Angamuttu v Narayan [1960] FJLawRp 6; [1960-1961] 7 FLR 36 (24 March 1960)

[1960-61] 7 FLR 36

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Civil Appeal No. 35 of 1959

Between:

ANGAMUTTU AND OTHERS
Appellants

v

JAI NARAYAN
Respondent

Native Lands Trust Ordinance (Cap. 104) — whether consent of Board to transfer obtained — onus of proof.

The respondent, the registered head lessee of certain Native Land, sought an order for possession against the appellants in the Magistrate's Court. The appellants purported to derive their title from a transfer of a sublease of the land. Section 12 of the Native Lands Trust Ordinance (Cap. 104) provides that such a transfer without the consent of the Native Lands Trust Board by shall be null and void. The trial Magistrate granted the respondent the order sought, holding that since the appellants had failed to establish the necessary consent they were trespassers upon the land. The appellants appealed.

Held. —(1) The onus of proof that the consent of the Native Lands Trust Board was obtained rests on the person who asserts he has a right to occupy the Native Land; R. Chabildas v C. G. Patel Civil Appeal No. 8 of 1954 followed.

(2) The appellants had not attempted to show that either the consent of the Board had been obtained under s.12, or that it was not necessary to obtain it by virtue of the proviso to s.35 of the Ordinance.

Appeal dismissed.

Case cited: R. Chabildas v C. G. Patel Civil Appeal No. 8 of 1954.

R. D. Patel for the appellants.

K. P. Mishra for the respondent.

This is an appeal from the decision of the Magistrate's Court of the First Class sitting at Ba dated 28th November, 1959, whereby the plaintiff obtained an order for possession of a part of the Native Land known as Natawa No. 3 situate in the District of Tavua of the whole of which area of land the plaintiff is the registered lessee, together with a declaration that the defendant appellants are trespassers and an injunction restraining them from trespassing on the land in the future.

Prior to 1932 the respondent was the Registered Head Lessee of the Native Land of which the land in dispute (an area of one and a half square chains more of less) forms a part. The Head Lease was registered in the Register of Native Leases Book No. 38 Folio 298.

On 13^th June, 1932, the respondent entered into an Agreement with one Bhanabhai for the sublease to him of the land in dispute for the unexpired period of the Head Lease less one day.

Clause 4(c) of this Agreement reads as follows:-

• "That the landlord will at the time of or before the expiration of this lease abovementioned apply for an extension or a renewal thereof and, if and upon being granted such an extension or renewal the landlord will give to the tenant an extension or renewal of this lease for a further period not exceeding ten years".

The original Head Lease was not produced in evidence at the trial and there is no evidence of its date of expiry.

On 23rd January, 1941, Bhanabhai assigned the sublease to Thakorbhai by an endorsement on the Agreement.

On 6th November, 1941, the Native Lands Trust Board granted a renewal of Registered Native Lease, Book 38, Folio 228, i.e. the Head Lease for a period of 29 years from 5th December, 1940.

On 1st May, 1944, Thakorbhai further assigned the sublease to one Lachmi by an endorsement on the Agreement. On that date the respondent endorsed his consent to both this Assignment and the previous Assignment on the Agreement. Lachmi died on 18th January, 1945, and Probate of her Will, was granted to her executor, her husband, Angamuttu on 15th October, 1958. By her Will she left all her property to her two sons Subermani and Appau in equal shares. Angamuttu, Subermani and Appau are the defendant/appellants in this case who remained in occupation of the land after the death of Lachmi.

In the Court below the plaintiff/respondent sued for possession on the ground that the defendant appellants were occupying the land in dispute to either—

(1) as tenants holding over on a year to year basis whose tenancy had been determined by Notice to Quit; or
(2) as trespassers.

The respondent conceded in the Court below that the notices to quit served were defective and that he could only succeed in this action if he could prove the appellants were trespassers.

The learned trial Magistrate held that since the appellants (or Lachmi through whom they claimed) came into possession of this Native Land in 1944, the consent of the Native Lands Trust Board under section 12 of the Native Lands Trust Ordinance (Cap. 104) was a prerequisite to their holding a valid title.

There is nothing on any of the documents in this case and no evidence has been given to show that the consent of the Director of Lands or of the Native Lands Trust Board was obtained before any of these dealings with the land were carried out.

Section 12 of the Native Lands Trust Ordinance (Cap. 104), which came into effect on 7th June, 1940, lays down that every transfer of or dealing with Native Land held under a Native Lease after the passing of that Ordinance without the consent of the Native Lands Trust Board shall be null and void.

The learned trial Magistrate went on to consider on whom rests the onus of proof of proving the consent of the Native Lands Trust Board in these cases.

This point was decided by Sir Ragnar Hyne, C. J., in the case of R. Chabildas v C. G. Patel (Civil Appeal No. 8 of 1954) when he ruled, as quoted by the learned trial Magistrate:—

"Once the plaintiffs set up their own title, the Native Lease, it was for defendant to show that he had a valid right to the premises he occupied and to do this it would be necessary to show, inter alia, that he had the consent of the Native Lands Trust Board."

I have examined the judgment in that case and I do, with respect, entirely agree with that decision.

The onus of proof that the consent of the Native Lands Trust Board was obtained rests on the person who asserts he has a right to occupy the Native Land concerned.

The learned trial Magistrate then held that since the defendants in this case had done nothing to discharge that onus of proof they had not shown the Court any right to be on the land.

The defendants have appealed on the following grounds:-

(1) That the learned Magistrate, A. J. Fisher, Esquire, who delivered the said judgment erred in holding:—

• (a) That the tenancy agreement was void.
• (b) That the terms of the New Lease Regd. No. 7165 governed the rights of the parties.

(2) That the learned Magistrate erred in not holding:—

• (a) That the tenancy agreement was governed by the terms of the Old Lease.
• (b) That the Old Lease was not proved and therefore the plaintiff had not proved his case.
• (c) That it was not established that Native Lands Trust Board Ordinance (Cap. 104) s. 12 applied to the case.
• (d) That it was no proved that tenancy had expired or had been validly terminated.

I have carefully considered all that has been argued on behalf of the appellants. The fact remains, however, that they claim to be entitled to occupy this Native Land through a person whose alleged title arose after the Native Lands Trust Ordinance came into effect in 1940. The onus of proof lay on the defendant/appellants therefore to shew either that the consent of the Native Lands Trust Board to their occupying the land had been obtained under section 12 or that it was not necessary to obtain it by virtue of the proviso to section 35 of that Ordinance. This the defendant/appellants made no attempt to do.

This was the position whether their alleged rights were derived from either what was called "the old lease" or" the new lease" in this case.

In these circumstances the learned trial Magistrate was correct in holding that they were not tenants but trespassers. The appeal must be dismissed.