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Chand v iTaukei Land Trust Board [2016] FJHC 878; HBJ3.2013 (16 September 2016)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA


[CIVIL JURISDICTION]


Judicial Review No. HBJ 3 of 2013


MOTI CHAND, SARAT CHAND, MUL CHAND, RAJESH PRASAD NAND & SANJAY NAND GOSAI all of Vatuniyabaki, Yasiyasi, Tavua


Applicants


V


ITAUKEI LAND TRUST BOARD a corporate body established under the iTaukei Land Trust Act, Cap 134 of 361 Victoria Parade, Suva.


Respondent


ARUN KUMAR of Vatuniyabaki, Yasiyasi, Tavua


1st Interested Party


SUGAR CANE GROWERS a finance institution having its registered office at 75 Drasa Avenue, Lautoka.


2nd Interested Party


Before : Hon. Mr. Justice R. S. S. Sapuvida


Counsel : Mr. Nawaikula N for the Applicants

Mr. Lutumailagi for the Respondent

Mr. Niven Padarath for 1st Interested Party


Date of Judgment : 16 September 2016


JUDGMENT

[LEAVE TO APPLY FOR JUDICIAL REVIEW]


  1. This is an application made by five applicants [the Applicants] dated 22 July 2013 under Order 53 of the High Court Rules 1988, for leave to apply for judicial review against number of decisions taken up in 2013 by the iTaukei Land Trust Board [the Respondent].
  2. The Respondent on the 1st January, 2013 issued an agreement for lease to the 1st Interested party (Paragraph 1 (i) of the Statement of the Applicants). The Applicants pursue to challenge the decision of the Respondent in issuing the agreement of lease to the 1st Interested Party. The Applicants are also challenging the decision of the Respondent in relation to 4 other leases.
  3. The application for leave for judicial review is in respect of the following Instruments of Tenancy [Leases] according to the summons;
  4. The Applicants are seeking inter alia the following orders from this court.
  5. Arun Kumar whose name is referred in paragraph 3 above is the 1st Interested Party in this case and the only party who objects the Applicants’ present application for judicial review. The 2nd Interested Party has never been an active party to the case and has never shown or made any interest.
  6. The hearing was conducted and concluded on 19th February, 2016 and the parties having made their respective oral arguments at the hearing urged for further written submissions to which only the 1st Interested Party complied with and has filed on 27th May, 2016.
  7. The 1st Interested Party submits that the application for leave of the Applicants must failed on the following grounds:-
  8. Pursuant to Order 53 Rule 3, Applicants are first required to seek leave of this court in order to judicially review the decision of the Respondent. At the hearing of the application for leave, the Respondent’s Counsel expressed his wish to consent for leave. However, the 1st Interested Party opposed this move of the Respondent for consenting for leave application and he objects the substantive application as well.

The Law


  1. Leave is required by reason of Order 53 of the High Court Rules 1988, and it reads:

Order 53, Rule 3(2)

An application for leave must be made upon filing in the Registry:


(a) a notice in Form 32 in the Appendix hereunder containing a statement of-

(b) an affidavit which verifies the facts relied on.
  1. However, the notice in Form 32 referred to in Order 53, Rule 3(2) (a) has not been filed in the precise format by the Applicants in the instance.

Sufficient Interest


  1. The relevant law applicable when dealing with applications for lave for judicial review as pointed out by the Counsel for 1st Interested Party was recently reviewed and applied by the full court of the Fiji Court of Appeal in the matter of Proline Boating Company Ltd v Director of Lands [2014] FJCA 159 ABU 0020.2013 (25 September 2014).
  2. Order 53 Rule 3(5) requires that the Applicant must have a sufficient interest in the matter to which the application relates. If the decision which is sought to be reviewed “interferes directly with the Applicant’s personal rights” then the Applicant is said to have a sufficient interest. ( Proline Boating Company Ltd v Director of Lands [2014] FJCA 159, ABU 0020.2013 (25 September 2014)
  3. In order to establish sufficient interest, it seems to me that the Applicants have filed the Affidavit of Moti Chand sworn on 22nd July 2013.
  4. The Counsel for the 1st Interested Party contends that the affidavit of Moti Chand is not in proper order.
  5. At paragraph 1 in his affidavit Moti Chand deposes that he is authorised to swear the affidavit on behalf of the other named Applicants. However, there is no authority annexed to support this. Secondly, the affidavit cannot be read into evidence without the leave of this Court as the affidavit does not comply with Order 41 Rule 9(2) of the High Court Rules. Order 41 Rule 9(2) reads as follows:-

“Every affidavit must be endorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed my not be filed and used without leave of the Court”


  1. His Lordship Justice Gates (as he then was) in Kim Industries Ltd in re (No 1) (2000) 1 FLR 141 held the following in relation to order 42 rule 9(2)

“Such endorsement and format is particularly helpful in interlocutory proceeding where there may be as many as 3 or 4 summonses to be considered and several affidavits in the action filed for each of the summonses. The endorsements assist in picking out the relevant affidavit for the particular summons to be heard. Sometimes the endorsement note is placed on the final page of the affidavit and such placing is also correct although not as helpful for the reasons I have mentioned.

If an affidavit bears an irregularity in its form, such as the omission of the endorsement note. Leave must be obtained from the court for it be filed or used [Ord. 41 r4 and Ord 41 r9 (2)]. In this case I am prepared to grant such leave to the petitioner. However, these rules have good purpose behind them. The failure of counsel to come with adequately prepared affidavits will not always result in a court allowing indulgence under order 41 or order 2r1 see Ba Town Council v Fiji Broadcasting Commission and other [1976] 22 FLR 91 at 94B; Glesson v J. Whippell & Co Ltd [1977] 1 WLR 510.”


  1. And yet, no leave has been sought to read the Affidavit of Moti Chand into evidence as such, the 1st Interested Party seeks for an immediate dismissal of the application with costs.
  2. However, the Counsel for 1st Interested Party submits that in any event if the Court is inclined to admit the Affidavit, still the Applicants have not provided enough evidence or acceptable or reliable evidence to establish sufficient interest. The Court will need to take into account the direct consequence test. That is to say, does the decision of the Respondent affect the Applicants directly? The Counsel suggests that the answer to this question is no. Firstly one is unable to identity which Applicant will be directly affected by the decision of the Respondent.
  3. The Applicants during the hearing submitted that the agreement to lease which has been issued to the 1st Interested Party was to go to one Rajesh and Sanjay Nand Gosai.
  4. However, there is no interest of Rajesh Nand Gosai and Sanjay Nand Gosai noted on the expired Native Lease number 12493 (Exhibit MC-1 in the affidavit of Moti Chand)
  5. There is no citation of any interest of Rajesh Nand Gosai and Sanjay Nand Gosai, as such; the 1st Interested Party submits that any decision of the respondent will not have any direct effect of them.
  6. The Applicants at paragraph 5 of the Affidavit [filed on behalf of all the Applicants] of Moti Chand depose that Rajesh Nand Gosai and Sanjay Nand Gosai are the children of one Satya Nand. However, nowhere in the affidavit does the deponent show evidence of an interest which may have passed to them under intestacy or any benefit under the last Will of Satya Nand.
  7. This evidence is important as it would assist this court to determine whether in fact the interest of Satya Nand has passed onto Rajesh Nand Gosai and Sanjay Nand Gosai. One cannot just assume that Satya Nand’s interest would have passed onto Rajesh Nand Gosai and Sanjay Nand Gosai. This is also true for distribution under the intestacy rules as per the Succession Probate and Administration Act Cap 60. Section 6 of the Act clearly defines how distribution is to take place and it does not distribute 100% interest to Rajesh Nand Gosai and Sanjay Nand Gosai.
  8. Furthermore, according to the offer letter (Exhibit MC 2) Rajesh Nand Gosai and Sanjay Nand Gosai have been offered lot 2. However, in the affidavit the deponent when referring to Rajesh Nand Gosai and Sanjay Nand Gosai make reference to lot 4. The 1st Interested Party is given the lot 1. This evidence clearly establishes that Rajesh Nand Gosai and Sanjay Nand Gosai have no interest in the portion of land issued to the 1st Interested Party.
  9. The onus to establish interest is on the Applicants and they have failed to do so. There is no explanation as to what lot is the correct lot which the Applicants have an interest over.
  10. On the above premise, the 1st Interested Party submits that the Applicants have failed to provide sufficient evidence to establish that Rajesh Nand Gosai and Sanjay Nand Gosai have a sufficient interest in the application.
  11. Moreover, if one look at the summons filed by the Applicants the Tenancy No. 4/4/39207 in the name of Mul Chand, it is dated as “2013”, and it does not carry an exact date or a month. [See paragraph 3 above]. Hence, it shows that the Applicants are not aware of exact and accurate details regarding their own claim.

Inordinate Delay


  1. The 1st Interested Party submits that the Applicants’ application for judicial review is out of time.
  2. Order 53 Rule (4) of the High Court Rules 1988 provides that if there has been undue delay then the Court can refuse leave. The issue of undue delay can also be considered even after leave is granted that the court has to form an opinion that the granting of the leave “would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration”. (Harikisun Limited v Dip Singh & Oths, Director of Town and Country Planning & SCC [1996] ABU 19/95S 4 October 1996 at page 4).
  3. The conditions to be considered at the time of granting of leave are well explained under Order 53 Rule 4(2).
  4. This provides that an application for an order of Certiorari must be made within a period of three months from the date of proceedings. This is counted from the date of the decision. The Applicants in this case have filed their application on the 22nd July 2013.
  5. However there is an issue as to what date from which one must take to compute the relevant period. The reasoning behind this is that its standard practice or procedure for the Respondent to issue a letter of offer to any party who has applied for a lease. After the requirements of the offer letter have been met, the Respondent will issue that party with the relevant lease.
  6. In this particular case, the Applicants in their “Statement of the Applicants” at paragraph 2(i) (a) have noted that the agreement to lease was issued on 1st January 2013.
  7. However, the 1st Interested Party says that this is not correct. The 1st Interested party was issued the lease sometime in 2012. But it is not substantiated with any such grant given to the 1st Interested Party.
  8. Nevertheless, even if one takes 1st January 2013 as the date of the decision of the Respondent, the Applicants’ present application for leave is still out of time as it was filed on 22nd July 2013.
  9. The court at this point has to be very cautious of the procedure stipulates by Order 53, r. 4 of HCR 1988 under which the court shall have to give attention to the very essential directions given in it before making the decision on the application for leave as far as the said provisions are concerned and it reads as follows:

O.53, r. 4,- (1) Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant-


(a) leave for the making of the application, or

(b) any relief sought on the application,


If, in the opinion of the Court, the granting of the relief sought would be if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.


(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of paragraph (1) is three months after the date of the proceeding.


(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.


[Emphasis added]


  1. Thus, the application for judicial review in the case in hand shall fail on the above ground itself as it is confirmed that the Applicants are way out of time in seeking leave of this court. There is no such move by the Applicants to file an application for extension of time to file the application for leave for judicial review either. However, even if there is such, the court is not inclined to grant an extension of time in view of the provisions stipulates under Order 53, r 4 (2) of the HCR 1988, because the Applicants are seeking for an order of Certiorari quashing the above mentioned leases and further they are also seeking an order of Mandamus directing the Respondent to re-issue the leases.
  2. Nevertheless, for completeness and for comprehension purposes, I will discuss the other grounds on which the 1st Interested Party is objecting to the application for judicial review albeit the Applicants are already unsuccessful in this Application on the forgoing impediment they face.

Arguable case


  1. The Fiji Court of Appeal has neatly enunciated the principles in the following terms in Fiji Airline Pilots Association v Permanent Secretary for Labour and Industrial Relations [1998]FJCA 14; ABU 0059U.97s (27 February 1998):

“the basic principle is that the judge is only required to be satisfied that the material available discloses what might on further consideration, turn out to be arguable case in favour of granting that relief. If it does, he or she should grant the application per Lord Diplock in Inland Revenue Commissioners v National Federation of Self Employed [1981] UKHL 2; [1982] Ac 617 at 644. This principle was applied by this Court in National Farmers Union v Sugar Industry Tribunal and Others (CA 8/1990: 7 June 1990). In R V Secretary of State for the Home Department exp. Rukshanda Begum (1990) COD 107 (referred to in 1 Supreme Court Practise 1997 at pp.865 and 868 Lord Donaldson MR accepted that an intermediate category of case existed where it was unclear on the papers whether or not leave should granted in which event a brief hearing might assist, but it should not become anything remotely like the hearing which would ensue if the parties were granted leave.”

  1. In State v Connors, ex Parte Shah [2008] FJHC 64 cited in Maisamoa v Chief Executive Officer for Health Civil Appeal No ABU0080/2007S, Scutt J observed the process to be adopted at the leave stage.

“at this stage a full review of the facts is unnecessary. Nonetheless, a court is obliged to sufficiently pursue the material provided to determine whether an Applicant raises an issue arguably involving an error in law, a serious error in fact, a violation of natural justice or procedural fairness, or an excess of jurisdiction by the decision maker the subject of the application.”


  1. The above principles were also applied by the Fiji Court of Appeal in Proline Boating Company Ltd v Director of Lands [2014] FJCA 159 ABU0020.2013 (25 September 2014) at paragraph 62.
  2. At the hearing of the leave application, Counsel for the Respondent consented for Leave being granted. However, the consent of the Respondent does not negative the obligations of the Court to pay due regard to the mandatory Rules in the HCR 1988 especially when the Applicants are seeking the order of Certiorari and Mandamus against the Respondent.
  3. The High Court in State v Central Agricultural Tribunal v Parawati, ex parte Singh [2015] FJHC 1000. HBJ34.2007 (4 December 2015) cited the case of Chief Constable of the North Wales Police v Evans [1982] UKHL 10; (1982) 3 ALL ER 141 at page 154 and held the following:

“Judicial Review is concerned not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power”


  1. The 1st Interested Party submits that the Applicants would need to present an arguable case to establish that the Respondent erred in the decision making process. There is no dispute in fact that the 1st Interest Party has an agreement to lease a portion of land from the Respondent.
  2. The Applicants alleged that the Respondent did not take into consideration relevant information when deciding to issue an agreement for lease to the 1st Interested Party. The Applicants submit that the relevant information is the Respondent’s policy to issue leases to person who are either in occupation of cultivation of the land.
  3. The 1st Interested Party submits that the Respondent did in fact take this into consideration. As the evidence before this court suggests, the 1st Interested Party has been in occupation of the land since 1986 (as per the Exhibit MC 5 in the affidavit of Moti Chand). The Respondent has not filed any Affidavit in Response and or has any other party. However the obligation still remains with the Applicants to satisfy the court that they have an arguable case.
  4. Exhibit MC 5 is a copy of the minutes of the meeting which states that the 1st Interested Party has been living on the land since 1986 and it further states that the house or residential structure on the land has been built by the 1st Interested Party.
  5. These facts are relevant, if one were to consider this, in line with the Applicants’ submissions that the Respondent has policy to issue leases to the person in occupation, then the Respondent has correctly issued the agreement of lease to the 1st Interested Party. He was in occupation of the land.
  6. The Applicants in their Affidavit [of Moti Chand] suggest that the 1st Interested Party was in occupation illegally.
  7. The Counsel for the 1st Interested Party submits that the issue of illegality is not the subject matter for this court to determine.
  8. The lease in question expired on 1st January 2013 [Paragraph 6 of Moti Chand’s affidavit] which means the land was held by the Respondent, and it was free to issue to whosoever applies for a fresh lease. If the policy of the Respondent is to issue the land to the person in occupation and as it correctly has issued, the agreement of lease should be issued to the 1st Interested Party.
  9. Further, by admission of the Applicants, the 1st Interested Party is only issued an agreement for lease over the land which he is in occupation and not any portion of land which is being cultivated an occupied by the Applicant/s. The Applicants had all the opportunity to evict the 1st Interested Party from the land; however, no attempts were made until 12th July 2013. The Applicants filed an application to evict the 1st Interested Party which however had subsequently been withdrawn by them.
  10. The Applicants further submit that they had a legitimate expectation to be issued with a lease over the land on which they are in occupation and cultivation. The concept of legitimate expectation has been accepted in Fiji by the Fiji Court of Appeal in Pacific Transport Ltd –v- Khan [1997] FJCA 3 ABU 0021U.1996(12 February 1997), as it was held that:

“The concept was first formulated briefly by Lord Denning MR in Schmidt v secretary of State for home affairs [1969] 2 Ch 149 at 170. Essentially, it is that a person may, in certain circumstance, have a legitimate expectation as to procedures to be followed by an administrative decision maker prior to a decision being made. The expectation relates to a privilege advantage or benefit to which were no legal right is. It arises where


  1. An express representation has been made to the person concerned, or to a group of people of which he or she is a member, that a certain procedure will be followed before a decision is made (attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 A.C 629 PC: Attorney General of New South Wales v Quin (1990) 170 CLR 1); or
  2. there is a longstanding practice of following a certain procedure before a decision is made (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 HL)


Taking into account the above law, the Applicants do not state anywhere in their Affidavit in support that the Respondent expressly represented to them that they will be issued with the lease over the land.


  1. The only provision which the Applicants can rely on is that second limb of legitimate expectation. The Counsel for 1st Interested Party submits that the Applicants have failed to show what the “long standing practice is”. The only submission put forth is that the Respondent has a policy to issue leases to persons in occupation and cultivation.
  2. The Applicants have failed to establish that the 1st Interested Party was not in occupation of the land, rather the fact is that the agreement for lease was issued to the 1st Interested Party in line with the Respondent’s existing policy that is since the 1st Interested Party was in occupation he was duly issued an agreement for lease upon an application.
  3. Hence, the facts are as such, the Applicants have failed to satisfy that they had a legitimate expectation. However, even if one was to assume that there was a legitimate expectation for the Applicants to be issued with the lease, then the Applicants had to provide evidence as to what procedures were not followed by the Respondent in line with the legitimate expectation.
  4. The 1st Interested Party submits that there is nothing provided by the Applicants to establish the former. The only allegation is that the 1st Interested Party’s occupation is illegal. The allegation is denied, and in any event, the law dictates that a Court usually does not look into the content or the merits of the decision but rather at the decision making process.
  5. The Fiji Court of Appeal resounded this in Pacific Transport Ltd v Khan (Supra),

“the privilege, advantage or benefit may be substantive in nature or only procedural. However, as Mason C.J, stressed in Quinn (supra) at p 21, when applying the concept of legitimate expectation, a court must “avoid confusion between the content of the expectation and the right to procedural fairness.


A court has no power, in judicial review proceedings, to determine the merits of the decision under review. For that reason, we consider that the few English case. (such as R V Secretary of State for the Home Department [1984] EWCA Civ 8; [1984] 1 W.L.R. 1337], in which a legitimate expectation was held to exist that substantive policy would not be changed, are not helpful) (emphasis is mine).”


  1. In falling in line with the above law, there is no evidence to even suggest where the Respondent erred in the decision making process.
  2. As correctly pointed out by the 1st Interested Party in the written submissions, the Applicants’ argument on the grounds of legitimate expectation has not been established and therefore the application must fail.
  3. Finally, having taken into consideration the all material facts before me and the law applicable to the Applicants’ present application for leave, I am of the firm view that the application for leave to apply for judicial review must fail.
  4. Therefore, the application for leave to apply for judicial review is dismissed and struck out.
  5. I shall not order costs considering the background of the case.

R. S. S. Sapuvida


[JUDGE]
High Court of Fiji


On the 16th day of September 2016

At Lautoka.

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