's occupation of any part of the lands comprised in State Lease 6362 is illegal and does not have any consent of the Director of Lands or the required approval under the Subdivision of Lands Act. The Plaintiff has obtained the consent of the Director of Lands to institute this action to evict the Defendant. The Defendant and anyone claiming any right through him are all squatters, trespassers and in illegal occupation. I produce a copy of the consent from the Director of Lands marked "VVG-8".

(5)	The Defendant for his part in seeking to show cause against the Summons, filed an "Affidavit in Opposition" in which he deposed inter alia; (as far as relevant)

Para 6. THAT I admit the contents of paragraph 3 of the said Affidavit and I further state that I verily believe the Plaintiff has only purchased 10 acres of Land from the said property.

7. THAT as to paragraph 4 of the said Affidavit I do not comment as to when the Plaintiff enquired with the Director of Lands for the said Land as this fact is only well known to him, and further I state that I had entered in an sale and purchase agreement with the Estate of Kewal Ram in the year 2002 for ¼ acre of land from the said property which the previous owner had taken money and promised to properly sub-divide for me.

8. THAT I deny the contents of paragraph 5 of the said affidavit and state that the Consent was not refused by the Director of Land but rather it was not lodged by the previous Owner's Solicitor as it had been agreed to.

9. THAT I admit paragraph 6 of the said Affidavit and state that the previous owner had encouraged me to build the property and they had undertaken for all the approvals from the respective authorities through their Solicitor.

10. THAT I admit paragraph 7 of the said Affidavit and further state that I have a good claim against the Defendants but due to my previous Solicitor not appearing it was struck out. I am now in the process of engaging another Solicitor to Act for me.

11. THAT I deny the contents of paragraph 8 of the said affidavit and further state that the previous owners had obtained the selling price together with sub-division cost from me in the sum of $4,500 and encouraged me to build my house while their Solicitor was taking care of all the documentations including Sub-Division, Consent from the Director of Land and Transfer. The previous owners had also brought a Surveyor who then had surveyed and pegged ¼ acre of Land for me and stated that now this would be my piece of Land which I had purchased from the previous Owners. I then improved the said piece of land and built my house which I had completed building sometimes in 2005. Since then I am residing there with my family. My house was completely destroyed in December 2012 hurricane which I then re-constructed and continued living there with my family.

13. THAT I note the Plaintiff has obtained Consent of the Director of Lands to institute the matter against me and further state the previous owners had the intention of selling the land to me which they did and has already obtained the money from me. I am living on the said piece of land since 2005 and so I am not a trespasser on the said property.

(6)	"In rebuttal", the Plaintiff deposes as follows;

Para 2. As to paragraph 6 of Farook's affidavit I admit that the Agreement with the Plaintiff's predecessor in title was to acquire 10 acres. However, the transfer was in fact affected for the total lands covered by State Lease 6362. The Plaintiff is the registered proprietor of the whole of the lease as is evident from the instrument of title.

3. As to paragraph 7 of the Farook's Affidavit I reiterate the contents of paragraph 5 and 6 of my earlier affidavit. I am also aware from my experience in property matters involving the Plaintiff that for any dealing which involves a subdivision outside the town boundary or three miles thereof the approval of the Director of Town and Country Planning is required. In the Defendant's case the approval of the Director was refused. I am informed by the Plaintiff's predecessor in title that no approval of the Director was in place prior to the entry into the agreement with the Defendant or anytime at all.

5. As to paragraph 9 of Farook's Affidavit, I have been informed by the representatives of the Estate of Kewal Ram that no-one on their behalf encouraged the Defendant to build. Approval of the Director under the Town and Country Planning Act had been refused and the matter therefore could not proceed. At the time of the construction by the Defendant the land had already been transferred to the Plaintiff.

6. As to paragraph 10 of the Farook Affidavit I have been advised by the Plaintiff's solicitors that the Defendant's claim in the Magistrate's Court was doomed to fail anyway. The claim was struck out because neither the Counsel nor Defendant appeared.

7. As to paragraph 11 of the Farook Affidavit I deny the contents thereof and repeat the contents of the proceeding paragraphs hereof. The previous owner had attempted to return the money to the Defendant which for reasons best known to the Defendant he declined to accept. I produce and annex a copy of the Defence marked as "VVG-9" which is self-explanatory.

(C)	THE LAW

(1)	Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing summary application for eviction under Order 113 of the High Court Rules, 1988.

(2)	Rather than refer in detail to various authorities, I propose to set out hereunder important citations, which I take to be the principles of the play.

(3)	Order 113 of the High Court Rules, 1988 provides a summary procedure for possession of Land.

Order 113 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."

(4)	Justice Pathik in "Baiju v Kumar (1999) FJHC 20; HBC 298 J.98, succinctly stated the scope of the order as follows;

"The question for (the) Courts determination is whether the plaintiff is entitled to possession under this Order. To decide this Court has to consider the scope of the Order. This aspect is covered in detail in the Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:

"This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers.

 As to the application of this Order it is further stated thus:

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 hasentered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licencebut 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 hold over after the determination of thelicence(Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593.

(5)	This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:

this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.

I have carefully considered all the affidavits evidence adduced in this case and the written and oral legal submissions from both counsel.

…

The facts do not reveal that the defendant is a trespasser on the land. He continued living there as a licensee …

On the facts of this case, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.

Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others[1972] 3 All E.R. 629 squatters and trespassers are defined as:

He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can …..

Goulding J. said that:

 …..where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession …..

Another definition of "trespasser" is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:

 A trespasser is a person who has neither right nor permission to enter on premises.

Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] A.C. 877 at 904:

 The term 'trespasser' is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another's land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child – all may be dubbed as trespassers."

(6)	I refer to Sir Frederick Pollock's statement in the case of Browne v. Dawson (1840) 12 Ad. & El 624 where his Lordship said;

 "….. A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner….."

(D)	ANALYSIS

(1)	Before passing to the substance of the Plaintiff's Originating Summons for vacant possession, let me record that the Counsel for the Plaintiff and the Defendant in their written submissions has done a fairly exhaustive study of the judicial decisions and other authorities which they considered to be applicable.

I interpose to mention that I have given my mind to the oral submissions made by the Counsel for both parties as well as to the written submissions and the judicial authorities referred to therein.

(2)	Now let me proceed to examine the substance of the Plaintiff's application bearing the aforementioned factual background and the legal principles uppermost in my mind.

(3)	After an in-depth analysis of the totality of the affidavit evidence in this case, I now summaries my understanding of the salient facts as follows;

•	The Land in dispute is State Land/Lease situated at "Enamanu Road" Nadi, comprising an area of 13 acres, 1 rood and 4 perches (annexure VVG-2 and EYS-2). The land is leased by the Director of Lands (Lessor) to Late Mr. Kewal Ram, in April, 1973 for a term of 21 years. The lease is extended by the Director of Lands (Lessor) to Mr. Arvind Kumar and Mr. Anoj Kumar, sons of "Kewal Ram" as administrators of the estate of "Kewal Ram", on 17th August, 2000, for a period of 20 years, at a rental of $600.00 per annum.

•	It is a protected Lease under the provisions of the State Lands Act and any dealing with it requires the prior written consent of the Director of Lands (Section 13 of the State Lands Act)

•	On 19th July 2002, the Defendant has entered into a Sale and Purchase Agreement with Mr. Arvind Kumar and Mr. Anoj Kumar, as administrators of the Estate of Kewal Ram. (annexureVVG-3)

•	The Defendant has agreed to buy part of the Land in the State Lease being an area of one quarter acre for the price of $5,500.00

•	In execution of the said Sales and Purchase Agreement and pursuant to its terms and Conditions the Defendant has paid a sum of $5,500.00 to the said (vendor) Mr. Arvind Kumar and Mr. Anoj Kumar.

•	The Clause four(4) of the Sale and Purchase Agreement bestowed a right to possession upon execution of the document by the parties. This does not provide any time to apply for written consent of the Director of Lands. 

•	The Clause four(4) of the Sale and Purchase Agreement gave the Defendant immediate possession of the Land.

•	The Defendant has entered into possession of land with a licencein 2005and remained in possession relying on the Sale and Purchase Agreement.

•	The Defendant has expended money in constructing a house on the land and is occupying with his family since 2005.

•	The Director of Lands did not consent to the above transaction and had advised "Babu Singh & Associates" who are the Solicitors for the trustees of the Estate of Kewal Ram that the Defendant is a trespasser. (annexure VVG-4)

•	An application to the Director of Town and Country Planning as required under the Subdivision of Lands Act was refused. (annexureVVG-5)

•	The Plaintiff had purchased the whole of the above State Lease on 10th May 2006 from Mr. Arvind Kumar and Mr. Anoj Kumar, as administrators of the estate of Kewal Ram. The transfer was registered in its favour from the estate of "Kewal Ram". The Plaintiff is the registered proprietor of the whole of the Crown Lease. (annexureVVG-2 and EYS-2)

•	A Notice was served on the Defendant on 13th February 2014 to provide vacant possession. (annexure VVG-7)

•	The Defendant has refused to provide vacant possession and holds possession of the part of the land.

(4)	What is the scope of Order 113 of the High Court Rules, 1988?

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, except perhaps where there has been the grant of a licence for a substantial period and the licence holds over after the determination of the licence (Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593."
(Emphasis added)

 The Court in "Ralinalala v Kaicola" (2015) FJHC 66 said;

"Order 113 of the High Court Rules provides a summary procedure for possession of land, where it states that:

"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".

In view of Order 113, a person who has a legal right to claim the possession of a land could institute an action, claiming the possession of said land against a person who has entered into or remains in occupation without his licence or consent or that of any predecessor in title.

The main purpose of Order 113 is to provide a speedy and effective procedure for the owners of the lands to evict persons who have entered into and taken the occupation of the land without the owner's licence or consent. They can be defined as trespassers or illegal occupants. These trespassers or illegal occupants have sometimes been referred to as squatters. In Mcphail v Persons unknown, (1973) 3 All E.R. 394) Lord Denning has observed "the squatter" as a person who without any colour of right, enters into an unoccupied house or land and occupies it. His Lordship found that in such instances, the owner is not obliged to go to Court to regain his possession and could take the remedy into his own hands, which indeed, recommended as an unsubstantial option. Therefore, Order 113 has provided the owners a speedy and effective procedure to recover the possession instead of encouraging them to take a remedy of self-help.

The proceedings under Order 113 encompass two main limbs. The first is the onus of the Plaintiff. The Plaintiff is first required to satisfy that he has a legal right to claim the possession of the land. Once the Plaintiff satisfies the first limb, the onus will shift towards the defendant, where the Defendant has burdened with to satisfy the Court that he has a licence or consent of the owner to occupy the land."

(Emphasis added)

When reduced to its essentials, the law in relation to Order 113 as I understand from the aforesaid is this;

•	A person who has a legal right to claim the possession of a land could institute an action under Order 113 against a person who has entered into or remains in occupation without his licence or consent or that of any predecessor in title.

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.

•	To evict an occupant, the applicant must show better title than the respondent.

Applying these principles to the case before me, what do we find?

The Plaintiff purchased the land in question on 10th May 2006. The transfer was registered in its favour from the Estate of "Kewal Ram". The Plaintiff is the registered proprietor of the whole of the lease as evident from the Instrument of Title. (AnnexureEYS-2)

Therefore, I am satisfied that the Plaintiff has a legal right to claim the possession of the land, pursuant to Order 113 of the High Court Rules, 1988.

Now the onus will shift towards the Defendant, where the Defendant is burdened with to satisfy the Court that he has a licence or consent of the owner or of any predecessor of the title of the owner to occupy the land.

(5)	What is the Defendant's reason refusing to deliver vacant possession? To be more precise, the Defendant for his part in seeking to show cause against the Summons, adduced grounds in Opposition. They are;

Ground (01) Reference is made to paragraph (07) of the Defendant's Affidavit in Opposition.

Para 7. THAT as to paragraph 4 of the said affidavit I do not comment as to when the Plaintiff enquired with the Director of Lands for the said Land as this fact is only well known to him, and further I state that I had entered in an sale and purchase agreement with the Estate of Kewal Ram in the year 2002 for ¼ acre of land from the said property which the previous owner had taken money and promised to properly sub-divide for me.

Ground (02) Reference is made to paragraph (13) of the Defendant's Affidavit in Opposition.

Para 13. THAT I note the Plaintiff has obtained Consent of the Director of Lands to institute the matter against me and further state the previous owners had the intention of selling the land to me which they did and has already obtained the money from me. I am living on the said piece of land since 2005 and so I am not a trespasser on the said property.

Ground (03) Reference is made to paragraph (4.5) of the Defendant's Written Submissions.

Para 4.5 Whilst the Defendant agreed that the contract of sale bounds him and previous owner, it is relevant in this case. The Plaintiff as a new purchaser bought the said land with notice of the existence of that contract. The Plaintiff is therefore not a bona fide purchaser. The Plaintiff had notice of the existence of the contract between the defendant and the previous owner.

 Reference is made to paragraph (4.7) of the Defendant's Written Submissions.

Para 4.7 From paragraph 4 of the Plaintiff's affidavit in support sworn on 26th November 2014, it could be deduced that the Plaintiff knew or was aware of the existence of the contract of sale of ¼ land between the previous owner and the Defendant.

 Reference is made to paragraph (4.8) of the Defendant's Written Submissions.

Para 4.8 Despite knowing of the existence of the contract which we submit created a constructive trust between the previous owner and the Defendant, the Plaintiff went ahead with the transfer knowing that such would defeat the unregistered interest of the defendant.

Ground (04) Reference is made to paragraph (5.3) of the Defendant's Written Submissions.

Para 5.3 The Plaintiff was aware of this dealing after he enquired with the previous owner and the Director of Lands. Despite that the Plaintiff entered into new dealings with the previous knowing about the existence of the trust and by accepting the transfer of the land defeats the unregistered interest of the Defendant.

 Reference is made to paragraph (4.5) of the Defendant's Written Submissions.

Para 5.4 The Plaintiff is therefore not buyer without Notice and such dealings amounts to fraud and his title could be impeached.

Ground (05) Reference is made to paragraph (5.5) of the Defendant's Written Submissions.

Para 5.5 The Director of Lands was aware of the dealings between the previous owner and the defendant and the Plaintiff should not be allowed to raise illegality to avoid the consequence of the previous owners dealings as it would be unconscionable and defeats the principle of general equity.

(6)	Based on above grounds in opposition, there are seven (07) problems that concern me. As I see it, seven (07) questions lie for determination by the Court. They are;

(1)	Is the Defendant's entry and occupation of the land by virtue of Sale and Purchase Agreement executed on 19th July 2002 entered with the previous proprietors, Mr. Arvind Kumar and Mr. Anoj Kumar, as administrators of the Estate of "Kewal Ram'" a "dealing in land" within Section 13 of the Crown Lands Act?

(This relates to the first ground adduced by the Defendant)

(2)	Whether the said Sales and Purchase Agreement is in breach of Section 13 of the Crown Lands Act?

 (This also relates to the first ground adduced by the Defendant)

(3)	Is there any equitable estoppel or lien arising in the Defendant's favour on the land for the money expended on the land by the Defendant i.e. $3,500.00 being deposit of the purchase price and thereafter $1,000.00 being subdivision costs which totals $4,500.00 and the money expended in constructing a house on the land?

To be more precise, whether the Sale and Purchase Agreement is enforceable either at law or in equity to grant a legal right or interest?

(This also relates to the first ground adduced by the Defendant)

(4)	Is the occupation of the property by the Defendant for whatever length of time, a circumstance giving rise to any form of proprietary estoppel or equity?

(This relates to the second ground adduced by the Defendant)

(5)	Whether a Court of equity will impose a "constructive trust" on the Plaintiff for the benefit of the Defendant? 

To be more precise, whether the Plaintiff would, on ordinary principles, be guilty of the act of interference with existing Contractual rights if it is to evict the Defendant? (This relate to the third ground adduced by the Defendant). This relates to an argument concerning equitable interests and rights in personam notwithstanding the indefeasibility provisions of Land Transfer Act.

(6)	Whether the Plaintiff holds an indefeasible title?

(To be more precise, this relates to the Defendant's argumentthat the Plaintiff is guilty of fraud in acquiring the registered title)

(This relates to the fourth ground adduced by the Defendant)

(7)	Would it be quite unconscionable for the Director of Lands to 
Plead illegality under the State Lands Act?

(This relates to the fifth ground adduced by the Defendant)

(7)	I propose to examine the first and the second question posed at paragraph six (06) jointly.

As I understand the evidence;

•	The Land in dispute is State Land/Lease situated at "Enamanu Road" Nadi, comprising an area of 13 acres, 1 rood and 4 perches (annexure VVG-2 and EYS-2). The Land is leased by the Director of Lands (Lessor) to late Mr. Kewal Ram,in April 1973, for a term of 21 years. On 17th August 2000, the Director of Lands extended the Lease to Mr.Arvind Kumar and Mr. Anoj Kumar, sons of "Kewal Ram" as administrators of the estate of "Kewal Ram", for a period of 20 years, at a rental of $600.00 per annum.

•	It is a protected Lease under the provisions of the State Land Act and any dealing with it requires the prior written consent of the Director of Lands (Section 13 of the State Lands Act)

•	On 19th July 2002, the Defendant has entered into a Sale and Purchase Agreement with Mr. Arvind Kumar and Mr. Anoj Kumar, as administrators of the Estate of Kewal Ram. (annexureVVG-3)

•	The Defendant has agreed to buy part of the Land in the State Lease being an area of one quarter acre for the price of $5,500.00

•	In execution of the said Sales and Purchase Agreement and pursuant to its terms and Conditions the Defendant has paid a sum of $5,500.00 to the said (vendor) Mr. Arvind Kumar and Mr. Anoj Kumar.

•	The Clause 4 of the Sale and Purchase Agreement bestowed a right to possession upon execution of the document by the parties. This does not provide any time to apply for written consent of the Director of Lands. 

•	The Clause 4 of the Sale and Purchase Agreement gave the Defendant immediate possession of the Land.

•	The Defendant has entered into possession of land in 2005with a licence and remained in possession relying on the Sale and Purchase Agreement.

•	The Defendant has expended money in constructing a house on the land and is occupying with his family since 2005.

•	The Director of Lands did not consent to the above transaction and had advised "Babu Singh & Associates" who are the Solicitors for the trustees of the Estate of Kewal Ram that the Defendant is a trespasser. (annexure VVG-4)

•	An application to the Director of Town and Country Planning as required under the Subdivision of Lands Act was refused. (annexureVVG-5)

•	The Plaintiff had purchased the whole of the above State Lease on 10th May 2006 from Mr. Arvind Kumar and Mr. Anoj Kumar as administrators of the estate of Kewal Ram. The transfer was registered in its favour from the estate of "Kewal Ram". The Plaintiff is the registered proprietor of the whole of the Crown Lease. (annexureVVG-2 and EYS-2)

•	A Notice was served on the Defendant on 13th February 2014 to provide vacant possession. (annexure VVG-7)

•	The Defendant has refused to provide vacant possession and holds possession of the part of the land.

The land in question in this case is Crown Land within the meaning of Crown Lands Act. As such its control is vested with the Director of Lands. Therefore, it is necessary to examine Section 13 of the Crown Lands Act. 

I should quote Section 13 which 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 affected without such consent shall be null and void." 

Reading, as bestas I can between the lines of theCrown Lands Act, it seems to me, that Section 13 (1) prohibits any dealing in land which is comprised in Crown Lease without the consent of the Director of Lands.

 Moreover, unlawful occupation of Crown Land is an offense under Section 32 and 40 of the Crown Lands Act.

 On a strict reading of Section 13 (1) of the Crown Lands Act, suggest to my mind, that the Act has a discernible protective or public policy purpose, namely the prevention in the public interest, of the uncontrolled alienation of crown land. 

 I do not think I need to read anymore!

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 affected 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 obtained. It is further stated that any sale or transfer or other alienation or any dealing affected 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 affected 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 affected in respect of a leasehold Government land."
(Emphasis added)

 In Raliwalala v Kaicola (2015) FJHC 66, a similar situation arose involving Native Land whereby the Defendants were trying to justify its position of occupation by virtue of an agreement with the previous owner. The court in that instance stated:

"The main issue to be determined in this application is that whether such an arrangement entered between the previous tenant and the Defendant constitutes a consent or licence to occupy the land. Indeed it is an arrangement entered between the tenant and a third party to settle loan arrears with the bank. In order to legitimize such a transfer of property by the tenant, he is required to obtain the consent of the Native Land Trust Board which has not been obtained. In the meantime, the previous tenant deposed in his annexed affidavit that he was forcefully evicted from the land and the Defendant was demanding the money back, which he paid to the bank. Under such circumstances, it appears that the dispute between the previous tenant and the Defendant does not relate to the occupation of the land. The Defendant may have a claim "in personam", but not for the possession of the land. Accordingly, it is my opinion that the Defendants have not obtained consent or a licence to occupy or remain in occupation of this land.

Returning to the present case, on the question as to whether the Defendant's entry and occupation of the land by virtue of Sale and Purchase Agreement can be a "dealing" within the meaning of Section 13 (1) of the Crown Lands Act, if any authority is required, I need only refer to the rule of law enunciated by the Privy Council in Chalmers v Pardoe (1963) 3 A.E.R. 552, where a somewhat relevant situation was considered.

In that case, Mr.Pardoe was the holder of a lease of Native Land. The Native land is subject to Section 12 (1) of the Native Land Trust Act which is in the exact same terms as Section 13 of the Crown Lands Act. Section 12 (1) provides;

"Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee 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 dealing affected without such consent shall be null and void …."

The leading case upon the interpretation of Section 12 of the Native Land Trust Act is Chalmers v Pardoe (supra). Mr. Pardoe was the holder of a lease of Native Land. By a "friendly arrangement" with Mr Pardoe, Mr Chalmers built a house on a part of the land and entered into possession. The consent of the Native Land Trust Board was never obtained. The rule of law enunciated by the Privy Council was that the transaction amounted to an agreement for a lease or sublease but even regarding it as a licence to occupy coupled with possession and that "dealing" with the land took place.

 As to whether the "friendly arrangement" amounted to "dealing" with native land within the meaning of s.12 of the Ordinance, Sir Terence Donovan, in delivering the speech of the Privy Council in Chalmers v Pardoe (supra), explained it as follows:

"Repeating this term, but without necessarily adopting it, the Court of Appeal held, as their lordships have already indicated, that the least effect which could be given to the "friendly arrangement" was that of a licence to occupy coupled with possession. Their lordships think the matter might have been put higher. "I gave him the land for nothing" said MrPardoe. Again, "He could get anything – a sublease or a surrender, which was perfectly correct…" And so on. In their lordships view an agreement for a lease or sublease in Mr Chalmers' favour could reasonably be inferred from Pardoe's evidence.

Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as Mr Chalmers and MrPardoe well knew, of erecting a dwelling-house and necessary buildings, it seems to their lordships that, when this purpose was carried into effect, a "dealing" with the land took place. On this point their lordships are in accord with the Court of Appeal: and since the prior consent of the Board was not obtained, it follows that under the terms of s.12 of the ordinance, cap 104, this dealing with the land was unlawful. It is true that in Harman Singh and Backshish Singh v Bawa Singh [1958-59] FLR 31, the Court of Appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s.12, for there must necessarily be some prior arrangement in all such cases. Otherwise there would be nothing for which to seek the Board's consent. In the present case, however, there was not merely agreement, but, on one side, full performance: and the Board found itself with six more buildings on the land without having the opportunity of considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s.12 was designed to prevent. True it is that, confronted with the new buildings, the Board as lessor extracted additional rent from MrPardoe: but whatever effect this might have on the remedies the Board would otherwise have against MrPardoe under the lease, it cannot make lawful that which the ordinance declares to be unlawful."

In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;

Henry J.P. in Phalad v Sukh Raj (1978) 24 FLR 170 said;

"The cases already cited show that the Courts have held that the mere making of a contract is not necessarily prohibited by section 12. It is the effect of the contract which must be examined to see whether there has been a breach of section 12. The question then is whether, upon the true construction of the said agreement the subsequent acts of appellant, done in pursuance of the agreement, "alienate or deal with the land, whether by sale transfer or sublease or in any other manner whatsoever" without the prior consent of the Board had or obtained. The use of the term "in any other manner whatsoever" gives a wide meaning to the prohibited acts. For myself I have no doubt but that the true construction of the said agreement and the said agreement and the substantial implementation of such an agreement for sale and purchase, under which possession is completely parted with to the purchaser and immediate mutual rights and liabilities are created in respect of such exclusive possession, is a breach of section 12 if done before the consent is obtained."

The words "alienate" and "deal with" as elaborated in section 12, are absolute and do not permit conditional acts in contravention. If before consent, acts are done pending the granting of consent, which come within the prohibited transactions, then the section has been breached and later consent cannot make lawful that which was earlier unlawful and null and void. This does not cut across the cases already cited which deal with the formation of the contract as contrasted with an immediately operative agreement and substantive acts in performance thereof."

Gould V.P in Jai Kissun Singh v Sumintra, 16 FLR p 165 said;

". . . .it is not necessary that the agreement between the parties should have progressed to a stage at which formal documents of lease or assignment has been executed before the transaction became a dealing requiring prior consent. That, having regard to the objects of the section, is only common sense. Otherwise, a purchaser under agreement could remain indefinitely in possession and control, exercising the rights of full ownership and even protecting himself by caveat. If an agreement is signed and held inoperative and inchoate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where then, is the line to be drawn? I think on a strict reading of section 12 in the light of its object, an agreement for sale of native land would become void under the section as soon as it was implemented in any way touching the land, without the consent having been at least applied for … … …"

 (Emphasis Added)

In Chalmers v Pardoe (supra) said moreover,

"But even treating the matter simply as one where a licence to occupy, coupled with possession was given, all for the purpose, as Chalmers and Pardoe well knew, of erecting a dwelling house and accessory buildings it seems to their Lordships that when this purpose was carried into effect a "dealing" with the land took place."

Returning to the present case, acting on the strength of the authority in the aforementioned cases, I hold that the Defendant's entry and occupation of the land by virtue of Sale and Purchase Agreement is a "dealing in land" within Section 13 of the Crown Lands Act and the said Sale and Purchase Agreement is in breach of Section 13 of the Crown Lands Act, due to the following reasons;

•	The Clause four (04) of the Sale and Purchase Agreement bestowed a right to possession upon execution of the document by the parties. This does not provide any time to apply for written consent of the Director of Lands.

•	The Clause four (04) of the Sale and Purchase Agreement gave the Defendant immediate possession of the Land.

•	The Defendant was let into the possession of the property by virtue of the Sale and Purchase Agreement entered between the Defendant and Mr.Arvind Kumar and Mr.Anoj Kumar, as administrators of the Estate of Kewal Ram. (The Plaintiff's predecessor in title)

•	The Saleand Purchase Agreement is prima facie illegal due to the absence of consent of the Director of Lands.

•	The letter annexed as "VVG-4" is evidence of the fact that the Defendant was regarded as an illegal occupant and Trespasser by the Director of Lands.

•	The Sale and Purchase agreement was implemented to the fullest by touching the land i.e. by letting the Defendant into possession of the land and by letting him to construct a house on the land without the written consent of the Director of Lands.

Therefore, dealing with the land took place without the written consent of the Director of Lands and the dealing is illegal and void by Section 13 of the Crown Lands Act.

Given the above, I am constrained to answer the first and second question posed at paragraph six(06) in the affirmative. Therefore the first ground fails.

(8)	Let me examine the third question posed at paragraph six (06);

The Defendant contends that there is an equity arising out of the expenditure of money on land. The Defendant says that the Plaintiff predecessor in title had obtained $5,500.00 (selling price together with subdivision cost) and encouraged him to build a house on the land.Therefore, he expended money in constructing a house on the land. He simplistically submits that he spent the money in the expectation and belief that he would be allowed to remain there for his life time or for long as he wished.

 The submission requires some examination of the law regarding "Promissory or equitable estoppel."

Spry in his "Principles of Equitable Remedies" 4th Edition 1990 page 179 sets out the basic principles of equitable proprietary estoppel as follows:

•	The Plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendants or expected that a particular legal relationship would exist between them and, in the latter case that the defendant would not be free to withdraw from the expected legal relationship.

•	The Plaintiff has induced the defendant to adopt that assumption or expectation.

•	The Plaintiff acts or abstains from acting in reliance on the assumption or expectation.

•	The defendant knew or intended him to do so.

•	The Plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.

•	The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

 Lord Kingsdown in the case of Ramsden v Dyson (1865) L.R. 1 H.L. 129 said at p. 140;

"If a man under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing under the expectation created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation with the knowledge of the landlord and without any objections by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation."

 Also at p. 140 Lord Cransworth L.C. said:

"If a stranger begins to build on any land supposing it to be his own and I perceiving his mistake, abstain setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land in which he had expended money on the supposition that the land was his own."

 Promissory or equitable estoppel is described in Halsburys Laws of England, Fourth Edition, Volume 16, at paragraph 1514:

"When one party has, by his words or conduct, made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced."

 Snell's Equity (13th Ed), at para 39 – 12 states that:

"Proprietary estoppel is one of the qualifications to the general rule that a person who spends money or improving the property of another has no claim to reimbursement or to any proprietary interest in the property".

Proprietary estoppel, unlike promissory estoppel, is permanent in its effect. It is capable even of conferring a right of action. For it to apply there must exist essential elements or conditions. The Court, in Denny v. Jensen [1977] NZLR 635 identified four conditions namely, as p.638.

"There must be expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity".

 Megarry J in In re Vendervell's Trust (No. 2) [1974] CH 269 describes the essential elements this way, at p. 301,

"… the person to be estopped (I shall call him O, to represent the owner of the property in question), must know not merely that the person doing the acts (which I shall call) was incurring the expenditure in the mistaken belief that A already owned or would obtain a sufficient interest in the property to justify the expenditure, but also that he, O, was entitled to object to the expenditure. Knowing this, O nevertheless stood by without enlightening A. The equity is based on unconscionable behaviour by O; it must be shown by strong and cogent evidence that he knew of A's mistake, and nevertheless dishonestly remained wilfully passive in order to profit by the mistake".

 InDenny v. Jensen [1977] 1 NZLR 635 at 639, Justice White very aptly summarised the doctrine as follows:-

"In Snell's Principles of Equity (27 Ed) 565 it is stated that proprietary estoppel is" … capable of operating positively so far as to confer a right of action". It is "one of the qualifications" to the general rule that a person who spends money on improving the property of another has no claim to reimbursement or to any proprietary interest in that property. In Plimmer v Willington City Corporation (1884) 9 App Cas 699; NZPCC 250 it was stated by the Privy Council that"… the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated" (ibid, 713, 29). After referring to the cases, including Ramsden v Dyson (1866) LR 1 HL 129, the opinion of the Privy Council continued, " In fact, the court must look at the circumstances in each case to decide in what way the equity can be satisfied" (9 App Cas 699), 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1 WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965]2 QB 29; [1965] 1 All ER 446. There a son had built on land owned by his father who died leaving his estate to others. Lord Denning MR, with whom Danckwerts and Salon LJJ agreed, said that all that was necessary:

"… is that the licencee should, at the request or with the encouragement of the landlord, have spent the money in expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do".(ibid, 37, 449).
 (Emphasis Added

 Hon. Mr Justice Deepthi Amaratunga observed in Vishwa Nand v Rajendra Kumar (Civil Action HBC 271 of 2012) that;

"The general rule, however is that "liabilities are not to be forced upon people behind their backs" and four conditions must be satisfied before proprietary estoppel applies. There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity."

 (Emphasis Added)

 Hon. Madam Justice AnjalaWati in Wilfred Thomas Peter v HiraLal and Farasiko (Labasa HBC 40 of 2009) held that;

"I must analyse whether the four conditions have been met for the defence of proprietary estoppel to apply. The conditions are:

 i. An expenditure

 ii. A mistaken belief

 iii. Conscious silence on the part of the owner of the land

 iv. No bar to the equity

(9) In respect of Defendant's claim for an equitable charge or lien over the land for the money expended on the property, the defendant heavily relied on the decisions in "Wilfred Thomas Peter v Hira Lal and Farasiko" (Labasa HBC 40 of 2009), "Ali v Hussain" (2013) FJHC 685 and NLTB v Subramani (2010) FJCA 9. I have considered the three judicial decisions. In "Ali v Hussain and NLTB v Subramani" the NLTB has played an active part in the transfer of the property and has consented to the transfer. But in the present case, the Director of Lands has never consented to the said "Sale and Purchase Agreement". The Director of Lands has played no part in the dealing. The letter annexed "VVG-4" is evidence of the fact that the Defendant was regarded as an illegal occupant and trespasser by the Director of Lands. Moreover, the Director of Lands had actually taken action as can be seen from the letter to "Babu Singh & Associates" marked as VVG-4. By a copy of the letter the Director of Lands had informed the District Office and the Police Department regarding the Defendant's illegal occupation. In "Wilfred Thomas Peter v Hira Laland Farasiko" (supra) prior consent has been sought from the District Officer and the Minister of Lands before the subdivision, so Section 13 (1) of the Crown Lands Act has been fulfilled. Therefore, I do not think the said three decisions are of assistance to the Defendant because they are clearly distinguishable from the present case.

Therefore, in my view the equity cannot be raised. The Defendant gets no equity by reason of his expenditure on land.

Be that as it may, the execution of the written Sale and Purchase Agreement and the subsequent occupation and possession of the land by constructing a house on the land lacked the consent of the Director of Lands. Therefore, the Agreement is implicitly prohibited by Section 13 (1) of the Crown Lands Act.Thus the provisions of Section 13 of the Crown Lands Act have been breached. The Agreement is null and void ab initio.

 The doctrine of estoppel cannot be invoked to render valid, a transaction which the legislature has enacted to be invalid. [Chand v Prakash, 2011, FJHC 640, HB169. 2010]

Therefore, the Sale and Purchase agreement is not enforceable either at law or in equity to grant a legal right to the Defendant.

The Defendant gets no equity by reason of his expenditure on the land due to the illegality in the Contract.

His Lordship Gates considered somewhat a similar situation in "Indar Prasad andBidyaWati v Pusup Chand" (2001) 1 FLR 164 and said;

"Section 13 of the State Lands Act would appear to be a complete bar to any equitable estoppel arising in the Defendant's favour."

 "Estoppel against a statute" is discussed as follows in Halsbury's, Laws of England, 4th Edition, Volume 16, at paragraph 1515, 

"The doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute, or to oust the court's statutory jurisdiction under an enactment which precludes the parties contracting out of its provisions. Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of the duty cannot be estopped be prevented from exercising his statutory powers. A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the court has a statutory duty to inquire into the truth of a petition."

 In Chalmers v Paradoe(supra) the court held;

"The friendly arrangement entered into between the respondent and the appellant amounted to granting the appellant permission to treat a certain portion of the land comprised in the lease as if the appellant were in fact the lessee. Under this arrangement the respondent gave the appellant possession of part of the land. He granted to the appellant permission to enjoy exclusive occupation of that portion of the land, and to erect such buildings thereon as he wished. Such an arrangement could we think be considered an alienation, as was argued in Kuppan v Unni. Whether or not it was an alienation it can, we think, hardly be contended that it did not amount to a dealing in land with the meaning of section 12. It is true that the 'friendly arrangement' did not amount to a formal sublease of a portion of the land or to a formal transfer of the lessee's interest in part of the land comprised in the lease. The least possible legal effect which in our opinion could be given to this arrangement would be to describe it as a licence to occupy coupled with possession, granted by the lessee to the appellant. In our opinion, the granting of such a licence and possession constitutes dealing with the land so as to come within the provisions of section 12, Ca. 104. The consent of the Native Land Trust Board was admittedly not obtained prior to this dealing, which thus becomes unlawful and acquires all the attributes of illegality. An equitable chargecannot be brought into being by an unlawful transaction and the appellant's claim to such a charge must therefore fail."

On the strength of the authority in the above cases, I think it is quite possible to say that the mandatory requirement of Section 13 of the Crown Lands Act and the legal consequences that flow from non-compliance defeat the Defendant's claim for an equitable charge or lien over the land for the sum expended on the property. 

Therefore, I am constrained to answer the third question earlier posed at paragraph six (06) negatively. Therefore, the first ground fails.

 In the context of the present case, I am mindful of the rule of law enunciated in the following decisions;

 In MISTRY AMAR SINGH v KULUBYA 1963 3 AER p.499, a Privy Council case, it was held that a registered owner of the 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.

 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." 

(10) Let me now examine the fourth question posed at paragraph six (06)

The point raised by the Defendant is that he has been living in the land since 2005 and he is not a trespasser.

I ask myself, is this, a circumstance capable of giving rise to any form of "proprietary estoppel"?

 The answer to this question is obviously "No"

 I echo the words of Fatiaki J in Wati v Raji (1996) FJHC 105;

"Turning finally to the question of 'proprietary estoppel'.Suffice it to say that the mere occupation of a piece of land on a yearly tenancy for whatever length of time, is not a circumstance capable of giving rise to any form of 'estoppel', proprietary or otherwise, nor in my view is any 'equity' created hereby which the court would protect.
 (Emphasis added)

On the strength of the authority in the above case, I am constrained to answer the fourth question earlier posed at paragraph six(06) negatively. Therefore, the second ground fails.

(11)	Now let me proceed to examine the fifth question raised at paragraph six (06).

The Defendant contends that; (Reference is made to the Defendant's written submissions)

Para 5.1 We respectfully submit that the Defendant entered into the said land through the Sale and Purchase Agreement with the previous owner who also received money from the Defendant.

5.2 Entering into such agreement created a trust which the previous owner held on constructive trust for the Defendant.

5.3 The Plaintiff was aware of this dealing after he enquired with the previous owner and the Director of Lands. Despite that the Plaintiff entered into new dealings with the previous knowing about the existence of the trust and by accepting the transfer of the land defeats the unregistered interest of the Defendant.

5.4 The Plaintiff is therefore not buyer without Notice and such dealings amounts to fraud and his title could be impeached.

For this argument, heavy reliance was placed on "Lee v Mital" (1965) FJSC 1 and 'Ram Nandan v Shiu Datt", Civil Action No. 29 of 1982. I had a close look at "Lee v Mital" and "Ram Nandan v ShiuDatt", Civil Action No. 29 of 1982. In my view, those decisions are of no assistance to the Defendant since "Ram Nandan v Shiu Datt", Civil Action No. 29 of 1982 would be the position in law, when dealing with freehold or other leasehold interests on land not caught by Section 12 of the Native Land Trust Act or Section 13 of the State Land Act. In "Lee v Mital", the land was Native Land and the written consent of the Native Land Trust Board had been obtained to the Sale. Whereas, in the case before me, the Director of Lands did not consent to the Sale and had advised "Babu Singh & Associates" who are the Solicitors for the Trustees of the Estate of "Kewal Ram" that the Defendant is a trespasser. (Annexure VVG-4). Therefore, the Defendant cannot derive any assistance from "Lee v Mital".

The two cases relied on by the Defendant has no application to the case before me even by any stretch of imagination. 

At this stage I ask myself, "What is the nature of the Defendant's interest in the land?"

Is it such as to avail him against the Plaintiff (Purchaser) who took with full notice of it?

Did the Plaintiff take the land on "constructive trust" to permit the Defendant to stay there for his life time or for long as he wished?

What is meant by the phrase "Constructive Trust"?

A "Constructive Trust" is a trust imposed by law. A Constructive Trust arises by operation of law. A Constructive Trust is an equitable remedy and they are discretionary in nature. (See; Re Polly Peck International PLC (in administration) v MacIntosh (1998) 3 All E.R. 512 and 825.

In a broad sense, the Constructive Trust is both an institution and a remedy of the law of equity. Please see; Muschinski v Dadds (1985) 160 C.L.R. 583.

Constructive Trusts are not always subject to the requirement of certainty of subject matter. In "Giumelli v Giumelli (1999) 196 C.L.R. 101 at 112 Gleeson C.J., McHugh, Gummon and Callinan JJ, found that some Constructive Trusts create or recognize no proprietary interest but rather impose a personal liability to account for losses sustained by constructive beneficiaries. In that situation there is no identifiable Trust property.

During the 1970's the United Kingdom's Court of Appeal, led by Lord Denning MR, adapted a free-ranging remedial basis for constructive trusts and came to the view that a constructive trust is "imposed by law whenever justice and conscience require it"; Hussey v Palmer (1972) 3 All E.R. 744.

Therefore, the law as I understand is this;

•	As a species of Trust, Constructive Trusts inherently create equitable proprietary interests in favour of identifiable beneficiaries.

•	Constructive Trust is a liberal process, founded upon large principles of equity.

Applying those principles to the case before me, what do we find?

The Sale and Purchase Agreement entered and executed between the Defendant and the Plaintiff's predecessor in title in relation to the protected lease is illegal due to want of consent from the Director of Lands. Therefore, the agreement is incapable of enforcement. The agreement is void for want of consent from Director of Lands.

The Defendant's entry and occupation of the land by virtue of Sale and Purchase Agreement is illegal and is in breach of Section 13 of the State Lands Act.

The letter annexed on "VVG-4" is evidence of the fact that the Defendant was regarded as an illegal occupant and trespasser by the Director of Lands. The Director of Lands had actually taken action as can be seen from the letter to "Babu Singh & Associates" marked as "VVG-4". By a copy of the letter, the Director of Lands had informed the District Office and the Police Department.

I hold that no Constructive Trust can be created in relation to a protected lease without the prior written consent of the Director of Lands.

Breach of Section 13 of the State Lands Act is a complete bar to any equitable estoppel arising in the Defendant's favour. (Please see; Indra Prasad and BidyaWati v Pushp Chand (2001) 1 F.L.R. 164).

It is quite possible to say that the mandatory requirement of Section 13 of the State Lands Act and the legal consequences that flow from non-compliance defeats the Defendant's claim for an equitable charge or Constructive Trust over the land. The situation in the case before me does not give rise to a Constructive Trust since the Defendant does not have an equitable interest in the land due to breach of Section 13 (1) of State Lands Act.

I am clearly of the opinion that a Court of equity will not impose on the Plaintiff (Purchaser) a Constructive Trust in favour of the Defendant, since the Defendant's entry and occupation of the land is illegal and is in breach of Section 13 of the State Lands Act.The Defendant has no equity against the Plaintiff. The Plaintiff is not bound by the Notice of any illegal Agreement affecting the State Land or an agreement which is not enforceable either at law or in equity granting a legal right. There is no valid contract binding the Plaintiff. Therefore, no Constructive Trust could be imposed on the Plaintiff in favour of the Defendant.

In the circumstances, i have to say, with the greatest respect to the Counsel for the Defendant and with no pleasure that I totally disagree with his argument. I must confirm that I am not aware of any authority for such an argument, and I do not think that his argument can be supported on principle. Anything more shadowy, anything more unsatisfactory, anything more unlikely to produce persuasion or conviction on the mind of the Court, I can scarcely imagine.

The imposing of a constructive trust is entirely in accord with the precepts of equity. As Cardoz J. once put it:

"A constructive trust is the formula through which the conscience of equity finds expression." See Beauty v Gugggenheim Exploration Co. (1919) 225 N.Y. 380, 386; or, as Lord Diplock put it quite recently in Gissing v Gissing (1971) A.C. 886, 905, a constructive trust is created "whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestuique trust a beneficial interest in the land acquires."

Therefore, I am constrained to answer the fifth question earlier posed at paragraph (06) negatively. (Therefore, the third ground fails)

(12)	Let me now proceed to the issue of fraud (The sixth question posed at Para 6)

The Defendant contends that; (Reference is made to the Defendant's written submissions)

Para 5.3 The Plaintiff was aware of this dealing after he enquired with the previous owner and the Director of Lands. Despite that the Plaintiff entered into new dealings with the previous knowing about the existence of the trust and by accepting the transfer of the land defeats the unregistered interest of the Defendant.

5.4 The Plaintiff is therefore not buyer without Notice and such dealings amounts to fraud and his title could be impeached.

Sections 38 and 39 (1) of the Land Transfer Act, can be regarded as the basis of the concept of "indefeasibility of title" of a registered proprietor. Under Torrens System of land law the registration is everything and only exception is fraud.

I should quote Section 38 and 39 (1) of the Land Transfer Act, which provides;

Section 38 provides;

Registered instrument to be conclusive evidence of title

"38. No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason or on account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title. 

Section 39 (1) provides;

"39-(1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject to the provisions of this Act, or of any estate or interest therein, shall except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium if the register, constituted by the instrument of title thereto, but absolutely free from all other encumbrances whatsoever except…

I am conscious of the fact that section 40 of the Land Transfer Act seeks to dispel Notice of a Trust or unregistered interest in existence in the following manner;

40.Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud." (Underliningis mine).

With regard to the concept of "indefeasibility of title of a registered proprietor", the following passage from the case of "EngMee Young and Others (1980) Ac 331 is apt and I adapt it here;

"The Torrens system of land registration and conveyanncing as applied in Malaya by the National Land Code has as one of its principle objects to give certainty to land and registrable interests in land. Since the instant case is concerned with Title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By s.340 the title of any person to land of which he is registered as proprietor is indefeasible except in cases of fraud, forgery or illegality and even in such cases a bond fide purchase for value can safely deal with the registered proprietor and will acquire from him on indefensible registered title."

In "Prasad v Mohammed" (2005) FJHC 124; HBC 0272J.1999L (03.06.2005) His Lordship Gates,succinctly stated the principles in relation to fraud and indefeasibility of title as follows;

[13] In Fiji under the Torrens system of land registration, the register is everything: Subramani & Ano v Dharam Sheela& 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Register of Titles under the Land Transfer Act [see sections 39, 40, 41, and 42]: Fels v Knowles [1906] 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

"It is to be noticed that each of these sections except the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor of his agent: Assets Co Ltd v Mere Roihi.

It is these sections which, together with those next referred to, confer upon the registered proprietor what has come to be called "indefeasibility of title. "The expression, not used in the Act itself, is a convenient description of the immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. This conception is central in the system of registration."

[14] Actual fraud or moral turpitude must therefore be sown on the part of the plaintiff as registered proprietor or of his agents Wicks v. Bennet [1921] 30 CLR 80; Butler v Fairclough [1917] HCA 9; [1917] 23 CLR 78 at p.97
 
 (Emphasis Added)

In the case of SHAH –v- FIFTA (2004) FJHC 299, HBC 03292J, 2003S (23rd June 2004) the Court took into consideration Sections 38, 39 and 40 of the Land Transfer Act Cap 131. Under Section 38 of the Lands Transfer Act Cap 131 it states that;

 "No instrument of title registered under the provisions of this Act shall be impeached or defeasible by reason of or an account of any informality or in any application or document or in any proceedings previous to the registration of the instrument of title".

Pathik J in this case; SHAH –v- FIFITA(supra)emphasised on section 40 of the Land Transfer Act Cap 131 as follows:

"Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rules of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud".

Fraud for the purpose of the Land Transfer Act has been defined by the Privy Council in Assets Company Ltd v Mere Roihi [1905] AC 176 at p.210 where it was said:

".... by fraud in these Acts is meant actual fraud, i.e. dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Lands Act, must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shown that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud may be properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty or fraud if he honestly believes it to be a genuine document which can be properly acted upon."

Fraud: Sufficiency of evidence;

In Sigatoka Builders Ltd v Pushpa Ram &Ano. (Unreported) Lautoka High Court Civil Action No. HBC 182.01L, 22 April 2002 the Court held in relation to "Fraud: sufficiency of evidence";

"Though evidence of fraud and collusion is often difficult to obtain, the evidence here fails a good way short of a standard requiring the court's further investigation. In Darshan Singh v Puran Singh [1987] 33 Fiji LR 63 at p.67 it was said:

"There must, in our view, be some evidence in support of the allegation indicating the need for fuller investigation which would make Section 169 procedure unsatisfactory. In the present case the appellant merely asserted that he had paid the money for the purchase of the property. This was denied by both PrasinKuar and the respondent. There was nothing whatsoever before the learned judge to suggest the existence of any evidence, documentary or oral, that might possibly assist the appellant in treating the case as falling within the scope of Section 169 of the Land Transfer Act and making an order for possession in favour of the respondent."

In that case it was also held that a bare allegation of fraud did not amount by itself to a complicated question of fact, making the summary procedure of Section 169 in appropriate see too Ram Devi v SatyaNand Sharma &Anor.

[1985] 31 Fiji LR 130 at p.135A. A threshold of evidence must be reached by the Defendant before the Plaintiff can be denied his summary remedy. In Wallingford v Mutual Society[1880] 5 AC 685 at p. 697 Lord Selbourne LC said:

"With regards to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon; in a manner which would enable any Court to understand what it was that was alleged to be fraudulent."
 (Emphasis Added)

It is clear from the above mentioned judicial decisions that a bare allegation of fraud does not amount by itself to a complicated question of fact, making the summary procedure of Section 169 inappropriate.

Therefore, in the "Torrens System" registered interests can be set aside if they have been procured by fraud, where fraud refers to active fraud, personal dishonesty or moral turpitude.

The well-known case of "Frazel v Walker" (1967) 1 A.C. 569 held that apart from fraud, or from errors of misdescreption which can be rectified, the registered proprietor holds his title immune from attack by all the word, but claims in personam will still subsist.

In Suttan v O'Kane 1973 2 N.Z.L.R. 204;Both the leading Judgments contain lengthy reviews of earlier cases of fraud in respect of a person who procures himself to be registered proprietor in cases where he then knows, or later becomes aware, of an unregistered interest.

Richmond J. and Turner P. were in agreement that a person who knows of another's interest and procures registration which cheats the other of that interest is guilty of fraud and his title can be impeached:

"It is well settled that knowledge of a breach of trust or of the wrongful disregard and destruction of some adverse unregistered interest does itself amount to fraud. In Locher v Howlett it is said by Richmond J: 'It may be considered as the settled construction of this enactment that a purchaser is not affected by knowledge of the mere existence of a trust or unregistered interest, but that he is affected by knowledge that the trust is being broken, or that the owner of the unregistered interest is being improperly deprived of it by the transfer under which the purchaser himself is taking'.."

per Salmod J. in Waimiha Sawmilling Co. Ltd. v. Waione Timber Ltd 1923 NZLR 1137 at 1173 – N.Z. Court of Appeal, affirmed in the Privy Council 1926 A.C. 101.

 A few quotations from authorities relied on by the Lordships are relevant;

"If the defendant acquired the title, said Prendergast C.J. in Merrie v McKay (1897) 16 NZLR 124, "Intending to carry out the agreement with the Plaintiff, there was no fraud then; the fraud is in now repudiating the agreement, and in endeavoring to make use of the position he has obtained to deprive the Plaintiff of his rights, under the agreement. If the Defendant acquired his registered title with a view to depriving the Plaintiff of those rights, then the fraud was in acquiring the registered the title. Whichever view is accepted, he must be held to hold the land subject to the Plaintiff's rights under the agreement, and must perform thecontract entered into by the Plaintiff's vendor'

Merrie v McKay was cited with approval by Salmond J in Wellington City Corporation v Public Trustee 1921 NZLR 423 at 433. There Salmond J. said;

"It is true that mere knowledge that a trust or other unregistered interest is in existence it not of itself to be imputed as fraud. A purchaser may buy land with full knowledge that it is affected by a trust, and the sale may be a breach of trust on the part of the seller, but the purchaser has the protection of s. 197 unless he knew or suspected that the transaction was a breach of trust. Fraud in such a case consists in being party to a transfer which is known or suspected to be a violation of the equitable rights of other persons. Where, however, the transfer is not itself a violation of any such rights, but the title acquired is known by the purchaser to be subject to some equitable encumbrance, the fraud consists in the claim to hold the land for an unencumbered estate in willful disregard of the rights to which it is known to be subject. Thus in Thompson v. Finlay it was held that a purchaser of land breached the Land Transfer Act who takes with actual notice of a contract by the seller to grant a lease to a third person is bound by that contract. Willaims J. says "If there is a valid contract affecting an estate, and the interest is sold expressly subject to that contract, it would be a distinct moral fraud in the purchaser to repudiate the contract, and the Act does not protect moral fraud". Specific performance of the contract to lease was decreed against the purchaser accordingly."

For a similar decision, please see the decision by Prendergast, C.J. in 

•	Finnovan v Weir
5 N.Z, S.C. 280 p.

•	Merrci v McKay
16 N.Z, L.R. 124 p

As I understand the law, the "fraud" in acquiring the registered title is this;

"A purchaser is not affected by knowledge of the mere existence of a Trust or unregistered interest, but that he is affected by knowledge that the trust is being broken, or that the owner of the unregistered interest is being improperly deprived of it by the transfer under which the purchaser himself is taking."

The situation in the case before me is completely different.

As I said earlier, the Defendant in the case before me has no equitable interest and legal interest in the land due to breach of section 13 of the State Lands Act. Therefore the Courts of equity will not impose a Constructive Trust on the Plaintiff for the benefit of the Defendant.

The Plaintiff obtained registration on 10th August 2015 and its title is not subject to an equitable claim or encumbrance, because at the time of registration there was no any legal agreement affecting the State Land or an agreement which is enforceable either at law or in equity. There was no valid Contract/Agreement binding the Plaintiff,because the Defendant did not acquire legal interest or equity under the Sale and Purchase Agreement due to breach of Section 13 of the Crown Lands Act.

 A person who knows of another's legal interest and procures registration which cheats the other of that legal interest is guilty of fraud and his title can be impeached.

I have no doubt personally and I am clearly of the opinion that the Plaintiff is not guilty of fraud and its title cannot be impeached because;

•	The Defendant has no equitable or legal interest in the land due to breach of Section 13 (1) of the State Lands Act.

•	The Defendant did not acquire legal interest or equity under the Agreement due to its illegality.

•	The Plaintiff's mere knowledge that there isan Agreement which is not enforceable either at law or in equity to grant a legal right is in existence, is not of itself to be imputed as fraud.

•	The Plaintiff's registration of the transfer is not a violation of some equitable encumbrances, legal interest or valid legal contract of some other party.

Therefore, I am constrained to answer the sixth question earlier posed at paragraph six (6) in the affirmative. Therefore, the fourth ground fails.

(13)	Now, let me proceed to examine the seventh question earlier posed at paragraph six (6). The Defendant contends that;

Reference is made to paragraph (5.5) of the Defendant's Written Submissions.

Para 5.5 The Director of Lands was aware of the dealings between the previous owner and the defendant and the Plaintiff should not be allowed to raise illegality to avoid the consequence of the previous owners dealings as it would be unconscionable and defeats the principle of general equity.

 The defendant heavily relied on the decisions in "Wilfred Thomas Peter v HiraLal and Farasiko" (Labasa HBC 40 of 2009), "Ali v Hussain" (2013) FJHC 685 and NLTB v Subramani (2010) FJCA 9. I have considered the three judicial decisions. In "Ali v Hussain and NLTB v Subramani" the NLTB has played an active part in the transfer of the property and has consented to the transfer. But in the present case, the Director of Lands has never consented to the said "Sale and Purchase Agreement". The Director of Lands has played no part in the dealing. The letter annexed "VVG-4" is evidence of the fact that the Defendant was regarded as an illegal occupant and trespasser by the Director of Lands. Moreover, the Director of Lands had actually taken action as can be seen from the letter to "Babu Singh & Associates" marked as VVG-4. By a copy of the letter the Director of Lands had informed the District Office and the Police Department regarding the Defendant's illegal occupation. In "Wilfred Thomas Peter v Hira Lal and Farasiko" (supra) prior consent has been sought from the District Officer and the Minister of Lands before the subdivision, so Section 13 (1) of the Crown Lands Act has been fulfilled. Therefore, I do not think the said three decisions are of assistance to the Defendant because they are clearly distinguishable from the present case.

Therefore, I am constraint to answer the seventh question earlier posed at paragraph six (06) negatively.

Therefore, the fifth and the final ground adduced by the Plaintiff fail.

(14)	Lastly, Defendant contends that it was the responsibility of the Plaintiff's predecessor in title to obtain the consent of Director of Lands. I must confess that I remain utterly unimpressed by the Defendant's effort. I am in sympathy with the Defendant's proposition.

Be that as it may, I desire to emphasise that it was competent for the Defendant to apply for consent and legitimise his occupation. It was wrong to say that it is the "sole responsibility" of the Plaintiff's predecessor in title to obtain consent from the Director of Landsregarding "dealing" in State Land.

 The view that I have expressed is in accordance with the sentiments expressed by Marsack J in D.B. Watie [overseas] Ltd v Sidney Leslie Wallath", 18 FLR 141, FCA,. Marsack J said;

 ". . . . that it was competent for the respondent himself to apply for consent. . The primary responsibility for applying for the Board's consent undoubtedly rests on the vendor. But, as I see it, there is no definite rule that in no circumstances is the Board entitled to grant its consent to a dealing in land except upon the application of the vendor. In Court Brothers Limited v. Sunbeam Transport Limited (1969) 15. F.L.R. 206 and in Fong Lee v Mitlal (1966) 12 F.L.R. 4 the consent of the Board to the sale was granted upon the application of the purchaser, and the legality of the contract was confirmed by this Court." 

 (Emphasis added)

A somewhat similar situation was considered by Byrne J. in "Mani Lal and Others v Satya Nand" (1994) 40 FLR 94. Byrne J said;

 "I am satisfied that the Defendant must have known that no consent of the Director of Lands had been obtained to his occupation. Before taking possession of the land he was under a duty to make all relevant enquiries as to the Plaintiff's title and since the land in question obviously was not freehold in my judgment one of the first steps he should have taken was to enquire whether the Director of Lands had given his consent to the transaction. 
 If the Defendant proceeded to erect a building on the land either knowing that the Director of Lands had not given his consent or oblivious to the lack of such consent he cannot hold this against the Plaintiff".

 (Emphasis added)

Essentially that is all I have to say!!!

(E)	CONCLUSION

For the reasons, which I have endeavored to explain, I venture to say beyond a peradventure that the facts and circumstances in this case do reveal that the Defendant is an illegal occupant on the land. Therefore, I have no hesitation in reaching the conclusion that the Defendant has no right to claim possession.

(F)	FINAL ORDERS

(1)	I order that Defendant to deliver immediate vacant possession of the land described in the Originating Summons dated 01st December 2014.

(2)	The Defendant is ordered to pay costs of $1,000.00 (summarily assessed) to the Plaintiff which is to be paid within 14 days hereof.

I do so order!

Jude Nanayakkara
Master of the High Court

At Lautoka
15 April 2016