Niranjan & Sons v Attorney-General [1957] FJLawRp 13; [1956-1957] 5 FLR 78 (31 July 1957)

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Claim against Crown for Relief against Forfeiture of a Crown Lease-Crown Lands Ordinance, (now Cap. 138) sections 15 and 38-Land (Transfer and Registration) Ordinance, Cap. 120 (now Cap. 136) sections 2 and 50.

The Crown granted a Crown Lease to the plaintiff. One of the conditions in the lease was that the plaintiff would by 1953 erect a building on the land to the value of £2,500. On 8th February, 1956, the Director of Lands gave notice to the plaintiff to comply with this condition within 4 months, failing which he would forfeit the lease.

Held.-(1) Four months was not a reasonable period of notice to give for the erection of a building worth £2,500.

(2) The lessor had not recovered possession of the land to the physical exclusion of the lessee and there had therefore been no proper re-entry by the lessor.
(3) Failure to enforce a building covenant is not a waiver of forfeiture.

(4) An action may be taken against the Director of Lands for relief against forfeiture without the need to prove malafides, notwithstanding the provisions of section 30 of the Crown Lands Ordinance.

Tattersalls Penrith Pty. Ltd. v. Permanent Trustee Co. Ltd., [1942], 42 SR 104, 59 WN 62.

(1) A declaration that the notice dated 8th February, 1956, issued by the Director of Lands to the plaintiffs, requesting the plaintiffs to construct a building on Lot 7, Suva foreshore, in the district of Suva, comprised in Crown Lease No. 2411, within four months, was invalid and bad.

(2) A declaration that the Director of Lands did not lawfully re-enter and recover possession of Lot 7, section 88, Suva foreshore, in the district of Suva, comprised in Crown Lease No. 2411.

The plaintiffs also claimed an injunction against the Registrar of Titles to restrain him from proceeding to register by notation on the lease, re-entry of Crown Lease 2411 by the Director of Lands, and from cancelling the Crown Lease.

Alternatively, the plaintiffs claim an order for possession and relief against forfeiture of the Crown Lease. Costs are also claimed.

In the statement of claim subsequently filed, the plaintiffs allege that the notice of 8th February was bad in that it did not give the plaintiffs reasonable time within which to have plans prepared and passed, and to make arrangements for the plaintiffs to complete a building. They also claim in paragraph 11 of the statement of claim that the Director of Lands did not lawfully re-enter upon the Crown Leasehold and recover possession thereof.

They claim further that they are still in occupation and possession of the land; that the land is required by them as a parking area; that notice of non-compliance with the building covenant, and of the requirement to build was not given to the mortgagee, the Bank of New Zealand; and that the loss of the land would cause them great hardship and loss.

They also allege they are willing to complete the building and that they can do so within five months.

The defendant denies that the notice of 8th February was bad, and avers that the Director of Lands, by his servant or agent lawfully re-entered on the said land and recovered possession, and that the Director of Lands is in lawful possession of the land. It is denied that the plaintiffs are entitled to the declaration asked for and the relief claimed. Alternatively defendant claims that the plaintiffs have been guilty of laches.

The plaintiffs are service station proprietors, public service vehicle proprietors, carriers and motor body builders, and that the plaintiffs are registered proprietors as lessees of an area of land at Walu Bay known as Lot 7 section 88, Suva foreshore, containing 38.9 perches and comprised in Crown Lease 2411.

The circumstances leading to the acquisition of the land are detailed by Mr. Niranjan, who, however, is not one of the lessees, but is Managing Partner of the firm. The lease is in the name of his mother and brothers. Mr. Niranjan said the firm had a parking place at Tamavua on two acres of crown land. They had held this land for fifteen years. They were asked by the Crown to vacate the land as it was required for Government purposes. The request was made by Mr. Buckhurst, then Director of Lands. The plaintiffs were advised to apply for land at Walu Bay. They applied and got land accordingly, namely Lot 7, Crown Lease 2411.

This land was not suitable for the purpose for which they required it and they obtained other land in addition, on the road side. It was said by Mr. Niranjan in evidence that he was informed by Mr. Buckhurst that the department would not force them to build on Lot 7 because plaintiffs really needed it more for parking purposes than anything else.

Subsequently, Mr. Niranjan, according to his evidence, told Mr. Buckhurst that they had already spent £800 on the service station building, although there was no reference to this in correspondence-Mr. Niranjan relying on personal contact. Mr. Buckhurst left the Colony but, according to Mr. Niranjan, he said he would pass on information as to the position to Mr. Cole who was taking over from him. Mr. Cole never at any time requested the plaintiffs to comply with the building covenant.

It is not disputed that plaintiffs failed to comply with the building covenant by which the plaintiffs were required to erect a building to the value of not less than £2,500 before the 30th August, 1953.

On or about 8th February, 1956, the Director of Lands wrote a letter to the plaintiffs as follows:

"		4/16/2751
		8^th February 1956.
Messrs. Niranjan & Sons
Walu Bay,
Suva

Dear Sirs,
Re Crown Lease 2411 Lot 7 Section 88 Walu Bay
The terms of the lease require that a building of not less than £2,500 in value shall be constructed on the lot before 30th August, 1953. You have not complied with this condition. In accordance with section 50 of the Land Transfer Ordinance, I hereby give you four (4) months in which to remedy this breach. Unless a building worth a minimum value of £2,500 has been constructed on this lot to my satisfaction before the 7th June, 1956, I shall take steps to re-enter the lease without further notice.
	Yours faithfully,
	(sgd.) D.T.Lloyd ”

When notice of 8th February was received, Mr. Vishnu Deo and Mr. Niranjan went to Mr. Lloyd, the present Director of Lands, to explain how they had obtained the land and the reason why no building had yet been put up. Mr. Lloyd, according to Mr. Niranjan, was not prepared to discuss the matter with them as he was already negotiating with the plaintiffs' solicitor, Mr. McFarlane.

There is no written record of any permission to waive or defer compliance with the building covenant, and it is difficult to accept that any such permission was in fact given, although an inference that there was such permission cannot be ruled out entirely, in view of the fact that no action was taken by the Director of Lands to enforce the covenant.

On or about the 13th June, 1956, the plaintiffs received the following letter from the Director of
Lands:

"		4/16/2751
		13^th June, 1956

Gentlemen,
	Re-entry of Crown Lease No. 2411

I attach hereto a copy of re-entry Notice posted on 13th June, 1956 on Lot 7, section 88, Suva foreshore, for non-fulfilment of the building conditions, Clause 3 of your lease

2. Take notice that you are hereby requested to clear and remove all items stored by you on the above land within 30 days and leave the land in good order and condition.

3. Should you fail to do so I shall take steps to clear the land and charge you with the costs of clearing.

	Yours faithfully, (sgd.) D.T. LLoyd
	Yours faithfully, (sgd.) D.T. LLoyd

The enclosure was the usual notice that the Director of Lands had entered on the land.

As I have said, it is not disputed by the plaintiffs that they failed to comply with the building covenant, nor is it disputed that the plaintiffs paid, and the Director of Lands accepted, rent for the years 1954, 1955 and 1956.

On receipt of the notice from the Director of Lands calling his attention to the failure to build in accordance with the building covenant, the plaintiffs approached Mr. C. P. Bidesi, a witness for the plaintiff, with a view to having a building erected to cost £5,000.

Mr. Bidesi endeavoured to obtain copies of plans suitable for the type of building required, borrowing them from Mr. S. P. Bidesi, and with the help of Mr. Askelin plans and specifications were prepared. The plaintiffs had first of all, however, to approach the Bank to obtain a loan for building purposes. Negotiations for financing the building operations having been completed, the plans and specifications were prepared some time in April and submitted to the City Council who ultimately issued a Building Permit dated 2nd June, 1956.

In all this time the plaintiffs made no approach to the Director of Lands, either asking for an extension of time or to tell him that delays were being experienced. Very little work had been done by the due date.

On the 4th June, 1956, Mr. Bidesi received from Niranjan and Sons the sum of £500 being a deposit to build a store at Walu Bay on section 88, Lot 7. There were on the premises certain bricks which had been made by the plaintiffs' employees and work began on the 5th June, 1956.

This however, was only eight days before the expiration of the notice given to the plaintiffs by the Director of Lands. On the 6th June, the plaintiffs wrote to the Director of Lands as follows:

"		6^th June, 1957.

The Director
Land and Survey Department
Government Building
SUVA

Reference your letter 4/16/2751 dated 8th February, 1956, re Crown Lease No. 2411 Lot 7 section 88 at Walu Bay.

We wish to inform you that we have already started building on Lot 7 section 88 from the 5th June, 1956.

Thanking you in anticipation,

	Yours faithfully,

	Niranjan & Sons"

Evidence was given for the defence by Mr. Walker, a surveyor of the Lands Department, that he, armed with a re-entry notice, went to Lot 7. He posted up the form but next day it was discovered that he had not posted it on Lot 7. On the 14th June, said Mr. Howard Bridges, another member of the Survey Department, he, Mr. Bridges, went to take photographs on the land. He found the re-entry notice on the Freeston Road reserve and not on Lot 7. He removed it and re-affixed it to a building which was on Lot 7, thereby thinking that he had effected a proper re-entry.

For the defence, evidence was also given by Mr. John Douglas Wright, an assistant works study engineer, in the Public Works Department. He gave it as his opinion, that the work of erecting a building of the type which the plaintiffs proposed to erect, could be completed within nine weeks. He submitted a works scheme in which there would be an average of seven and a maximum of twelve men working, and he allowed for 5½ days work per week.

He admitted, however, that in saying that the building could be erected in nine weeks, he was not including the drawing of the plans, nor the time spent in getting approval from the Council. The time to which he referred is the time which the actual construction would take. He allowed for normal delays he said, but he did admit that timber, cement, and reinforcing steel would come from abroad and that there might be some delay in obtaining the windows. He contended that he was allowing for normal working conditions in Fiji when he estimated that the time would take nine weeks.

In addressing the Court Mr. Lewis first took certain objections in law before proceeding to deal with the law applicable to the case generally.

He quoted Buller and Leake 10th Edition p. 50, in support of his right to raise points of law at that stage. He cited the following:

"Either party is entitled to raise on his pleading any point of law and in a proper case to have it argued and disposed of before the trial."

This was not done in the present case, but still citing from Buller and Leake at p. 50, he submitted further that-

"Neither party is bound to place on his pleading an objection on a point of law. Order XXV Rule 2 merely says that he shall be entitled to do so. At the trial he may urge any point of law he likes whether raised on the pleading or not ...

If the defendant wants to avail himself of his point of law in a summary way he must demur, but if he does not demur he does not waive an objection and may say at the trial that the claim is bad on the face of it."

First, he referred to section 30 of the Crown Lands Ordinance which reads as follows:

"Neither the Director of Lands nor any authorized officer shall be liable to any action suit or proceedings for or in respect of any act or matter bona fide done or omitted to be done in the exercise of the powers conferred by this Ordinance."

The Solicitor-General submitted, and I agree, that the indemnity granted to the Director of Lands by that section extends to the Attorney-General because the Attorney-General, since the enactment of the Crown Proceedings Ordinance, is the defendant in all proceedings against the Crown.

Mr. Lewis has submitted that the meaning of the section is that if one brings an action against the Director of Lands (or the Attorney-General) one must allege fraud or a matter which is not bona fide and that inasmuch as fraud is not pleaded, the plaintiffs cannot rely on it. He suggests the only matter that can be alleged against the Director of Lands is that he acted improperly in informing Niranjan Singh Niranjan he need not observe the provisions of the covenant and then reversed that policy and sent him the notice of 8th February.

Mr. McFarlane, for the defence, submits that if this view is correct, it would lead to an absurdity and that one could in no case bring an action against the Director of Lands. His submission is that he cannot be personally sued for, say, a trespass, and he submits further that if the Solicitor-General is correct, it would mean that it would be impossible to bring an action against the Director of Lands for relief against forfeiture. He contends action is not taken against him for something bona fide done and the action, he says, is not against the Director of Lands personally but in his official capacity.

I have carefully considered the submissions of counsel and I do not think the section is capable of the construction placed upon it by the Solicitor-General. I am inclined to the view that it means that the Director cannot be held personally liable. Furthermore, the notice issued by the Director of Lands is issued under section 50 of the Land (Transfer and Registration) Ordinance (Cap. 120) in which a distinct right is given to the lessee to apply to the court for relief, where a lessor is proceeding to enforce a right of re-entry or forfeiture, either in the lessor's action or in an action brought by himself, i.e. the lessee.

A lessor is simply defined in section 2 of the Ordinance as "the proprietor of the land leased".

I am of the opinion, therefore that it could never have been intended that a tenant's right to claim relief against forfeiture should be taken away, whoever the lessor might be.

The second legal objection is based on section 15(1) of the Crown Lands Ordinance. Section 15(1) reads as follows:

"Whenever in any lease under this Ordinance there has been inserted the following clause:

'This lease is a protected lease under the provisions of the Crown Lands Ordinance, 1945',

(hereinafter called a protected lease) it shall not be lawful for the lessee thereof to alienate or deal with the land comprised in the lease or any part thereof, whether by sale, transfer or sub-lease, or in any other manner whatsoever, nor to mortgage, charge or pledge the same without the written consent of the Director of Lands first had and obtained nor, except, at the suit or with the written consent of the Director of Lands, shall any such lease be dealt with by any court of law or under the process of any court of law, nor, without such consent as aforesaid, shall the Registrar of Titles register any caveat affecting such lease.

Any sale, transfer, sub-lease, assignment, mortgage or other alienation or dealing effected without such consent shall be null and void."

It is submitted by the Solicitor-General that there is no evidence that the plaintiffs had obtained the consent of the Director of Lands to bring this action and that therefore the court has no jurisdiction to entertain the plaintiffs' claim.

Counsel for the plaintiffs, in reply, referred to the case of the Registrar of Titles re Filimone and Jaimal, 3 FLR p. 208. The facts in that case are briefly that Filimone was a lessee of a crown lease which was a protected lease under the Crown Lands Ordinance 1888. Two judgment creditors of Filimone applied for entry of notice of eight judgments on the lease without first obtaining the consent of the lessor, i.e. the Director of Lands, to such entry. It was held that the judgment creditors could not have notice of judgment entered on leases protected under the Crown Lands Ordinance 1888 without the consent of the Commissioner of Lands. Section 9 of the Crown Lands Ordinance 1888 is in substance the same as section 15 of Crown Lands Ordinance 1945.

I agree with Learned Counsel that the words in the Filimone case mean that no judgment of a court can affect a protected lease unless the Director of Lands consents. In the Filimone case, the Director of Lands had not consented to the judgment of the court and the caveat was therefore ordered to be removed.

The object of section 15, as I see it, is to prevent any alienation or the creation of encumbrances in relation to the land, by the lessee, without the consent of the Director of Lands, and that no action arising out of any such alienation or encumbrances can be entertained by a court without the consent of the Director of Lands. I cannot agree that the section precludes the bringing of an action against the Director of Lands himself in any circumstances whatever. If this were the intention, I think it would have been stated by the Legislature in unequivocal language.

It seems to me that when section 15 refers to "such lease" in the twelfth line of the section, it is referring only to leases in respect of which the lessee has done one of the things enumerated in this section.

In the present case, the lessee has done nothing-either by way of alienation or by the creation of encumbrances in relation to the land, and no consent by the Director of Lands is in my opinion necessary, to bring this action.

Even, however, if the section 15 can be so construed then it seems to me that by the very nature of the proceedings and the pleadings, the Director of Lands has in fact consented to the jurisdiction of the court. Unconditional appearance was entered by him and it is not disputed, that the Director of Lands agreed to defer any action towards the cancellation of the lease until such time as this action has been disposed of.

The preliminary objections in law made by the Learned Solicitor-General cannot therefore be entertained.

It was objected by Counsel for the plaintiff that no notice was given to the mortgagee. In the case of Egerton v. Jones [1939] 2 KB p. 702, a lessor brought an action against a lessee involding forfeiture of the lease. The lease was mortgaged. At p. 707 Green, M.R., said as follows:

"Accordingly in the case of a mortgagee by sub-demise that mortgagee is always at the risk of the lessor obtaining re-entry for breach of covenant without the mortgagee knowing anything about it; in which case the mortgagee is completely shut out. Every mortgagee, therefore, knows that that is the risk he runs. If, after taking a covenant from his mortgagor to observe the covenants in the lease, he takes no steps whatsoever to satisfy himself from time to time that no breach of covenant is taking place, he is always exposed to the risk that, behind his back and without his knowledge, the lessor will succeed in re-entry and so determining the lease with the result that all possibility of relief from forfeiture is lost to the mortgagee. That is one of the risks of the game."

It follows therefore that when a lessor takes any action that might involve forfeiture of the lease, a lessor need not inform the mortgagees of the proceedings.

The next question is whether the notice of the 8th February was validly served. The notice was served by being posted to Messrs. Niranjan and Sons and it is not disputed by the witness, Mr. Niranjan, that he did in fact receive the notice. The point was taken by Counsel for the plaintiffs that, as there were three lessees all of whom held undivided shares, under the law the notice should have been served on each of such lessees personally. Counsel cited as his authority the case of Blewett v. Blewett [1956] 2 AER 11 p. 188. In that case there were five lessees and at p. 190 Lord Wright said:

"William Blewett is no doubt one of the lessees but there is no evidence that service on him was good service on the other lessees because the finding of the Learned Judge is that there were five joint lessees."

The Solicitor-General cited in reply the case of Cannon Brewery Co. Ltd. v. Signal Press Ltd. 139 LT 384, as summarized in Volume 31 of the English and Empire Digest at p. 542. The law is set out as follows:

"Where a notice addressed to the lessee is left with the person on the premises, and there are reasonable grounds for supposing that that person will pass it on to the lessee, the service is good within the Law of Property Act 1925, section 196 (3)."

In the present case the notice was sent by post and received at the office of the firm of Niranjan and Sons, that is to say on premises, the property of Niranjan and Sons. The lease contains the names of three lessees but they are described in the lease as trading as Niranjan and Sons. On the principle enunciated in Cannon Brewery Co. Ltd. v. Signal Press Ltd., since there are reasonable grounds for supposing that the firm's Managing Partner, even though he himself is not one of the lessees, would pass it on to the lessees, I hold that proper notice was given to the lessees.

As to whether the notice is bad because reasonable time was not given for remedying the breach is a matter which I shall deal with later.

The next question is the question of waiver. It is submitted by Counsel for the plaintiffs that by accepting rent after breach there was a waiver on the part of the Director of Lands. Section 38 of the Crown Lands Ordinance reads as follows:

"The acceptance by or on behalf of the Crown of any rent shall not be held to operate as a waiver by the Crown of any forfeiture accruing by reason of the breach of any covenant or condition expressed or implied in any lease or licence under this Ordinance."

Learned Counsel for the plaintiffs submits that the word "accruing" means "going on". The Learned Solicitor-General suggests that "accruing by reason of" means "arising from the breach". With this latter contention I agree and I am satisfied, therefore, that by accepting rent after the breach had occurred, the Director of Lands did not waive any right of forfeiture resulting from the breach.

It is quite clear that the Director of Lands was aware that the plaintiffs had failed to comply with the building covenant, and it has been urged that, by standing by and doing nothing, this also constituted a waiver of forfeiture, but it is contended by the Learned Solicitor-General that mere standing by is not a waiver. In support of this contention the Solicitor-General referred to the case of Sheppard v. Allen 128 E.R. p. 32, the head note to which is quite clear and unambiguous. It reads as follows:

"If a lessee exercises a trade on the demised premises by which his lease is forfeited, the landlord does not by merely lying by and witnessing the act for six years, waive the forfeiture."

Applying this principle, I hold there was no waiver by reason of the Director of Lands merely standing by with knowledge that the building covenant had not been complied with.

The next question is the question of re-entry. It is claimed by the defendant that notice of re-entry was posted on the property on 13th June 1956 and that a copy of such notice was forwarded to the plaintiffs under cover of the letter of the Director of Lands dated 13th June. The notice was in fact wrongly posted and was reposted in a proper place on the 14th June by some person who entered on the land for a purpose other than that of posting the notice. Under section 50, Sub-section 6 (e) Land (Transfer and Registration) Ordinance, a notice may be served on a party to be affected by fixing it or a copy of it to some conspicuous part of the premises. It is claimed by defendant that all that is necessary to establish the fact of re-entry is the service of a notice and it is submitted by defendant's counsel that the correct method of re-entry is laid down in Lows v. Telford 1875 Appeal Cases p. 414. At p. 426, Lord Selbourne said:

"To such a case the law laid down by Lord Coke applies, that the lessor may by actual entry into the grant determine his will in the absence of the lessee."

In the case also cited of Jones v. Chapman, it is accurately stated by Mr. Justice Maule, that "as soon as a person is entitled to possession and enters in assertion of that possession or, which is exactly the same thing, any other person enters by command of that lawful owner so entitled to possession, the law immediately vests the actual possession in the person who has so entered. If there are two persons in a field each asserting that the field is his and each doing some act in the assertion of the right of possession, and if the question is which of those two is in actual possession, I answer that the person who has the Title is in actual possession and the other is the trespasser."

Counsel, on the authority of this case, has submitted that from the moment notice of re-entry was given, then the Director of Lands was in actual possession. But has defendant acquired the title to the property by leaving a notice posted on the land? Counsel for the plaintiffs submits that the Director of Lands must prove to the satisfaction of the Registrar under section 51 of the Land Transfer and Registration Ordinance, lawful re-entry and recovery of possession by the lessor, the Director of Lands.

Counsel submitted, therefore, that the lessor must re-enter and actually recover physical possession or commence an action for possession. As I understand him, he contends that unless he can obtain peaceful recovery, that is to say, when the land is vacant, abandoned or where the defaulting lessee gives up physical possession, then the lessor has not re-entered and recovered possession, and his only method of obtaining possession is by asking the Court for an order for ejectment.

In an Australian case, Tattersalls Penrith Pty. Ltd. v. Permanent Trustee Coy. Ltd., referred to at p. 238 of "Baalman on the Torrens System in New South Wales", Roper, J., said:

"In my opinion, in order to effect a re-entry the lessors or their agent must obtain possession to the physical exclusion of the lessee or anyone properly claiming under him."

Section 55 of the Real Property Act 1900 of New South Wales is substantially the same as section 51 of our Ordinance. It reads as follows:

"In any case under section 79 of the Act the Registrar-General upon proof to his satisfaction of lawful re-entry and recovery of position by a lessor shall note the same by entry in the register book and, the estate of the lessee in such land shall thereupon determine but without releasing him from his liability in respect of the breach of any covenant in such lease expressed or implied."

"The Registrar, upon proof to his satisfaction of lawful re-entry and recovery of possession by a lessor in pursuance of section 49 hereof, shall note the same by entry in the register, and the estate of the lessee in such land shall thereupon determine but without releasing from his liability the lessee in respect of the breach of any covenant in such lease expressed or implied . . ."

"To justify a notification of a determination of a lease pursuant to section 55, the Registrar-General must be satisfied that there has been a lawful re-entry and recovery of possession by the lessor."

While I am not bound by the opinion expressed by Baalman and while the Australian case is not binding on this court, the opinion of the Court is a persuasive decision and, in view of the similarity in the language of the two sections, it seems to me that the principles enunciated by Roper, J., can properly apply to the matter now before the Court.

The Registrar cannot, under section 51 of our Ordinance, note the entry of the lessee until he is satisfied that the lessor can prove lawful entry and recovery of possession. Only on such proof to his satisfaction is the estate of the lessee determined. Until such determination therefore, the title is still in the lessee.

The lessor in the present case has not recovered possession of the land to the physical exclusion of the lessee. The title is still in the lessee, and, applying the principle laid down in Lows v. Telford, since he has the title, he is in possession.

I hold, therefore, that there has been no proper re-entry by the Director of Lands, justifying any notation by the Registrar under section 51.

As to the notice, it is laid down by the authorities that the notice shall be reasonable. In the present case, the plaintiffs were called upon to erect a building, costing not less than £2,500 within four months from a certain date. The question is, having regard to the necessity on the part of the plaintiffs first to arrange finance, secondly to have prepared proper plans by a qualified architect, and thirdly the necessity for submitting the plans and specifications to the City Council for approval, whether the notice was reasonable. It appears to me that the time given for compliance with the order was not reasonable. I am not overlooking the evidence of Mr. J. D. Wright, who gave it as his considered opinion that the work could be done in nine weeks. It seems however, that Mr. Wright overlooked many factors and assumed that all material required for the construction of the building was immediately available.

He admitted as much himself in evidence and, while I hold that the notice was in the proper form and no exception can be taken to its form, I think the notice is bad by reason of the fact that insufficient time was given to the plaintiffs. I think the plaintiffs themselves did not behave as reasonably as they might have done and I think it is fairly safe to assume that, if they had frankly informed the Director of Lands that the time given was too short, the Director of Lands would have extended the time. Plaintiffs did not choose to do so until they had actually started building, which was a matter of a week or so before the notice of 13th June was issued. I do not think, however, that the plaintiffs should be penalized on this account, holding as I do, that the time given was unreasonable. Nor do I think that in the circumstances the plaintiffs can be held to have been guilty of laches.

Even accepting that the work could be done in nine weeks, this would leave approximately eight weeks in which to arrange finance, prepare plans and specifications, and to obtain the approval of the City Council.

I think that in all circumstances, the relief against forfeiture asked for by the plaintiffs should be granted on terms. The plaintiffs themselves have said that the work which has been commenced can be completed within five months. I therefore grant relief against forfeiture subject to the completion by the plaintiffs of the building on Lot 7 within five months from the date of this judgment.

Fiji Law Reports

Niranjan & Sons v Attorney-General [1957] FJLawRp 13; [1956-1957] 5 FLR 78 (31 July 1957)