Jainab ats. Police [1934] FJLawRp 2; [1875-1946] 3 FLR 156 (7 February 1934)

SUPREME COURT OF FIJI

Appellate Jurisdiction

JAINAB

ats

POLICE

Maxwell Anderson, C.J.

February 7, 1934

Prosecution under Native Trespass Ordinance^[1] — Claim to title by defendant — whether a claim to title ousts Magistrate's jurisdiction in proceedings under the Native Trespass Ordinance.

Jainab, who was the lessee under a lease for 21 years of certain native land, which expired on January 18, 1933, applied for an extension in June, 1932—six months before the date of expiration of the lease—under s. 15, Native Lands Ordinance, 1905. A valuation of the improvements was made in December, 1932, shortly before the expiration of the lease, and the value was fixed at £68. Jainab continued to occupy the land after the expiration of the lease, but the native owners refused to give an extension of the lease. On March 20, 1933, the Governor in Council made an order for the native owners to pay £68 compensation within four months. On July 5, 1933, Jainab tendered £5 Is. 3d., a year's rent, to the District Commissioner, Rewa.

On July 17 the native owners paid £68, the valuation of the improvements, to the District Commissioner, who then applied £2 l0s. 8d. of Jainab's payment for six months' rent, returning £2 l0s. 7d., and told Jainab she must leave the land, offering her at the same time the said £68. Correspondence then ensued between the appellant, the Commissioner of Lands and the Acting Attorney-General in course of which Jainab claimed that by virtue of s. 17, Native Lands Ordinance,^[2] she was a tenant from year to year, that the compensation paid was inadequate and by a last letter dated 20th October, 1933, it was suggested by Jainab that the question of title should be determined by the issue of a writ for ejectment.

On 28th October 1933 the Secretary for Native Affairs issued to Jainab an order purporting to be issued under the authority of s. 2 (c), Native Trespass Ordinance.^[3] Jainab did not comply with the order and proceedings were taken against her under the aforesaid s. 2 (c). At the hearing before the District Commissioner, Rewa, Jainab contended that she was in occupation of the land by virtue of a bona fide title or claim to such and that accordingly the jurisdiction of the Magistrate was ousted. The Magistrate rejected this contention and convicted appellant. She was fined £3 5s. od., or in default of payment two weeks imprisonment with hard labour and ordered to vacate the land within four weeks, failing which she would be removed by force.

HELD.—(I) The Magistrate's jurisdiction in criminal proceedings is ousted where there is a bona fide claim to title.

(2) The provisions of the Native Trespass Ordinance do not apply to cases where a quetsion of title is involved.

[EDITORIAL NOTE.—The Native Lands Ordinance, 1905 has suffered many amendments since this judgment. S. 17 of the Ordinance, on which the appellant's claim to title was founded was as follows:—

"In the event of any lease the extension of which is desired expiring prior to or during any negotiations for its extension instituted under this Ordinance then and in such case the lessee thereof shall be deemed to be and shall enjoy all the privileges of a tenant from year to year upon the terms and conditions contained in the expired lease until the conclusion of any such negotiations so instituted as aforesaid."

The section does not appear in Cap. 85 (Native Lands Ordinance) or Cap. 86 (Native Land Trust Ordinance).

The judgment does however determine the nature of proceedings under s. 2 of the Native Trespass Ordinance (Cap. 87) which is substantially the same as s. 2 of the Native Trespass Ordinance, 1889. In the judgment this section is referred to as "in effect a special extension to native lands merely of s. 62 of the Summary Conviction Offences Ordinance". S. 62—(I) of the Summary Conviction Offences Ordinance, 1876 (Repealed) was as follows:—

"(1) Every person shall be liable to a penalty not exceeding twenty pounds and in default of payment to be imprisoned with or without hard labour for any period not exceeding three months if he shall unlawfully persist in coming or remaining upon any plantation land or premises after being warned not to come thereon or to depart therefrom.

"(2) Any person found in any dwelling-house or in any verandah or passage attached thereto or in any yard garden or other land adjacent to or within the curtilage of such dwelling-house with intent indecently to insult or annoy any female inmate of such dwelling-house shall be liable on conviction to imprisonment not exceeding twelve months with hard labour and may further be ordered to be privately whipped. Provided that no such whipping shall take place without the previous consent in writing of the Governor."

This type of criminal trespass is recognised by the Penal Code—vide Cap. 5 s. 209.]

Cases referred to:—

R. v. Stimpson [1863] EngR 740; [1863] 32 LJ MC 208; 9 Cox CC 356; 8 LT 536; 122 ER 472; 33 Dig. 339.

G. F. Grahame for appellant, after outlining the facts submitted that the lower Court had no jurisdiction. The claim to title was bona fide and made under s. 17 of the Native Lands Ordinance. Negotiations were still proceeding under s. 17. Criminal proceedings could not lie where there was a bona fide claim to title. He cited R. v. Stimpson [1863] EngR 740; 32, LJ MC 208.

The Attorney-General (R. S. Thacker), for respondent.—There was no bona fide claim to title. Appellant merely wanted more compensation and so remained on the land after her title was extinguished. The only law that can be applied to her rights is s. 17, Native Lands Ordinance, which says that a tenant shall enjoy privileges of a tenant from year to year until the negotiations are completed. The negotiations finished with the offer of the compensation in July, 1933.

The Court.—The section says "shall be deemed to be and shall enjoy all the privileges," & c.

The Attorney-General.—That is only until negotiations cease—then there is no need of a six months' notice, the tenancy ceases with the close of the negotiations. The Magistrate was right in deciding that there was no bona fide claim to a title, the whole crux of the situation was a demand for more money and the magistrate so decided after hearing both sides. It is clear that if more money was paid appellant would have left the land.

The Court.—That might merely amount to waiver. But can a person holding over be liable for criminal trespass? Is not the remedy and action for ejectment?

The Attorney-General.—The procedure in this case may be unusual but it is quite legal. Appellant was a trespasser from the expiration of the negotiations and can be properly prosecuted under the Native Trespass Ordinance. Every step taken was perfectly valid and the conviction is good.

Grahame (in reply).—The argument of the learned Attorney-General depends on his interpretation of s. 17. We do not agree with that interpretation and there arises our claim. The dispute is bona fide in regard to a title to land, and accordingly criminal jurisdiction is ousted.

MAXWELL-ANDERSON, C.J.—In the view which I take of this case it becomes unnecessary to decide the true interpretation of s. 17 of the Native Lands Ordinance. The correspondence between the legal advisers of appellant and the Crown shows clearly that rightly or wrongly appellant held that she had become a tenant from year to year and despite the fact that she was pressing for further compensation I must hold that her claim was made bona fide and accordingly could only be determined in this Court. It is not clear how the Secretary for Native Affairs was brought into the matter but it is to be observed that while the notice or warning issued by him is headed under the Native Trespass Ordinance it speaks of steps being taken for "your ejectment" and does not appear to conform to the provisions of the Ordinance.

Apart from this I am of opinion that the Native Trespass Ordinance which is in effect a special extension to native lands merely of s. 62 of the Summary Convictions Offences Ordinance^[4] does not apply to cases such as that now before the Court where a question of title is involved but is intended to deal with what I term a "squatter trespasser."

It is perhaps somewhat unfortunate that this case in the first instance was heard before a District Commissioner who was largely concerned in the negotiations ab initio and who had himself ordered the appellant to leave the land, but that was perhaps unavoidable. I have come to the conclusion that there was a bona fide dispute as to title which ousted the jurisdiction of the Magistrate and further that the provisions of the Native Trespass Ordinance do not apply in this case. I desire to make it clear that it is within the jurisdiction of the Magistrate to decide whether or not a claim of right is made bona fide and his decision on that point is appealable as any other decision. This appeal will therefore be allowed and the conviction and sentence set aside. In deference to the argument of the learned Attorney-General I wish to make it clear that I decide this case solely on the grounds above stated and I decide nothing as regards the construction of s. 17 of the Native Lands Ordinance (the meaning of that section must be decided, if necessary, in other proceedings) nor do I express any opinion on the validity or otherwise of the appellant's claim to a tenancy.

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^[1] Cap. 87.
^[2] Vide Editorial Note.
^[3] Cap. 87.
^[4] Vide Editorial Note.