Khan v iTaukei Lands Trust Board [2022] FJHC 103; HBC305.2021 (2 February 2022)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

Civil Action No. 305 of 2021

BETWEEN:

MOHAMMED AZEEM KHAN of Nawaicoba, Nadi also residing in Sydney, Australia.

PLAINTIFF

AND:

iTAUKEI LANDS TRUST BOARD a body incorporated under the iTaukei Lands Trust Act Cap 134 with its registered office at 431 Victoria Parade, Suva

DEFENDANT

Counsel: Ms Nettles for the Plaintiff
Mr. Cati for the Defendant
Date of Hearing: 27.01.22
Date of Ruling: 02.02.22

R U L I N G

1. On 27 January 2022, Messrs JK Singh Lawyers filed an ex-parte Summons supported by a scan-copy of an affidavit sworn by Mohammed Azeem Khan seeking the following Orders:
   
   • (a) For an Order restraining the burial of the said Osea Naiqamu on the property being I Taukei Land known as Nawai No. 2 (Pt of) Lot 6 on DP 2961 District of Momi, in the Province of Ba, having an area of 21.7720 ha, which is the subject of the current litigation;
   • (b) That Fiji Police Force to assist in serving and/or executing this Order;
   • (c) That service of this application be abridged;
   • (d) That costs on a solicitor-client indemnity basis
   • (e) Any further or other orders as this Honourable Court may deem fit in the circumstances.
     
2. The scan-copy of Khan’s affidavit is attached to a covering affidavit of Mohammed Zubier Hussein. Hussein is a Legal Executive in the law firm of Messrs JK Singh Lawyers. In his covering affidavit, Hussein deposes inter alia at paragraphs 4,5 and 6 that Khan resides in Australia and that the Affidavit in Support of the ex-parte Notice of Motion had been sent by Messrs JK Singh Lawyers to Khan to have the same sworn and sent back for filing in the High Court and that Khan, having sworn the said affidavit in Australia, has sent back to Messrs JK Singh Lawyers a scan copy via email with the original to follow via international courier.
   
3. I do note that the jurat in the scan-copy of Khan’s affidavit is worded as follows:
   

SWORN by the said MOHAMMED AZEEM KHAN at Nadi, Fiji this 26 day of January, 2021 before me: Sgd. Anthony William Greig Australian Legal Practitioner Public Notary ID 1142 Sydney NSW AUSTRALIA A COMMISSIONER FOR OATHS

) ) )

Sgd. Mohammed Azeem Khan ........................... (Notary Public Seal Affixed)

4. The application is made pursuant to section 5 subsection 1(b) of the Burial and Cremation Act 1911 and the inherent jurisdiction of the Court.
   
5. Section 5 of the above Act provides:
   

Site of burial-ground or crematorium

5.-(1) No burial-ground shall be used, and no crematorium shall be constructed, nearer to any dwelling-house than two hundred yards except with the consent -

(a) in the case of a burial ground or crematorium within a city or town, of the Minister;

(b) in the case of the burial-ground or crematorium elsewhere, of the owner, lessee and tenant, if any, of such dwelling-house, signified in writing.

(2) No crematorium shall be constructed within fifty yards of any public highway nor in the consecrated part of any burial ground. (Sn amended by 2 of 1964 1964, s. 5.)

6. The immediate questioch arises in this case is whether the applicant is the owne owner, lessee or tenant in terms of section 5(1)(b), or, indeed, whether section 5(1)(b) is relevant at all.
   
7. In his supporting affidavit, Mohammed deposes as follows:
   
   • (a) That he was the last registered proprietor of the land in question.
   • (b) That he and his family have been in occupation and cultivation of the said land for 19 years as per lease granted in 1991.
   • (c) The said lease expired on 31 December 2020.
   • (d) Prior to the expiry of the lease, i-TLTB had written to him on 29 May 2018 and confirming that a renewal would be granted.
   • (e) He was then granted a twelve month grace period to occupy the premises and to continue cultivation
   • (f) That the late Osea Naiqamu had contacted him about the renewal of the lease and had also talked to i-TLTB about it.
   • (g) That Khan himself had made numerous applications to the iTLTB about the lease renewal but to no avail.
   • (h) However, iTLTB colluded with Naiqamu which has resulted in Naiqamu entering the property and cultivating the same without any authority or consent or knowledge of Khan.
   • (i) Khan wrote to iTLTB on 20 December 2021 for clarification but to no avail. He deposes that he is loosing out on the investment he had made on the sugarcane filed.
   • (j) iTLTB is acting unlawfully, fraudulently and arbitrarily in not renewing his lease over the property.
     
8. When the application was referred to me on 27 January 2022, I had a look at the nature of the relief sought and had a quick read through the affidavit in support. I then instructed the Registry to issue the interlocutory process inter partes with directions to the applicant to serve the application to the I-TLTB within the hour and that I would hear the application on a Pickwick basis later on the same day at 3.00 p.m.
   
9. At the hearing later on the same day at 3.00 p.m., Ms Nettles appeared for the applicant and Mr. Cati appeared for the respondent.
   
10. Ms Nettles clarified that the plaintiff had been granted a twenty-year extension over his lease which extension had expired on 31 December 2020. On 29 May 2018, the iTLTB wrote the following letter to the applicant:
    

29 May 2018

Mohammed Azeem Khan

PO Box 2500

NADI TOWN

(ALTA-PRE-EXPIRY REMINDER)

Dear Sir,

I TAUKEI LAND KNOWN AS NAWAI NO 2 (PT OF) LOT 6 ON DP2961 DISTRICT OF MOMI; TLTB REF: 6/10/80102

This is to advise that your contract of tenancy will be expiring on 31^st December, 2020.

Under the terms and conditions of your contract of tenancy which is consistent with the provisions of the Agricultural Landlord and Tenant Act (ALTA), you have no right to a renewal of further extension after expiry of your current tenancy term.

However, in anticipation of the expiry of your lease we had consulted the landowners and wish to advise that:

You will be granted a new lease term under the provisions of ALTA

Please do take note that due consideration will be given on the following:

1. Your rent is paid up to date of the expiry of your contract of tenancy, and
2. You perform and observe all the terms and conditions of your tenancy during the term of your expiring tenancy

100. If you are to vacate the land, under section 9(i)(f)(ii) of ALTA, the Board will grant you with a 12 months grace period if you comply with the two requirements a) and b) above.
     

........................................................................................................................................................................................................................

Yours faithfully

.............................

Soloveni Masi

MANAGER South West

11. At the hearing, Mr. Cati pointed out that while the applicant may have his grievances with the iTLTB regarding the renewal of his lease, the injunction sought should be directed against the family of the deceased who are not named as parties in the action. I totally agree. This Court cannot grant injunctive Orders against iTLTB as the iTLTB is not responsible for the burial of the late Mr. Naiqamu.
    
12. In fact, there is no clear evidence before me either that the family of the deceased intend to bury the late Mr. Naiqamu on the land in question. That evidence could only have been made clear if the deceased’s surviving spouse or a close member of his family had been made a party to this action. When I asked Ms Nettles as to what evidence the applicant has that the family intends to bury the deceased on the land in question, Ms Nettles conceded that there is no clear evidence but that the plaintiff suspects that the family intends to do so based on what people are telling him.
    
13. On my reading of the Fiji Court of Appeal’s judgement in Chambers v Wakaya Limited [2011] FJCA 25; ABU0040.10 (15 March 2011) and the Supreme Court’s decision in Wakaya Ltd v Chambers [2012] FJSC 9; CBV0008.2011 (9 May 2012), I surmise that in a case such as the present, the basic question is whether an applicant is entitled to restrain the respondents from burying the body of the deceased on the land in question. Ms Nettles did not rely on the principles in the above case.
    
14. I am mindful that in the application before me, the applicant relies on section 5(1) (b) of the Burial and Cremation Act 1911. I am of the view that the said section does not apply. It only applies to forbid any burial or cremation at a site which is within 200-meters of any dwelling-house, except with the consent of the tenant. There is no evidence before me that the intended burial site is to be within 200 meters of the dwelling house of the applicant. In any event, even if section 5(1) (b) applied, the applicant does not qualify as a tenant as his lease had expired on 31 December 2020 and there is no evidence before me that he has applied and paid the relevant fees. This however, is without prejudice to the substantive relief which he claims in his writ of summons and statement of claim. In the circumstances, I must refuse the application. Parties to bear their own costs.
    

............................

Anare Tuilevuka

JUDGE

Lautoka