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Baleitavua v Kuilamu [2022] FJHC 27; HBC148.2017 (31 January 2022)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION


Civil Action No. 148 of 2017


BETWEEN:


SEVANAIA BALEITAVUA
PLAINTIFF


AND:


VILIAME KUILAMU
1ST DEFENDANT


NADIDI TAGANISELALA
2ND DEFENDANT


ITAUKEI LAND TRUST BOARD
3RD DEFENDANT


NAND LAL
4TH DEFENDANT


JAY KUMAR GUPT AKA JAY KUMAR

5TH DEFENDANT


BEFORE:
M. Javed Mansoor, J


COUNSEL:
Ms. I. Sauduadua for the plaintiff
Ms. I. Suveinakama with Ms. L. Komaitai for the 1st, 2nd and 3rd defendants
Mr. A. Chand for the 4th and 5th defendants


Date of Hearing:
18 & 19 July 2019


Date of Judgment:
31 January 2022


JUDGMENT

PROPERTY LAW Native Land – Lease of native land – transfer of lease – Fraud – Conspiracy to defraud – Registration of title – Standard of proof – Sections 4 & 10 iTaukei Land Trust Act 1940 – Land Transfer Act 1971

The following decisions are referred to in this judgment:

  1. Jay Kumar Gupt v Sevanaia Baleitavua [2018] FJHC 1030; HBC 2.2018 [24 October 2018]
  2. Jay Kumar Gupt v Sevanaia Baleitavua [2019] FJHC 7; HBC 2.2018 [23 January 2019]
  1. Stuart v Kingston [1923] HCA17; [1923] HCA 17; [1923] 32 CLR 309
  1. Waimiha Sawmilling Co. Ltd. V. Waione Timber Co. Ltd. [1926] A.C 101

The plaintiff’s claim

  1. The plaintiff is a member of the Mataqali Navunimavulo in Vanua Levu. He alleges that a plot of native land, which he currently occupies, was fraudulently given by the third defendant, the iTaukei Land Trust Board, to the fourth defendant and, later, unlawfully transferred to the fifth defendant. The plaintiff pleaded that the first, second and third defendants conspired in making those conveyances, and thereby deprived him of his rightful interest in the land.
  2. The first and second defendants were estate officers of the iTaukei Land Trust Board. They worked at the third defendant’s Labasa office. The third defendant was established under the iTaukei Land Trust Act 1940. The control of all itaukei land is vested in the iTaukei Land Trust Board to be administered for the benefit of iTaukei landowners. The plaintiff contended that the third defendant was vicariously liable for the acts of the first and second defendants in the course of their employment.
  3. The plaintiff’s action is for cancellation of the lease granted by the third defendant to the fourth defendant on 30 July 2014, to set aside the fourth defendant’s transfer dated 25 June 2015 to the fifth defendant and for a new lease to be granted to the plaintiff or a member of his mataqali. In addition, the plaintiff claimed damages.
  4. The plaintiff stated that the fourth defendant failed to pay rentals to the third defendant as and when required. By this, it was pleaded, there was a breach of the tenancy agreement. Consequently, by a notice to quit dated 1 July 2010, the plaintiff stated, the third defendant gave the fourth defendant a period of three months to pay the rent arrears in the sum of $2,960.76. The notice provided that if the rental arrears was not paid, the third defendant would terminate the lease requiring the fourth defendant to deliver vacant possession of the land.
  5. The plaintiff pleaded that he was in occupation of the subject land since 2008 with the consent of the first, second and third defendants, and the knowledge of the fourth and fifth defendants. The plaintiff pleaded that the third defendant allowed him to occupy the land pending determination of the action against the fourth defendant in the Magistrate Court of Labasa. He pleaded that the third defendant agreed to grant him a new lease upon the conclusion of proceedings before the magistrate, and that in breach of such agreement the third defendant had granted a new lease to the fourth defendant.
  6. The plaintiff also pleaded that the fourth defendant sublet the land after he vacated in 2008. This, the plaintiff claimed, was a further breach of the tenancy. The plaintiff said that, following the breach, he made a complaint to the third defendant. Later, he obtained the third defendant’s permission through the second defendant to take possession of the land and apply for a new lease.

Defence and counterclaim

  1. A common statement of defence was filed on behalf of the first, second and third defendants. The defendants denied that the conveyances were fraudulent or unlawful. They denied conspiracy to defraud or injure the plaintiff, and pleaded that standard procedures were followed in granting the lease. These defendants pleaded that a lease was issued to the fourth defendant over Navotua subdivision lot 3 on plan no. B 220 in Bua. The lease was later transferred to the fifth defendant, and the transfer was registered by the registrar of titles on 25 June 2015. The third defendant denied the claim of vicarious liability.
  2. The fourth and fifth defendants filed a joint statement of defence. It was pleaded that a lease was initially granted to the fourth defendant’s mother, Jira Wanti, and, upon the expiry of that lease, property rights were given to the fourth defendant. Transfer of the lease was made after all rental arrears were settled. They pleaded that the plaintiff forcefully entered the subject property without the third defendant’s permission. These defendants claimed that the fourth defendant vacated the land in 2011 for safety reasons. The fourth defendant denied having received a notice to quit or that default judgment was entered against him.
  3. The fourth defendant counterclaimed for $90,000. The fifth defendant’s counterclaim was for $50,000.

Trial

  1. Trial was over two days. The plaintiff and Mr. Amani Bale gave evidence on behalf of the plaintiff. Mr. Bale is a solicitor of Patel & Bale, the solicitors on record for the plaintiff. Ms. Sereana Tuisabeti, Mr. Jope Volai, Mr. Epeli Tawake, Ms. Senimelia Karikaritu and Mr. Isoa Vakabua gave evidence on behalf of the third defendant. The fourth and fifth defendants also testified. The first and second defendants did not give evidence.
  2. At the outset, Mr. Chand submitted that an action under section 169 of the Land Transfer Act 1971 was instituted on behalf of the fifth defendant. In that case, it was submitted that the plaintiff’s defence of fraud was rejected by the master of the High Court of Labasa and affirmed in appeal by the High Court. This matter is considered in the later part of the judgment.
  3. After the conclusion of the trial, written submissions were filed on behalf of all parties. Common submissions were filed on behalf of the first, second and third defendants.

Agreed facts

  1. The parties agreed on these facts. The third defendant gave the fourth defendant a lease on 1 July 2001. That lease was for a period of 30 years. This lease was later transferred by the fourth to the fifth defendant with the consent of the third defendant. The transfer was made on 25 June 2015. The third defendant’s consent for the transfer was made through the second defendant. An annual rent of $500 was payable half yearly in advance in the months of January and June for agricultural purposes. The mataqali is the registered owner of the land contained in instrument of tenancy known as Navotua lot 4 in the District of Bua, in the Province of Bua containing an area of 6.7400 hectares.
  2. The parties raised about 45 issues for the court’s determination. Reproducing them all will not be necessary. Suffice to say that issues related to fraud, conspiracy and the competing land rights of the antagonists are the most critical for adjudication, along with the question of whether any party is entitled to damages. The evidence will be considered mainly in answering these issues.

Does the plaintiff hold rights to the land?

  1. The plaintiff’s case is on the basis that he has rights to occupy the land and that the fourth defendant did not have such rights after his lease expired and he abandoned the land by going to Suva. By pleading and in evidence the plaintiff insisted that his occupation of the land has been with the knowledge and approval of the first, second, third and fourth defendants. It is necessary to examine the respective claims of the plaintiff and the fourth and fifth defendants to the land.
  2. The Plaintiff testified that he is a member of the Mataqali Navunimavule No. 2 Navotua, in Bua. His evidence was that he is in possession and occupation of the subject land on the approval of the first and second defendants, and that he had also applied for a lease from the third defendant. Therefore, he said, it was wrong on the part of the third defendant to have issued a lease to the fourth defendant instead of giving him a lease of the land. The plaintiff said that the fourth defendant failed to comply with the notice to quit. Thereupon, the third defendant obtained judgment against the fourth defendant in the sum of $3,133.26 inclusive of costs and vacant possession.
  3. The plaintiff said that he entered the subject property while the fourth defendant’s mother also resided in the property. Prior to entering the land, the plaintiff resided on property belonging to his clan which was opposite the land. He explained that he was invited to reside on the property in 2008 by the fourth defendant’s mother as she was alone. He took care of her while the fourth defendant was in Suva. He did not force her out of the property. When he entered the property, he was under the impression that the lease issued to the plaintiff and his mother had expired. This was the reason the he moved into the land.
  4. The plaintiff said he was unaware at the time he entered the property that the lease was renewed and given to the fourth defendant. At the time he moved to the land, Mr. Nand Lal, the fourth defendant, was staying in Suva. He said that the fourth defendant and his mother lived on the subject land for more than 30 years. He knew that the fourth defendant’s mother was a lessee to the land and cultivated the land. The fourth and the fifth defendants, he said, never farmed the land. He denied that planting could not be carried out because of his occupation of the land.
  5. After moving into the land, the plaintiff built a house on the property. This was on the assumption that the lease had expired. Mr. Nand Lal’s mother was in occupation when he built his house. The plaintiff said that he had told Mr. Nand Lal that he would build his house on the land. Mr. Nand Lal had given his approval. After building the house, he went to the office of the third defendant and met one Mr. Josefa Lalabavu. This was somewhere in 2010. The plaintiff said he submitted an application for a lease. He could not remember the year in which the application for lease was made. The third defendant, he said, never responded to his application. He was not notified whether the third defendant approved his lease application. He continued to live on the land. He admitted that Mr. Lalabalavu did not at any time ask him to remain on the property. The plaintiff said he was advised to stay on the subject land by his brother’s son, Mr. Amani Bale.
  6. The plaintiff’s claims were backed by the extensive evidence of Mr. Amani Bale.
  7. Mr. Bale said that he belonged to the same mataqali as the plaintiff. He said that the plaintiff moved to the land in late 2008. He knew the fourth defendant. Mr. Bale said there was nothing on the property except three houses and grass when the plaintiff entered the property. There was no farming or livestock on the property. He said that the plaintiff looked after Mr. Nand Lal’s mother for three years. He said that when the fourth defendant went to Suva he left his mother and two daughters on the property.
  8. Mr. Bale justified the plaintiff’s occupation saying that the plaintiff moved into the land assuming that it was abandoned, and that he did so as he was the beneficial owner.
  9. Mr. Nand Lal is a carpenter. He also holds a taxi licence. The evidence has it that he was the fifth defendant’s taxi driver in Suva. Mr. Nand Lal worked for the water authority while he resided in Bua. The subject land was initially given to his mother, and later transferred to him. The third defendant gave the land to his mother in the 1980s. He said that he and his mother cultivated the land. This was while he worked for the Water Authority in Bua. However, the lease under his parents name expired in 2001. Mr. Lal said after the lease expired in 2001, the renewal was confirmed in 2010. A fresh lease was issued to him in 2014 dating back to 2001 after all arrears were cleared.
  10. Mr. Lal said he went to Suva in 2007. Then he returned and worked for the Water Authority until the end of 2009. He went to Suva again in 2011. Thereafter, he did not return to Bua. He went to Suva as he could not continue working on the land anymore. Someone was killing his goats. As he had no income he went looking for a job in Suva. He wanted to make money, pay the arrears of rent and get back to farming. After leaving the land and residing in Suva he was unaware of what went on in the land. He denied that his mother invited the plaintiff to the land. Mr. Lal said that the plaintiff built a house somewhere in 2010 without approval from him or his mother about 300 meters from his mother’s house and about 150 meters from his house. After the house was built, the plaintiff told them not to do farming or have cattle on the land.
  11. Mr. Nand Lal said he and the fifth defendant were from Bua. They knew each other well. He said he told the fifth defendant everything, including the lease and the plaintiff’s occupation of the property. The third defendant told him that as soon as the arrears of the lease was settled the plaintiff would move out of the property. Mr. Gupt, he said, was fully aware of the issues concerning the plaintiff’s occupation of the property. Mr. Gupt had paid him almost $15,000 as consideration for the transfer. The payment covered the arrears, his personal loans and a payment concerning an accident.
  12. Mr. Nand Lal said he transferred the lease to the fifth defendant as he had taken a loan. He had agreed to transfer the land to Mr. Gupt if he was unable to pay back the borrowed sums for settlement of the rent. Mr. Nand Lal said he had not visited Labasa since 2011. The transfer documents were signed at Mr. Lal’s lawyer’s office. It was signed in the presence of Mr. Shelvin Singh, at his office in Cumming Street. As far as he was aware, he said, the proper procedures were followed in transferring the lease to the fifth defendant.
  13. The fifth defendant, Mr. Gupt, explained how he came to purchase the disputed land. The fourth defendant was his taxi driver in Suva. Mr. Nand Lal borrowed money from Mr. Gupt to settle the arrears of rental. He said that he made rental payments on behalf of the fourth defendant. At the time he made those payments in 2012, he had no interest in the land. He had personally made payment of rental arrears even before the transfer of the lease on the request of Mr. Nand Lal. He denied that he was aware of the issues surrounding the property or of a court case related to the property. He was only aware of the arrears. He became aware of the issues concerning the property after purchasing the property. Had he been aware, he said, he would not have paid the amount he did for the transfer.
  14. Mr. Gupt’s evidence as to whether he knew of the controversies concerning the land is at odds with the evidence given by Mr. Nand Lal.
  15. The third defendant issued the fourth defendant an instrument of lease dated 14 July 2014. The monetary consideration was stated in the lease agreement as the yearly rent of $500 to be paid in advance in January and July and a sum of $1,000 to be paid prior to execution of the lease. A sum of $250 out of the annual rent was also payable prior to execution. The lessee’s covenants were stated in paragraphs (a) t (r). The land could not be used for any purpose other than for agriculture and ancillary residential purposes. The bottom of the first page of the instrument bore the seal of the registrar of titles. The iTaukei lease number is given as 31557 and the registration date as 30 July 2014. The lessee was under the usual obligation to pay rent on time.
  16. In the pre-trial conference minutes the parties agreed that a lease was issued in 2001. This was confirmed by Ms. Tuisabeto who, in her evidence, said that an instrument of tenancy was not issued in 2001. There is a technicality concerning the terms tenancy and lease. Mr. Bale said an instrument issued to the fourth defendant initially was a tenancy. A proper lease, he said, is issued after the plot of land is surveyed. This was confirmed by Ms. Tuisabeto. She said that a registered agricultural lease is a surveyed lease. As a result, he said, there was an overlap between lots 3 and 4. Both lots, Mr. Bale explained, refer to the same land. When the plan related to the land was shown to the witness, he agreed that lots 3 & 4 would be held under the same lease. He agreed that both lots referred to the same land. When this was pointed out, Mr. Bale did not disagree that the contract that was issued to the fourth defendant was transferred to the fifth defendant. Mr. Bale replied: “Now that you tell me, I know now. But, then, I did not know”. Mr. Jope Volai, who gave evidence for the third defendant, confirmed that following the survey, lots 3 & 4 was to be held under one lease. Mr. Volai confirmed that the lease bearing number 31557 was a registered lease while giving evidence on the relevant registered survey plan. Mr. Volai was the board’s former manager north, and served in that position from 2015 to 2017.
  17. The second defendant, Mr. Nadidi Taginaselala, signed the form described as the Application for Consent to Assign. He signed giving consent of the iTaukei Land Trust Board to the assignment of the land on 7 May 2015. His designation is given as estate officer, iTuakei Land Trust Board, Northern Region. The consent was subject to the condition that the assignment of the land would be concluded within three calendar months. The consent of the landowners was not required to issue the lease. The fourth defendant and the fifth defendant signed the form as assignor and assignee on 30 March 2015. Their signatures were witnessed by solicitor, Mr. Shelvin Singh. The objection was taken up that the second defendant could not have signed the consent in Suva - as was done by the fourth defendant - when he was based in Labasa. The third defendant conceded that the lease was not signed in Labasa. This was confirmed by the fourth defendant who said he had not returned to Labasa since leaving the land in 2011. The consent form shows that the consent was given on a later date. The evidence suggests that the consent was signed on behalf of the third defendant in Labasa. The signing of the lease agreement and the subsequent transfer document in Labasa do not invalidate those contracts.
  18. The plaintiff pleaded that the third defendant agreed to let him occupy the land and that it would also issue him with a lease to the subject land in response to his application. Apart from the plaintiff’s claim there is no other evidence to say that the plaintiff submitted a lease application to the third defendant, which has denied the claim. The plaintiff claimed that he was invited to the land by the fourth defendant’s mother. He also claimed that he built his house with the fourth defendant’s knowledge and approval. The fourth defendant denied these claims. The plaintiff cannot hope to hold an interest recognised by law upon such doubtful claims. The court finds that the plaintiff has failed to prove any substantive right to the land. The plaintiff, by assuming that he has rights to the land, has interfered with the rights of legitimate occupants of the property.
  19. On the contrary, the evidence establishes that the fourth defendant was issued a registered agricultural lease in July 2014. The instrument provided that the lease was to commence from 2001. Although the third defendant instituted proceedings against the fourth defendant and obtained an order for vacant possession, the order was not enforced. The fourth defendant’s registered title continued unimpaired. Thereafter, the fourth defendant assigned the registered lease to the fifth defendant with the approval of the fifth defendant. The assignment was completed when the third defendant gave consent on 7 May 2015. The legal interest in the land passed from the fourth defendant to the fifth defendant.

Fraud and conspiracy

  1. The plaintiff pleaded that there was a conspiracy between the defendants to fraudulently grant the lease to the fourth defendant and thereafter to transfer it to the fifth defendant in derogation of his rights to the land. The question of fraud was well dealt by the master of the High Court of Labasa in Gupt v Baleitavua[1]. The applicable authorities are discussed at some length in the master’s judgment. The question of fraud was also given consideration by the judge when the master’s judgment was appealed to the High Court.
  2. The evidence of the parties concerning the claim of fraud and conspiracy is considered in the following paragraphs.
  3. Mr. Bale said he was aware that the iTLTB filed action to recover arrears of rental together with vacant possession from Mr. Nand Lal. Default judgment was entered against Mr. Lal. A notice to quit was issued on 1 July 2010. The court order was made on 25 September 2013, and sealed on 18 October 2013. Mr. Bale said that the new lease was made on 14 July 2014 and registered on 30 July 2014. He had seen the court order when it was advertised about a year after the order was made, on 27 September 2014, as the third defendant could not locate Mr. Nand Lal. Members of the mataqali knew of the order only after it was advertised. Once vacant possession was ordered by court, Mr. Bale said, the lease did not exist.
  4. Mr. Bale explained his reading of the matter in this way. There was a lease. The lessee was in arrears. Thereupon, the third defendant issued a notice to quit. The lessee did not make payment. The third defendant then obtained a court order for vacant possession and for recovery of arrears of rental. As a result, the lease was no more. The witness and others of the clan did not know that the third defendant issued a new lease for the subject land. He said they were unaware that the court order was not enforced.
  5. Mr. Bale said the lease given to the fourth defendant on 14 July 2014 was on the same terms as the lease from which he was evicted. “So what we are saying is, you evict him; get an order and then you put him back there”. Mr. Bale said if the arrears were being paid, there was no need to advertise the court order a year after it was obtained. He said there was something wrong with that. He found out about the eviction after the order was advertised on 29 September 2014. He said that the third defendant was evasive and did not tell him that a new lease was issued.
  6. In regard to the eviction proceedings instituted against him, the fourth defendant had this to say. He was unaware of the court order obtained by the third defendant to vacate the land. He told court that the third defendant informed him by telephone that action was to be filed to evict him from the land, but that he was not served with papers. There is, in fact, no evidence that court documents were served on him.
  7. Mr. Bale acknowledged that the instrument of tenancy mentioned a lease for 30 years from 2001. The problem, he said, is that the fourth defendant left, and according to him, there was no lease in 2009. Mr. Bale said his searches of the land at the third defendant’s office showed that the fourth defendant had a dummy account. This meant that when a lease has expired payments for the lease are put in a dummy account until a lease is issued. When he searched the third defendant’s statements on 13 October 2008, he found only three names. The fourth defendant’s name was not one of those names. He said it was assumed there was no lease as the third defendant’s rent statement named only three tenants on the subject land. The members of the mataqali, he said, identified 14 occupants on their lands, although the third defendant’s records named only three tenants. These occupants did not pay rent. Members of the mataqali were concerned that they did not receive payments for the use of their land. He wrote a letter to the third defendant on 25 July 2009. They replied by letter dated 5 August 2009. The letter said the matter was under investigation, and they would communicate with the witness. He has had meetings with the third defendant since 2009 in regard to the arrears of rentals. Mr. Bale complained that the third defendant generally failed to reply to the letters on the subject land.
  8. Ms. Sereana Tuisabeto said that the third defendant followed all processes in issuing the lease to the fourth defendant, and that these were processes that are usually followed prior to issuing a lease. Ms. Tuisabeto gave evidence on behalf of the third defendant. She works as senior estate officer compliance and risk at the central eastern region office. She was employed with the third defendant for 12 years. She gave evidence concerning the responsibilities of estate officers and the processes that are followed in granting agricultural leases. The witness explained the difference between a tenancy and a lease. An instrument of tenancy was issued in respect of agricultural leases that are not surveyed. When the land is surveyed, a registered lease is issued. The instruments are legally enforceable.
  9. Ms. Tuisabeto also gave evidence concerning the transfer of a lease. She explained that the land owners’ consent is not required to transfer a lease. The iTLTB gives consent on behalf of the land owners, in this case the mataqali of which the plaintiff is a member. A lessee has to sign in the presence of an estate officer. Estate officers have to check whether there are arrears of rent before they give approval for transfer of a lease. Consent would not be given when there are arrears. Once the application is approved, it is submitted for stamping and for registration at the titles office. Thereafter, the iTLTB amends its records.
  10. A point of contention was whether or not the fourth defendant settled arrears of rent at the time the lease was registered in 2014. The plaintiff and his witness, Mr. Bale insisted it was a requirement to have settled arrears before the lease could have been issued to the fourth defendant. The fourth and fifth defendants claimed that all arrears were settled when the third defendant issued and registered the lease, and also when it was transferred to the fifth defendant.
  11. Mr. Bale said it was necessary to obtain the consent of the iTLTB before transferring a lease. In this case, the lease was assigned by Mr. Nand Lal to Mr. Jay Kumar, as the assignee. Mr. Nadidi Taganiselala, who worked as an estate officer of the third defendant, signed his consent for the third defendant. Mr. Taganiselala is the second defendant. Mr. Bale said that the second defendant was the officer who looked after Bua, and that he was aware of the plaintiff’s occupation of the property. He had asked the witness to tell the plaintiff to remain on the property as he was the beneficial owner. He said he was in constant contact with Mr. Taganiselala as his uncle was not well educated, and he travelled from Suva to Labasa to meet the second defendant over a period of about a year. During that time, Mr. Bale said it was never disclosed that a new lease was issued. “We found out on our own”, he said. The second defendant never asked the plaintiff to leave the property. Later, the second defendant stopped meeting them and sent his boss for meetings. The boss said, “You stay here. We understand”.
  12. Ms. Tuisabeto admitted that Mr. Nand Lal made payment of the arrears after the order was advertised. Her explanation is that Mr. Nand Lal paid the charges mentioned in the offer letter, and the advertisement was to recover arrears of rent. Once offer charges are paid, the lease documentation is prepared for execution. In this case, she said, the offer was fully paid. Mr. Volai, who gave evidence on behalf of the third defendant confirmed that arrears of rentals must be fully paid before a lease could be issued.
  13. The third defendant’s witness, Mr. Volai admitted that there were payment references in connection with the land on 3 & 7 March and 20 June 2014. These dates were prior to the transfer of the lease. On those dates, Mr. Gupt paid the interest, premium and rentals. The plaintiff made out that a premium should not have been paid by Mr. Gupta in 2012 when the transfer was done on 25 June 2015. The plaintiff’s position was that the first, second and third defendants were aware that arrears of rental were not fully settled when they gave the lease to Mr. Nand Lal, and consented to the transfer of the lease. Counsel for the plaintiff suggested to the witness that even as at January 2016, long after the lease was issued to the fourth defendant, and sometime after, the lease was transferred to the fifth defendnt, the arrears were not cleared. She put it to Mr. Volai that there was collusion between Mr. Kuilamu, Mr. Taginiselasela on the one hand and Mr. Nand Lala and Mr. Gupt in order to prevent the plaintiff from receiving a lease for the land.
  14. The third defendant objected to statements of rentals being produced stating that the witness was not authorised to produce them and that the land was owned by three groups of mataqali. The discrepancy referred to by Mr. Bale seems relevant to the proceedings and the document was allowed to be admitted. The payments made by Mr.Jay Kumar Gupt were under his name. They were for interest and premium. From 2012 to 2015 the fifth defendant’s name was shown with reference to lease payments. However, Mr. Nand Lal’s name appeared in the third defendant’s records once again on 16 May 2016, Mr. Bale pointed out, although, by then, the property was already transferred to the fifth defendant.
  15. Mr. Nand Lal explained the inclusion of Mr. Gupt’s name in the statements of the third defendant, by saying that was because he had asked Mr. Gupt to make payment of rent. The payments were made as the third defendant had said it would take him to court. He said the premium had to be paid as the third defendant wanted payment. The third defendant had told him that the mataqali wanted payments for the land and that unless the arrears were cleared he could not sign the lease. He said that he received the instrument of lease after the fifth defendant paid off the outstanding rent dues. He signed the lease in the third defendant’s Suva office after the arrears of rent was cleared. Mr. Nand Lal denied there was collusion with the officers of the third defendant in obtaining the lease or in making the transfer to the fifth defendant.
  16. Witnesses on behalf of the third defendant said that it was necessary to settle arrears before the lease could have been issued. Ms. Tuisabeto’s testimony shows that Mr. Nand Lal did not clear all arrears before the lease documentation was prepared for execution. She corrected her testimony to state that the fourth defendant had paid the charges specified in the lease offer letter. Mr. Volai was shown a statement with Mr. Nand Lal’s name. This showed rent arrears of $216.17 as at 7 January 2016. The transfer date was 25 June 2015. Mr. Volai said that the arrears were not fully cleared as at the time the lease was given. Mr. Nand did not have a document stating that the arrears were cleared. Mr. Nand Lal said the government had paid $2,400 as arrears. He settled the remaining arrears. The third defendant confirmed that there was a special government scheme through which Mr. Nand Lal received funding for the lease payments.
  17. The third defendant’s position is that the fourth defendant applied for the lease, and paid the offer charges. The fourth defendant had benefited from a payment by the government under a special scheme made available to farmers. The third and the fourth defendants made reference to the special payment. Thereupon, he was issued a lease with effect from 2001. The third defendant submitted that the delay in issuing the lease was due to the fourth defendant not signing the lease agreement. In the meantime, the lease rents accrued. Until the lease was issued, the third defendant submitted, the fourth defendant was a tenant within the meaning of section 2 of the Agricultural Landlord and Tenant Act 1966. The fourth defendant, it was submitted by the third defendant, did not have an instrument until the lease agreement was issued in 2014. The third defendant submitted that it considered the fourth defendant to have had a lease since 2001.
  18. The evidence before court is that court proceedings were instituted by the third defendant against the fourth defendant when he defaulted in the payment of annual rent. Default judgment was entered against the fourth defendant on 25 September 2013 for the judgment sum and for vacant possession. The lease was issued to the fourth defendant on 14 July 2014. The plaintiff complained - not without reason - that after the lease was issued the court order was advertised on 27 September 2014 in the Fiji Sun newspaper. The plaintiff pointed out that this was strange, and that the court order had the effect of bringing any subsisting lease, given to the fourth defendant, to a halt. The third defendant explained that although default judgment was entered, it did not take steps to enforce the order to obtain vacant possession.
  19. Explaining the reason for not having obtained vacant possession of the land following eviction proceedings against the fourth defendant, the third defendant submitted that it has been lenient with tenants to allow them to settle arrears of rent. Vacant possession is pursued as a last resort as it was a costly exercise and not in the best interest of the landowners if arrears were to be written off as bad debts. Ms. Senimalia Karikaritu, who worked as a litigation assistant of the third defendant said that vacant possession was a last resort as it was costly to enforce. Vacant possession is unnecessary, she said, if the tenant is willing to pay.
  20. How the third defendant should set about to recover arrears of rent is an internal matter for the third defendant with which the court will not ordinarily interfere. Mr. Bale admitted that the third defendant has its own processes. He agreed that the lease is granted to a person the third defendant considers to be suitable. He, however, disagreed that Mr. Nand Lal was a suitable candidate for the lease.
  21. Mr. Bale said that the plaintiff was on several occasions told by the second defendant to remain on the land. The second defendant, he said, acted on behalf of the third defendant. It is difficult to make sense why the second defendant, as estate officer, signed and consented to the transfer of the lease to the fifth defendant, while asking the plaintiff to remain on the same property, as claimed on behalf of the plaintiff. The second defendant did not give evidence. Counsel for the third defendant told court that the second defendant had left employment, and efforts to subpoena him were not successful. Evidence given on behalf of the third defendant was that Mr. Taganiselala was employed by the iTaukei Land Trust Board in 2014 and his services were terminated in 2019. The first defendant, Mr. Viliame Kuilamu, also did not give evidence. He submitted a medical certificate. The third defendant said that Mr. Taganiselala started as a temporary officer in 2006 and was appointed an estate officer in 2012. According to the third defendant, Mr. Kuilamu was the estate officer at the time the registered agricultural lease was issued.
  22. The third defendant contested the plaintiff’s claim that Mr. Joseva Lalabalavu advised the plaintiff on behalf of the third defendant in 2008 to apply for a lease. The evidence given by Mr. Vakabua on behalf of the third defendant was that Mr. Lalabalavu commenced working as a project officer at the Labasa office from 2016. The third defendant’s witnesses, Mr. Volai and Mr. Epeli Tawake told court that they were unaware that the plaintiff applied for a lease No copy of the plaintiff’s lease application was made available to the court.
  23. In her judgment, the master quoted with approval this passage by the High Court of Australia in Stuart v Kingston[2],

“Fraud will no longer be imputed to a proprietor registered under the Act unless some consciously dishonest act can be brought home to him. The imputation of fraud based upon the refinements of the doctrine of notice has gone.”


The master also referred to the passage in Waimiha Sawmilling Co. Ltd. V. Waione Timber Co. Ltd.[3] In which the Privy Council held:


“If the designed object of a transfer be to cheat a man of known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear ... The act must be dishonest, and dishonestly must not be assumed solely by reason of knowledge of an unregistered interest”.

  1. The fourth defendant’s title derived legitimately from a registered lease. The lease was assigned with the approval of the third defendant. The plaintiff and his witnesses referred to shortcomings in the third defendant’s record keeping and internal processes. Those administrative deficiencies, even irregularities, in the circumstances of this case, do not constitute fraud. Although the required standard of proof is on a balance of probability, the degree of proof needed to establish fraud is high. A court must be satisfied that evidence can be given a high degree of weight to establish fraud. In this case, the plaintiff has not produced evidence to satisfy court that there was fraud and collusion among the defendants in effecting the impugned conveyances. There is no consciously dishonest act on which the court can act. The plaintiff has failed to establish that the registered lease granted to the fourth defendant and the assignment to the fifth defendant were fraudulently effected.
  2. In the circumstances, the question of vicarious liability does not arise.

Counterclaim

  1. Mr. Nand Lal sought damages in a sum of $90,000. He said he would have earned this sum by farming sheep. He left Suva in 2007, returned to the land in 2008 and worked at the Water Authority until 2009. He left again to Suva with his wife in 2011 to make some money in order to pay his lease rentals. He said he did not rent his house when he left. He intended to return to the land once he made some money. This, however, did not happen. He said he was not allowed to farm anything on the land by the plaintiff. The third defendant told him not to farm and his lease was formally issued. Some of his sheep were harmed. These factors prompted him to leave. Mr. Nand Lal counterclaimed for damages on the basis he could have earned $20,000 annually for the period 2011 to 2014.
  2. The fourth defendant said he was able to earn $5,000 to $6,000 from rice farming annually. He generated a similar sum from cattle farming. He said there were two houses on the land: one for his mother and the other for himself. He resided on the property until 2008. He did not give his house on rent. He intended to have 100 goats and 30 cattle on the land. The price of a male goat, he said, was $200 to $250 and a female goat was almost $100. Cattle was valued at $1000 and $500 for the male and female respectively. He said he was terminated from the water authority in 2010. He had to stop cattle farming before he left for Suva as the animals were harmed.
  3. He agreed that his profit estimates were not based on actual figures. As he himself admits, Mr. Nand Lal’s claim is based on assumptions. The evidence does not bear out that he was able to make anything close to the annualised sum even before his troubles at the land began. Bank statements and tax computations could have helped project his earnings before he left Bua. He said he had applied for a loan to FDB. However, evidence of the loan application was not available.
  4. Mr. Nand Lal’s evidence on whether the plaintiff disrupted his farming activity is not entirely consistent. He said the plaintiff stopped him from farming as he did not have a lease. Moreover, the plaintiff demanded for his share when he had cattle and cultivated vegetables. Prior to leaving his land he said he was engaged in rice farming as well as cattle and goat farming. He was able to carry out farming through an irrigation system on the farm.
  5. Mr. Lal, however, conceded that he was not farming the land when he left Bua. This was because the third defendant and the plaintiff had told him that he could not do any farming until he obtained a new lease.
  6. Mr. Nand Lal initially said he was chased out of the property. In later evidence, he conceded that the plaintiff did not chase him or his mother from the property. He also said that while his mother resided on the property, they had a good relationship with the plaintiff. He left as he could not cultivate and animals on his land were getting killed. He did not name a suspect for these killings.
  7. The fourth defendant stated in his evidence that both the plaintiff and the third defendant had asked him to avoid cultivation on the land. His evidence is that he left for Suva to make some money and pay the arrears of rent. He did not return to the land after leaving Bua in 2011. The lease was issued to him in 2014, and this was transferred in 2015 to the fifth defendant. No intention to return to Bua and farm the land can be inferred from the circumstances. There is no evidence that the plaintiff caused him the alleged financial losses.
  8. The fourth defendant’s counterclaim is declined.
  9. Mr. Jay Kumar Gupt, the fifth defendant, said he ran a business in Samabula. The business, a limited liability company, related to computers and printers. He was originally from Vunivau, Bua. Mr. Gupt said he was from the area and was familiar with the land. He said he stayed in the area where the land was situated until 1997 before moving to Suva.
  10. Mr. Gupt said that after purchasing the land he went to meet the plaintiff accompanied by a police officer. This was because the witness was not fluent in the iTaukei language. The plaintiff had agreed to move out and asked for time to relocate. He also agreed to let the witness cultivate the land. Mr. Gupt, thereafter, returned to Suva. He had arranged a tractor from the Ministry of Agriculture to plough the land. However, the tractor operator was not allowed to prepare the land for cultivation.
  11. The plaintiff admitted that when the fifth defendant’s father came to plough the land, he did not allow him to do so as he was unaware that the land was owned by the fifth defendant. The plaintiff said in his testimony that he did not know that the land was owned by the fifth defendant. This was confirmed by Mr. Bale in his evidence. He admitted that the plaintiff did not allow the registered proprietor of the land to cultivate the land. He agreed that when the fifth defendant’s father tried to bulldoze the land, the plaintiff stopped him from doing so. He agreed that the plaintiff did not allow rice farming to be carried out.
  12. Mr. Gupt said he purchased the land from Mr. Nand Lal to carry out sheep farming. He was unsure of the price of rice at that time, but planned to cultivate rice over 5 acres. He said he expected an annual profit of about $15,000 to $20,000 over a 10 year period. He said that the initial few years would not have been that profitable. However, he planned to acquire as many sheep as would be possible within the land. He said he was a businessman and that he had a business plan to utilise farming equipment to carry out farming on the land. However, he has not been able to generate any income to-date. The plaintiff and his sons prevented him from farming, he said. He estimated lost income from 2015 to the date of the trial to be $50,000 to $60,000.
  13. Mr. Gupt said that 5 acres of the land could have been used for rice farming, and about 15 acres for grazing. Sheep or other livestock farming was possible on the land. In the 1980’s and 1990’s the land was used for rice farming. At the time of giving evidence he said the price of a tonne of rice was $800. He had not done sheep farming previously. He knew the price of sheep in Suva at $250 to $300. His figures, he said, are based on assumptions as he had not been able to use the land.
  14. Mr. Bale disputed that an annual income of $20,000 from rice farming was possible. He said he has a farm. He said rice in the region could be planted once and an annual income of $5,000 was possible. He conceded it was possible to generate an average annual income of $20,000, when cattle is considered. The witness noted that water was available on the land. In cross examination it was put to him that 20 cattle could be allowed to graze on the land and each sold for $1,000.
  15. Damages must be proved, and for the purpose of computing damages income and expenses must both be considered. Mr. Gupt acknowledged that the initial few years would not have been that profitable. He did not provide a profit estimation of those initial years. A forecast profit statement based on historic figures or realistic assumptions would have assisted court in this exercise. In the absence of specific detailed information from the fifth defendant, the court considers it reasonable to use the figures provided by the plaintiff’s witness, Mr. Amani Bale. He said it was possible to earn an annual profit of $5,000. This sum can be taken as the base profit after setting off farm related expenses including wages. Mr. Gupt admitted that it was not possible to make much profits initially. This can be a reasonable basis of awarding damages.
  16. I am inclined to accept Mr. Nand Lal’s evidence that Mr. Gupt was aware that the subject land was occupied. The plaintiff said he was unaware of the transfer of the lease to the fifth defendant. However, once the plaintiff was sent a quit notice, it was reasonable for the registered proprietor to have an expectation of possessing the land. Even if the plaintiff was unaware of the fifth defendant’s rights to the land, the eviction order by the master of the High Court was sufficient proof that the fifth defendant was the registered proprietor.
  17. In the action before the master, the plaintiff in this case denied receiving a notice to quit. The court held there was no tenancy between the parties and dispensed with the requirement for notice. The master’s order was made on 24 October 2018. It is reasonable to award damages to the fifth defendant from the date of the master’s order.

Eviction order

  1. Counsel for the fourth and fifth defendants submitted that the High Court made eviction orders against the plaintiff pursuant to an application under section 169 of the Land Transfer Act 1971. In Gupt v Baleitavua[4], the master of the High Court at Labasa by order dated 24 October 2018 ordered the defendant in that action to deliver to the plaintiff immediate vacant possession of the property contained in iTaukei Lease No.31557 in the Navotua subdivision, showing lot 3 on plan No.B.220. The master rejected the defence of fraud. Counsel submitted that the plaintiff in that case is the fifth defendant in this action, and the plaintiff in this action was the defendant in the matter before the master.
  2. The master’s eviction order was appealed to the High Court. However, the appeal was deemed abandoned. Amaratunga, J, in Gupt v Baleitavua[5], struck out the motion seeking a stay of the master’s decision. The High Court stated that the plaintiff in that action proved his title and the defendant failed to prove any right to the property.
  3. Counsel for the plaintiff did not deny that the parties to the action and the subsequent appeal proceedings in the High Court at Labasa were the fifth defendant and the plaintiff in this case. Nor was it denied that the eviction action filed by the fifth defendant against the plaintiff was successful. When Mr. Chand brought the two decisions to the notice of court at the commencement of trial, Ms. Sauduadua submitted that those determinations related to a summary application under section 169 of the Land Transfer Act, and that the plaintiff proposes to establish fraudulent transfers of the land through evidence at the trial.
  4. The plaintiff admitted that there was a court order for his eviction. He said he was asked not to vacate the land by his brother's son, Mr. Amani Bale. The plaintiff said that Mr. Bale is his lawyer. The plaintiff conceded that the third defendant did not advise the plaintiff to reside on the property. He said he became aware of the lease at the time he was issued notice. This may be a reference to the notice for eviction issued by the fifth defendant.
  5. Mr. Bale said his firm, Lal Patel Bale Lawyers, was representing the plaintiff. He was a partner of the firm. He said he played an active part in the case. His name is recorded as the plaintiff’s counsel before the master in the present action. Mr. Bale stated that he did not advise the plaintiff to remain on the land. From 2008 until this action was filed in 2017, his uncle stayed on the land on his own volition, he said. Mr, Bale admitted that he was providing legal advice to the plaintiff. He said the plaintiff went to the land when Mr. Nand Lal went to Suva leaving behind his mother. Mr. Bale said that he did not advise his uncle to move into the land in 2008. He said the plaintiff entered the land on his own as the beneficial owner. At that time the rental payments were not coming and the mataqali were affected, he said. He wrote to the third defendant. They responded that the matter would be investigated. Thereafter, it was found that the land was illegally occupied.
  6. When questioned, during cross examination, about his advice to the plaintiff to not vacate the land, Mr. Bale explained that he advised the plaintiff that he could not succeed in the section 169 action. He had advised him to move from the land if the plaintiff did not succeed in the present action, and to stay on until the conclusion of these proceedings. Mr. Bale admitted that if a court order was not complied with, there could be a charge of contempt. As an officer of court, Mr. Bale was on fraught territory. The matter rests at that.

Costs

  1. The plaintiff must bear the consequences of filing an action without legitimate interest in the land, and notwithstanding the orders made by the master for his eviction, which was affirmed by the High Court. Orders are made for the plaintiff to pay costs to the third, fourth and fifth defendants in an aggregate sum of $5,000.00 as specified below. The court considers it reasonable to award reduced costs to the third defendant, a state entity with its own resources. The first and second defendants are not awarded costs as they did not attend court and their interests were looked after by the third defendant.

ORDER

  1. The plaintiff’s action is dismissed.
  2. The fourth defendant’s counterclaim is declined.
  1. The fifth defendant is awarded damages at the rate of $5,000 per annum from 24 October 2018.
  1. The plaintiff is directed to pay costs summarily assessed in a sum of $2,000.00 each to the fourth and fifth defendants, and $1,000.00 to the third defendants.

Delivered at Suva on this 31st day of January, 2022


M. Javed Mansoor
Judge


[1] [2018] FJHC 1030; HBC 2.2018 (24 October 2018)
[2] [1923] HCA17; [1923] 32 CLR 309
[3] [1926] A.C 101
[4] [2018] FJHC 1030; HBC 2.2018 (24 October 2018)
[5] [2019] FJHC 7; HBC 2.2018 (23 January 2019)

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